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Help me out with some research?

Rob Tisinai

September 26th, 2013

Some of our opponents argue that the First Amendment guarantee of religious freedom means that individuals and groups who oppose same-sex marriage must be exempt from laws requiring them to recognized same-sex marriages as marriages.

Could anyone provide me with links to the very best arguments for that view?

Sometimes it’s fun to point out our opponents’ silliest arguments, but that’s not what I’m looking for here. I want to examine the reasoning from the most serious and intelligent folks on the other side.

Much thanks.

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Ben In Oakland
September 26th, 2013 | LINK

We have laws at EVERY level of government which forbid discrimination on the basis of religious belief, yours OR mine. Trying to find exceptions to those laws merely underlines why we have them in the first place.

In an indirect response to your request, there was this case out of Canada. I don’t know who wrote the original comments. No link, unfortunately.

Every so often, a decision is made in another country with marriage equality, which the Religious Right in the United States then adds to its whining arsenal, which they use to frighten their followers about What Will Happen when marriage equality comes to this country. I predict that this will be one of those court cases. It’s actually a completely sensible ruling:
Saskatchewan’s top court has said marriage commissioners cannot use religion to say “no” to nuptials for same-sex couples.
The Appeal Court had been asked by the government to rule on a proposed provincial law that would have allowed commissioners to cite religious grounds in refusing to marry gays or lesbians.
The appeal panel’s unanimous decision released Monday said the law would be unconstitutional and would amount to discrimination.
[…]
[President of the Gay and Lesbian Community Cory] Oxelgren said marriage commissioners perform a civil service and are not supposed to discriminate.
“If the government allows that to go ahead, what’s there to stop another person in another department or another agency from saying, ‘Well, I don’t agree with this so I would like to opt out.’ The answer is you can’t. You are an agent of the government and you follow the laws.”
It really is that simple. Just as in the United States, religious congregations are pretty much able to do what they want within their churches, but don’t get to make up new rules when they act as part of secular society [see: Catholic charities, that pavilion in New Jersey, etc.], this court case isn’t infringing on what churches are able to do and believe. It’s simply saying to commissioners who work for the government, “You have a job you were hired to do, and these are the laws. Don’t like it? Get a new job.”
One of the judges made a really interesting point in her opinion:
Justice Gene Ann Smith said the religious objection was secondary.
“These marriage commissioners are not themselves compelled to engage in the sexual activity they consider objectionable. Their objection is that it is sinful for others to engage in such activity,” wrote Smith.
“It is therefore arguable that the interference with the right of marriage commissioners to act in accordance with their religious belief … is trivial or insubstantial, in that it is interference that does not threaten actual religious beliefs or conduct.”
Imagine that! The religious lives and practices of the Religious Right don’t automatically include the lives and practices of other people who don’t share their beliefs? It’s so sane…Tony Perkins will never accept it.

Richard Sparrow
September 26th, 2013 | LINK

Whereas I cannot help you with the pro-religious freedom arguments, I can propose that the issue be examined through the lens of 50 years ago. How much of the racial civil rights opposition was religious in nature? For example, if one’s church supported segregation as Biblical doctrine, was one allowed to discriminate? The civil rights laws from the 1960’s seemed to say “no”. Even now, when that particular battle is fought, the side of equality prevails. If the religious freedom arguments become successful; then the rights of non-whites, non-males, non-Christians, non-“true Americans”, etc. are in danger and the social experiment of our country will fail.

Priya Lynn
September 26th, 2013 | LINK

Thanks for posting that Ben, Justice Gene Ann Smith said it perfectly and I’m saving this for future use.

Ray
September 26th, 2013 | LINK

[sarcasm] Read the Bible, stooped. That’s the best argument. [/sarcasm]

cowboy
September 26th, 2013 | LINK

You might start here:

http://www.deseretnews.com/article/865586176/LDS-Church-creates-new-web-materials-in-support-of-religious-freedom.html?pg=all

There are links within this article you should check.

BillC
September 26th, 2013 | LINK

You can find several serious reviews of the general topic of discrimination, exemptions, religious exemptions and religious freedom over at The Volokh Conspiracy legal blog. Here are three links to individual articles or subject searches with individual articles included.

http://www.volokh.com/2012/11/02/amicus-brief-in-elane-photography-v-willock-the-new-mexico-wedding-photography-case/

http://www.volokh.com/2004/03/16/arresting-clergy-for-performing-same-sex-marriages/

http://www.volokh.com/?s=religious+freedom+exemptions+%22same-sex+marriage%22&submit=

Eugene Volokh is a law professor at UCLA with a libertarian focus. Not doctrinaire but open to discussion.

Hope these help you, Rob.

markanthony
September 26th, 2013 | LINK

I would suggest a review of the briefs and the dissenting opinions associated with “EMPLOYMENT DIVISION v. SMITH” 1989

While this case did not deal with gay rights particularly, it did deal with the rights of religious exceptions concerning otherwise valid state laws.

Interestingly the opinion is written by Scalia in favor of state law.

http://www.oyez.org/cases/1980-1989/1989/1989_88_1213#sort=seniority

Al
September 26th, 2013 | LINK

I read a recent article online, an interview with an academic/author (?). Basically freedom of religion implies choice, of which one choice is none. It follows that that choice does not allow for one choice to supercede another (otherwise there is no freedom.) Its clear to me that our “christian” opponents activities consider their religion as overriding that choice even though they may not say so (after all you will lose support from other groups). (Maddow comes to mind, if I find it I’ll update.)

Ben In Oakland
September 26th, 2013 | LINK

Priya, I thought it might be useful.

Al
September 26th, 2013 | LINK

An additional point – I’ve read a phrase to the effect that your government can not pass any laws regarding religion (pardon my Northern lack of legal knowledge). Over time laws banning homosexual acts were based on physical, mental and societal well being as well as religion. There is no longer a commonly held belief of danger physically, mentally or to society from homosexual activity (sorry Brian, even none to families – we’ve had same sex marriage here for 7 years and we’re still chugging along, churches are still standing). The only remaining argument is religion – and if you read the Walker decision, that was not presented in court, and if it was, it should have been disallowed – the bible can not be used as evidence in a court of law. It follows that laws should not be passed based on beliefs presented there.

David Sutphen
September 26th, 2013 | LINK

Boy Scouts of America v. Dale
http://www.law.cornell.edu/supct/html/99-699.ZS.html

It doesn’t touch directly on the issue of same-sex marriage, but it is clearly an extremely relevant opinion.

Rick2L
September 26th, 2013 | LINK

I would argue that since it is impossible to separate a man from his most closely held and character-forming beliefs, any ruling requiring a private individual to violate even the least of these beliefs is a tyranny insupportable to our constitution. While it may or may not be proper for a government to require its agents to obey its rules evenly, for the government to extend this requirement to private citizens overreaches, and runs directly counter to the establishment clause in both that clause’s interpretation by the courts, and its literal meaning as written.

Rick2L
September 26th, 2013 | LINK

Oh- p.s. It’s a load of crap, but…

Rob Tisinai
September 26th, 2013 | LINK

Thanks, everybody, but as interesting as this is, it’s still not what I’m looking for. Some people believe that religious means no one should have to recognize same-sex marriages in violation of their religious beliefs.

For instance:
*Business owners should not have to provide spousal benefits.
*Public officials should not have to recognize same-sex marriages as marriages

That sort of thing. I want the best theoretical grounding for that sort of view.

TampaZeke
September 26th, 2013 | LINK

You may find a few serious arguments but I’ll be surprised if you find any intelligent ones.

Timothy Kincaid
September 26th, 2013 | LINK

Rob,

For the best arguments I’d recommend not going to our opponents, but looking for pro-gay libertarians. This way you’ll avoid anti-gay rhetoric which distracts from the argument.

They are coming from the perspective that it is authoritarian to force bakers to bake the cake that you want or for photographers to be required to photograph the events that you want photographed irrespective of their own values, desires, or beliefs. They are, of course, right.

They avoid all the stupid ‘rights of a clerk outweigh the law’ or ‘business owners can veto marriage licenses for their employees’ nonsense and focus on the heart of the matter, not the incidentals, exceptions, or extremes.

Ned Flaherty
September 27th, 2013 | LINK

Rob, you asked for “intelligent + serious” reasoning.

None of our opponents use intelligent reasoning (i.e., facts + logic). All of them rely upon a “my-religion-is-superior-to-yours-and-that’s-all-that-matters” stance.

But several authors are extremely “serious” which may be useful.

Ryan Anderson is a single, 31-year-old, arch-conservative, Roman Catholic who has dedicated the best years of his life to helping NOM, Heritage Foundation, etc. oppress LGBT individuals, couples, and their children. All of his social theories, economic posturing, cultural prejudices, etc. arise out of the official Roman Catholic doctrine still taught by all of his various Popes: all human sexuality is solely for procreation, and is never to be enjoyed. He is deadly serious.
http://whatismarriagebook.com/interviews/

Alliance Defending Freedom is a right-wing, arch-conservative law firm that funds and fights many anti-LGBT cases nationwide. Their legal briefs, usually publicly available, often contain the arguments you are seeking.

Robert George authored the infamous “Manhattan Declaration” (whose half million co-signers have vowed to break the law rather than recognize same-gender civil marriage anywhere, ever) and is formally affiliated with more anti-LGBT organizations than any other single person. He helped launch the famously flawed Regnerus report. He co-founded NOM and also is an arch-conservative Roman Catholic with the same superstitions as Ryan Anderson (they wrote an anti-LGBT, anti-same-gender marriage book together).

Let me know if you need more.

NFlaherty@MarriageEquality.org

Marci Wyzdyx
September 27th, 2013 | LINK

I am partial to Justia.com for legal decisions and analysis.

http://www.justia.com/search.py?cx=001017683474852908061%3Aoct7h3tcday&q=freedom+of+religion&sa=Search+Justia&cof=FORID%3A11

JHW
September 27th, 2013 | LINK

Maybe these are closer to what you’re looking for?
– This one is the most recent (I think) of a series of letters a group of law professors have sent to legislatures considering marriage equality legislation, arguing for including broad protections for small businesses in the legislation: http://mirrorofjustice.blogs.com/files/mn-main-letter-pdf-1.pdf
– The Andrew Koppelman piece in this law review symposium (it’s titled, cleverly, “You Can’t Hurry Love” and begins on p. 125) makes an argument for religious exemptions to sexual orientation anti-discrimination laws: http://www.brooklaw.edu/~/media/PDF/LawJournals/BLR_PDF/blr_v72i.ashx
– Here is an article from law professor Thomas Berg (also one of the authors of the above letter) arguing that supporters of same-sex marriage should recognize that some of the best arguments for it also support exemptions for religious believers: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1584965

These largely aren’t from “our opponents” but they provide arguments for religious exemptions. They don’t rest them on the First Amendent, though, which under Employment Division v. Smith permits laws of general applicability even if they burden religious belief.

Jim
September 27th, 2013 | LINK

Thank you, Ned Flaherty, for pointing out what should be obvious, “None of our opponents use intelligent reasoning (i.e., facts + logic)”. An as an extension to your statement, religious dogma, quotes from whatever religious book, or “infallible” statements, cultural traditions, etc don’t count as FACTS. Facts have to be universally provable and peer reviewed. These facts are the foundations of any real logical argument… and to borrow a phrase, you can’t build on a foundation of shifting sand and expect the house (or argument)to stand.

markanthony
September 27th, 2013 | LINK

Speaking to Tim Kincaid’s point, Ilya Shapiro of the CATO Institute has written extensively on the issue of religious liberty. You can find his writing on CATO web site. It seems as if alot of the well-thought out arguments are going to be associated with the Contraceptive Requirement in the recent health care law. I would imagine these arguements are going to be piggybacking on one another. The “Hobby Lobby” case would be of particular interest since it invovle a complete secular business with a secular purpose whose owners still want to run it by their well established religious principles (i.e. deny birth control coverage to employees).

Please note this Amicus is filed on behalf of pro-gay CATO and co-authored by John Eastman.

http://www.cato.org/sites/cato.org/files/pubs/pdf/Wheaton-College-filed-brief.pdf

I would also like to point out that the libertarian arguments in the recent New Mexico photography case rested on Free Speech grounds, not Religious Freedom grounds. So that might not be the direction you want to go in.

Hue-Man
September 27th, 2013 | LINK

Ben in Oakland. Here’s the link to the Saskatchewan Court of Appeals decision. http://canlii.ca/en/sk/skca/doc/2011/2011skca3/2011skca3.html

A lawyerly discussion of the case. http://www.thecourt.ca/2011/01/18/marriage-commissioners-reference-much-ado-about-same-sex-i-dos/

A quote from thecourt.ca article: “But also, there is the overarching issue: should religious rhetoric be injected into what is, at its core, a secular position that was created to perform non-religious civil marriages as an alternative to religious solemnization?

Although the debate before the Court was highly charged due to polemical positions on same-sex marriage, the amendments would have had the troubling effect of adding religious content to an inherently secular public service.”

Marcus
September 27th, 2013 | LINK

Rob, what do you mean by “recognize”? I suspect that legally, there’s a difference between, say, refusing to provide spousal benefits and refusing to provide a religious sacrament meant for married couples.

Ben in Oakland
September 28th, 2013 | LINK

Thanks. Hue.

Secret Advocate
September 28th, 2013 | LINK

Rob:

You have asked for links to the very best arguments in favor of the position that persons in for-profit commercial enterprises should be able to exempt themselves from generally applicable laws if compliance with the laws, in their view, would violate their religious beliefs.

Markanthony referred above to the Hobby Lobby case, which the Solicitor General has just asked the Supreme Court to hear. In the case, the owners of a business are challenging the federal Department of Health and Human Services regulation adopted under the Affordable Care Act (“Obamacare”) which requires the business to provide health benefits coverage to its employees which includes coverage for contraceptive medications that cause abortions.

At the bottom of this link, you can read the legal briefs (on both sides of the issue) and the court decisions:
http://www.becketfund.org/hobbylobby/

Perhaps the briefs in support of Hobby Lobby, as well as the Tenth Circuit’s decision, would provide you with what you need.

If the Supreme Court agrees to hear the case, you can follow the progress of the case and read court filings on the SCOTUS Blog site.

The issue in the Hobby Lobby case actually does not involve the First Amendment. As others have stated, the Supreme Court held in Employment Division v. Smith in 1990 that the First Amendment does not allow someone to invoke religious beliefs as a ground for exempting oneself from a valid law of general applicability. Instead, the case involves the federal Religious Freedom Restoration Act, which Congress enacted in 1993 in response to Smith. RFRA applies to federal law; the Supreme Court held that Congress could not constitutionally apply it to states and local governments.

StraightGrandmother
September 28th, 2013 | LINK

I think I know what Rob is looking for.
We need to talk about the

Freedom to Worship (First Amendment Protected)
vs
Freedom to Practice your religion (which is NOT unlimited).

The first court case I would cite is a Supreme Court Case.

Reynolds v. United States (1878) stated:

“A party’s religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.”

This has yet to be overturned by the Supreme Court and as such still stands. The anti-discrimination law is the law of the land, and as such a person’s religious belief is not justification for breaking that law.

The courts have also ruled that anti-discrimination laws are not a violation of either the 1st Amendment or the Constitution. A business that is open to the general public is open to the ENTIRE public and cannot discriminate against protected classes. There are no religious exemptions. Regardless or whether you agree with the law or not, it is the law of the land and has survived the court system in many states.

Second and more recent and Scalia wrote the decision-
Employment Division, Department of Human Resources of Oregon
v.
Smith

Native Americans claimed the right to smoke Peyote as Freedom of Religion.

No, the Court said no. See there is a Difference between Freedom to Worship, which is unrestricted and Freedom to Practice your religion which may be restricted under Local, State and Federal Laws.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html

Hopefully this is what you are looking for Rob.

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