Religious Freedom and the Destruction of Civil Marriage

Rob Tisinai

February 13th, 2014

Two and a half years ago, I offered up this ridiculous, extreme scenario as I tried to puzzle out just how far the advocates of “religious liberty” want to take us:

Suppose an on-duty police officer sees a known homosexual getting stomped to death in an alley by two men shouting, “Die, faggot, die!”  He does nothing to stop it, and he lets the thugs escape, because he believes in Leviticus 20:13:

If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death. Their blood shall be upon them.

His religious beliefs make it impossible for him to intefere with what he views as God’s will, or even to hold the assailants responsible.

Should this officer be penalized?  Or would that violate his religious freedom?

That’s not ridiculous or extreme anymore. Kansas is right now passing a law that could make this a reality.

Kansas House Bill No. 2453 (already passed by the state House and on its way to the Republican Senate and Governor) begins like this:

Section 1. Notwithstanding any other provision of law, no individual  or religious entity shall be required by any governmental entity to do any  of the following, if it would be contrary to the sincerely held religious  beliefs of the individual or religious entity regarding sex or gender:

(a) Provide any services, accommodations, advantages, facilities,  goods, or privileges; provide counseling, adoption, foster care and other  social services; or provide employment or employment benefits, related to,  or related to the celebration of, any marriage, domestic partnership, civil  union or similar arrangement;

(b) solemnize any marriage, domestic partnership, civil union or  similar arrangement; or

(c) treat any marriage, domestic partnership, civil union or similar  arrangement as valid.

And later in Section 2, police and other government employees are explicitly exempted:

(d) If an individual employed by a governmental entity or other non religious entity invokes any of the protections provided by section I, and amendments thereto, as a basis for declining to provide a lawful service that is otherwise consistent with the entity’s duties or policies, the individual’s employer, in directing the performance of such service, shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer. 

That bit I emphasized is a great loophole. It means if you simply change my scenario from a gay individual to a gay couple, then police officers could invoke their religious right to let the bashing continue, and then the station would have to send out another officer — unless this would cause “undue hardship to the employer,” in which case…sorry!

(Actually, as Mark Joseph Stern points out in Slate, it may not even need to be a couple; it could be an individual as long as the officer perceives that individual as celebrating a — well, not necessarily a marriage, but even just a “similar arrangement” to marriage.)

I have to hope the bill’s authors never intended this, or even better, that I’m misinterpreting the words that appear on the page. Perhaps the gay bashing would be such clear danger to public safety that it would override this new law. But the major effect, the simpler, obviously deliberate effect, is this:

No one in Kansas will have to recognize a same-sex marriage as valid. No one. Which leads to an inevitable conclusion:

Either these religious activists are frauds who don’t give a damn about religious liberty, or they’re on a path to destroying civil marriage for everyone.

Let’s take up the fraud question first. If religious liberty is such an issue, why does the bill focus on the gender of married persons — in other words, why only carve out a religious exemption for same-sex marriage? Some religions don’t recognize the unions of those who have divorced and remarried. Or who married outside the faith. Why not include those as exemptions, too? Basically, this Kansas law privileges some religious beliefs above others, which not only raises constitutional questions, but also signals that its advocates don’t care about religious liberty in general, but only leap into action when it comes to dealing with those homosexual people. They aren’t champions of religious freedom at all. They’re just frauds.

Unless I’m judging them too harshly, and this is just a first step. Unless they’re really not motivated by anti-gay animus, and want to create this exemption for all sincerely-held religious beliefs.

In that case we face the complete destruction of civil marriage. You can always find some religious reason not to recognize a union. I listed a few above but it’s easy to come up with more. The couple’s using birth control; the man is permanently sexually incapacitated; one partner is gold-digger and married under false pretenses; the bride was not a virgin and should have been stoned the next day; the bride is a widow, and should have only married her husband’s brother.

These reasons don’t have to be good or rational or even traditional. They just have to be sincere. And what an incentive to put on a show of sincerity. Employers could calculate all the money they’d save by refusing spousal benefits to their divorced/remarried staff and pow! they have a new sincere religious belief. Hell, sudden conversions happen all the time. Sudden conversions are traditionally a cause for joy.

Once that happens, the legal status of marriage means nothing. No individual, privately or publicly employed, will be legally obliged to acknowledge married couples as married. We’ll have nothing but a loophole so big it ravages marital law to the point where nothing is left.

But let me pull back from this slippery-slope argument. Instead of spinning wild-yet-perfectly-plausible scenarios, let’s put the burden on the people pushing these laws. Let’s hammer them with a few simple questions:

If this is about the principle of religious freedom, why the narrow focus on same-sex marriage?

Do you believe all sincere religious beliefs about marriage should be likewise privileged (and if not, why not)?

Do you a have a limit, a line beyond which religious beliefs no longer supersede law (and if so, where is it and why)?

I don’t mean these as rhetorical questions. They may have answers, good ones, but I haven’t seen them articulated. And in their absence, we see only two choices: either these religious freedom advocates are frauds, or they’re initiating the destruction of civil marriage.


February 13th, 2014

Silly man, there’s no logic to their deeds, just hate. If logic was involved, they’d realize it would be struck down as unconstitutional immediately upon enactment and cost them millions in taxpayers dollars to fight it up the court ladder for which there is a logically and foregone conclusion. Waste of time.

Bose in St. Peter MN

February 13th, 2014

A couple other loopholes in the bill work directly against its intent: It never mentions job applicants or job advancement.

Competent HR departments can add a question to their forms: In light of the Kansas law allowing employees to refuse assignments which violate their beliefs related to marriage, will you be available to complete assigned tasks related to all of our clients? Nothing appears to bar not hiring people who answer No.

Even more damaging, the bill gives employers justification to survey their workers (will you be diverting certain tasks or clients?) so they can staff their teams and shifts reliably, making sure service is not disrupted. The “sincere” believers would need to be sprinkled with moderation among the employees who can do their jobs 100% of the time. Denial of prime shifts, tasks and promotions would be based on employees being a poor fit in spots with little or no backup.

All of which strikes me as appropriate. If there are times that you will refuse to do your job, you’ll need to have the courage to say so. And, as obvious as it sounds, it’s still true that the people whose careers advance tend to be the ones who do their job.


February 13th, 2014

Anthony “Fat Tony” Scalia to the rescue:

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

“To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense.”


February 13th, 2014

Normally in religious accommodation law, that kind of “undue hardship” clause means that means that the employee is required to perform the “offending” duty if assigning another employee would cause undue hardship to the employer.

Rob Tisinai

February 13th, 2014

ebohlman, that would certainly be an improvement. The law’s language could be clarified a bit if that’s what is intended.


February 13th, 2014

This law (assuming it becomes one)will not withstand judicial scrutiny. We need one of these stuck down to dissuade all the others.


February 13th, 2014

You missed a very obvious one – sincerely believing that only those married in a valid religious ceremony by clergy of one’s own denomination or tradition is the only valid form of marriage.

So, Christians can ignore the marriage of anyone not married in a Christian church, or even more narrowly, by another denomination. Members of other religions could ignore any Christian marriage, and so on.

For that matter, why couldn’t a Catholic employer refuse to recognize your divorce and send half your paycheck to your ex?

Gay Spirituality

February 13th, 2014

This Kansas law is really dreadful. Thanks for pointing to its possible unintended consequences.


February 13th, 2014

Timothy, your post is spot on. The religious right is not trying to keep the government out of religious marriages; what it wants is to inject religion into civil marriages (and every other government function), that is, to destroy civil marriage as an alternative to religious marriage.

Also, I’d like to point out that the undue hardship exception refers only to the employer’s hardship. Whether it results in undue hardship to the gay taxpayer is irrelevant according to the bill.


February 13th, 2014

Sad to see that Jim Crow is alive and kicking again in the 21st century.

Paul Douglas

February 13th, 2014

This animus is driven by fundagelical christianists.
“Religion poisons everything.”
Christopher Hitchens


February 14th, 2014

This bill, and its itineration in other states like ID and AZ, is an overriding of the US Constitution/Bill of Rights, seeking to replace secular/democratic law with “Biblical law.” Search for “Christian Dominionism/New Apostolic Reformation Theology” for the far right’s “final solution” to the “gay problem.”

Richard Rush

February 14th, 2014

Can someone help? I’ve been trying to locate Kansas on a map, and I’m embarrassed to admit that I haven’t found it yet. Is Kansas closer to St. Petersburg, Barnaul, Orenburg, Magadan, or the area that Sarah Palin can famously see from her house?


February 14th, 2014

It is doubtful there are many who actually think this could pass constitutional muster. Rather it seems to be largely politically motivated to give elected officials something to crow about to their constituents, then rail against when some “activist judge” gets in the way. We will see a lot more of this – the death throes of Straight Supremacists – before there isn’t enough interest in the back room to advance it. All such legislation – even if seriously intended to DO something to thwart the advancing “Geys” – is only viable so long as there is political advantage to be gained for those behind it. It is only a matter of time – even in Kansas – before this sort of thing is abandoned.


February 14th, 2014

They’re not interested in religious freedom or marriage. The motivation for this bill is, quite blatantly, anti-day animus.


February 14th, 2014

Animus. pure and simple.

My prediction – Summary judgment against the state if this passes.

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