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I think we all agree murder is wrong. Not everyone believes same sex marriage is. Even fewer believe that selling goods or services used in the ceremony or celebration is wrong.
But if we're interested in allowing dissent and diversity in thought and belief, we allow the few to act on those beliefs if they are not harming others or imposing a great burden on society as a whole - whether we agree with them or not.
I'm happy that atheists established in court their right to secular rehab. It could be argued that they can go to AA and not participate in prayers and whatnot. It could be argued that AA's assertion that they are open to everyone including atheists and agnostics, that your higher power can be anything, that G.O.D can be a Group Of Drunks or the doorknob that gets you in the room means it is not an imposition of religion. But in the end, the court ruled correctly that an atheist should not have to participate in a program that offends their lack of religion.
So I think it is appropriate to allow a tiny minority of people the right to opt out of any participation in same sex wedding ceremonies and celebrations they feel is wrong FOR THEM.
Last edited by Oldhag1; 04-07-2015 at 07:37 PM..
Reason: Bringing up partisan politcs in a thread not specifically about that is always off topic.
If a law requires a person violate their faith to continue operating a business as the law requires, I'm not so sure it's not discriminatory to religion. If a Catholic hospital can decline to provide abortion services, why shouldn't a person who owns and operates a business be allowed to decline to take any part in a same sex marriage? If someone feels so strongly that they are willing to risk their livelihood to the backlash of declining these services, I think they should be allowed to. The vast majority of businesses will continue to provide services to same sex weddings, and the merchant who isn't participating does not in any way impede the wedding from taking place, even if the couple need to bake their own cake or pick wildflowers from a field.
I'm not suggesting companies be allowed to engage in blanket discrimination of all gays on all occasions. But I do think they should be allowed to opt out of appearing to condone a ceremony that they strongly feel is immoral. People have been able to successfully contest penalties imposed by the state when they declined to participate in activity contrary to their faith. This is nothing new. When state legislatures demanded students recite the Pledge of Allegiance in the 30s, Jehovah's Witnesses were able to secure an exemption from the requirement in 1943. And this was before the words "under God" were added. JWs have also been allowed exemption from having to apply for permits to go door to door in another municipality. And then there are conscientious objectors to military service. The Federal RFRA was written in response to a religious freedom case lost in the courts, on peyote's use by Native Americans. I don't think there is any lack of precedent to overturn laws thought to favor no particular religion when it turns out there are people of faith who object.
I am in full agreement that AA or 12 step rehab should not be forced on atheists... or anyone really. But we have a lack of secular evidence based rehabs supported by the courts. So despite the courts ruling, many people feel that jail or AA/NA are their only two choices. And that needs to change.
You have to be able to differentiate between 1) a law that is neutral to religion but affects religious adherents, and 2) a law that is not neutral to religion. The criminalization of murder is a law that is neutral to religion, but which affects religious adherents who have a religious practice of human sacrifice. There is no 1st Amendment issue there. A law that bans headscarves in public--that is a law that is intended to affect religion, is not neutral, and raises a 1st Amendment issue.
Your Catholic hospital/abortion services example is a specific carve-out from federal law, not a 1st Amendment issue.
If someone feels so strongly that they are willing to risk their livelihood to disobey a neutral law, then I saw let them disobey the law and suffer the consequences. Some states prohibit discrimination on the basis of sexual orientation by businesses (like other states and federal law do on the basis of race, gender, age, disability status, religion, etc.). In those states, the baker is legally obligated to make the cake. They can disobey the law and be sued for discrimination on the basis of sexual orientation.
What you are arguing for is blanket discrimination of all gays on all occasions, even though you don't want to call it that. Federal RFRA 1) is not the 1st Amendment, and 2) has no impact on state anti-discrimination laws. What you are arguing for is overturning state laws protecting against discrimination on the basis of sexual orientation.
If a carve out for Catholic hospitals can be done, a carve out for other issues of faith can be done.
Allowing rehab as an alternative to jail and/or requiring rehab as part of parole or probation is theoretically religiously neutral, because secular options do exist. However, if it is unduly difficult for an atheist to find a secular option, then it isn't religiously neutral in practice.
If a law punishes people for exercising their faith, it isn't religiously neutral in practice.
If a carve out for Catholic hospitals can be done, a carve out for other issues of faith can be done.
Allowing rehab as an alternative to jail and/or requiring rehab as part of parole or probation is theoretically religiously neutral, because secular options do exist. However, if it is unduly difficult for an atheist to find a secular option, then it isn't religiously neutral in practice.
If a law punishes people for exercising their faith, it isn't religiously neutral in practice.
You misunderstand the analysis necessary.
1) Carve-out in duly-passed democratic law that exempts Catholic hospitals from requirements to provide otherwise required birth control services--permissible. Could be analyzed under the Establishment Clause, but would not raise a significant issue.
2) Mandatory rehabilitation in a faith-based rehab program--Establishment Clause issue. The government cannot coerce participation in a religious activity. Mandatory faith-based rehab is just that sort of coercion and therefore raises an Establishment Clause issue that courts are finding unconstitutional. If a secular alternative is available, then there is no longer an Establishment Clause issue. If an alternative is "unduly difficult" to access, then there is a factual question of whether there is a genuine secular alternative.
3) Anti-discrimination law makes it unlawful to refuse to provide commercial services to someone on the basis of sexual orientation. Business owner claims violation of Free Exercise Clause. The questions are 1) Is the law a neutral law of general applicability? The answer is yes. 2) Is there some other right that can be attached to the Free Exercise claim? The answer is no. The 1st Amendment analysis is over. The business owner can go to the legislature and push for repeal or modification of the anti-discrimination statute in order to allow discrimination on the basis of sexual orientation. Those of us who disagree with that policy can continue to support the anti-discrimination statute.
There's a certain hypocrisy in saying one is not participating/condoning/violating one's religious beliefs by providing services to a same sex wedding, while at the same time, an atheist is offended by prayers they do not have to participate in.
There's a certain hypocrisy in saying one is not participating/condoning/violating one's religious beliefs by providing services to a same sex wedding, while at the same time, an atheist is offended by prayers they do not have to participate in.
I never said that an atheist should have some right to limit prayers they do not have to participate in. I did state that there is a problem with the government forcing an atheist to go to a faith-based substance abuse treatment program.
As Justice Scalia stated, religious exemptions to neutral laws of general applicability "'Laws,' we said, 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. Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
Valid and neutral law of general applicability: anti-discrimination law that prohibits discrimination on the basis of sexual orientation. Does the law interfere with religious practice? Yes, according to you. Does that religious practice excuse you from complying with the law? No, according to Justice Scalia. I'm with him on this one.
I never said that an atheist should have some right to limit prayers they do not have to participate in. I did state that there is a problem with the government forcing an atheist to go to a faith-based substance abuse treatment program.
As Justice Scalia stated, religious exemptions to neutral laws of general applicability "'Laws,' we said, 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. Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
Valid and neutral law of general applicability: anti-discrimination law that prohibits discrimination on the basis of sexual orientation. Does the law interfere with religious practice? Yes, according to you. Does that religious practice excuse you from complying with the law? No, according to Justice Scalia. I'm with him on this one.
The Smith opinion is why the Federal RFRA was passed by Congress, and why so many states are now passing them. RFRA laws have a higher standard for determining whether laws unduly restrict religious freedom. I would suggest that this isn't a cut and dried closed case just yet.
Requiring children in school to recite the Pledge of Allegiance was considered a compelling state interest advancing national unity during WWII. This requirement was overturned in court, when JW children were suspended for not participating because it was against their religion, and appealed. This was prior to the words "under God" being added to the pledge. There is precedent for not being forced to do something against your religion, no matter how other people feel about it.
Post RFRA, we had the Hobby Lobby decision. And while the justices made pretty clear that the decision won't pave the way to permitting racial discrimination due to religious objections, I wouldn't rule out the possibility that they could decide the state doesn't have a compelling interest in forcing a few fundamentalist Christians to provide services for same sex weddings if they otherwise treat gays fairly.
In general, I don't favor passing laws when the free market will solve the problem. I believe the free market will take care of businesses who are considered hateful and intolerant by the LGBT community and allies. This is not 50 years ago, when businesses could openly discriminate and fly under the radar because few outside of the local community would hear about it.
Incidentally, it isn't me personally who thinks providing goods or services for same sex weddings is immoral. I would have no problem with it. But I am willing to defend the rights of people I disagree with.
The Smith opinion is why the Federal RFRA was passed by Congress, and why so many states are now passing them. RFRA laws have a higher standard for determining whether laws unduly restrict religious freedom. I would suggest that this isn't a cut and dried closed case just yet.
Requiring children in school to recite the Pledge of Allegiance was considered a compelling state interest advancing national unity during WWII. This requirement was overturned in court, when JW children were suspended for not participating because it was against their religion, and appealed. This was prior to the words "under God" being added to the pledge. There is precedent for not being forced to do something against your religion, no matter how other people feel about it.
Post RFRA, we had the Hobby Lobby decision. And while the justices made pretty clear that the decision won't pave the way to permitting racial discrimination due to religious objections, I wouldn't rule out the possibility that they could decide the state doesn't have a compelling interest in forcing a few fundamentalist Christians to provide services for same sex weddings if they otherwise treat gays fairly.
In general, I don't favor passing laws when the free market will solve the problem. I believe the free market will take care of businesses who are considered hateful and intolerant by the LGBT community and allies. This is not 50 years ago, when businesses could openly discriminate and fly under the radar because few outside of the local community would hear about it.
Incidentally, it isn't me personally who thinks providing goods or services for same sex weddings is immoral. I would have no problem with it. But I am willing to defend the rights of people I disagree with.
There is no federal anti-discrimination statute that protects against discrimination on the basis of sexual orientation. RFRA (and Hobby Lobby) does not apply to the states. Smith remains the framework for analysis of state anti-discrimination laws. I gave you the Smith analysis before. It is easy.
For states that adopt their own RFRA to permit discrimination, I hope they suffer more than Indiana for their stance.
It doesn't condone or honor anything. It also honors a human being's right to live how they see fit.
As far as having the right to provide goods and services, they do have the right, all they have to do is not open up a business in the first place. But, once you apply for a business license, there are rules you actually agree to when you get that license, you accept the terms.
Do you have a link to such rules? I am thinking not. Keep in mind that they were serving gays just not wanting to play an active part in their wedding ceremonies which would just step all over their religious rights. Also, this is just not about Christians, many religions won't want to participate based on their religious rights.
Quote:
Originally Posted by TheCityTheBridge
There is no federal anti-discrimination statute that protects against discrimination on the basis of sexual orientation. RFRA (and Hobby Lobby) does not apply to the states. Smith remains the framework for analysis of state anti-discrimination laws. I gave you the Smith analysis before. It is easy.
For states that adopt their own RFRA to permit discrimination, I hope they suffer more than Indiana for their stance.
When you force someone to do something against their very core beliefs, the outcome isn't going to be good for anyone involved. That is sort of my comparison between the two scenarios presented. There has to be a reasonable accommodation made. With rehab or jail, maybe working through programs online with a choice. Choice is good.
It is unfortunate that more people don't really understand the argument and just react according to the one form of social media that they are plugged into. People don't seem to have read the 1st Amendment, have a complete misunderstanding of the purpose of RFRA beyond one area of paranoia and they refuse to listen to reason.
I, too, suspect that when all is said and done, there will be exemptions when it comes to playing a part in what is not allowed by one's religion. Marriage one man and one woman is nearly as old as time. Christians first then I suspect moving on from there but hopefully these exemptions and the decision surrounding it will clarify much more that "gay" wedding participation and make for reasonable accommodation of people's core beliefs.
So you obviously feel that no matter what a religious person feels, they need to follow the law no matter how they personally interpret their faith.
Okay... then what is your take on sentencing people to AA/NA and/or 12 step based rehabs - which can be interpreted as spiritual in nature, offensive to atheists or agnostics, or possibly violations of people's faith in other ways. If they chose to violate the law, are they thus subject to penalties that everyone else who violates the same law, regardless of belief or lack thereof?
A wise man and occasionally revered man once said: "Render unto Caesar the things that are Caesar's, and unto God the things that are God's".
If baking an cake for profit somehow can show violate their religion they should not bake for ANYONE. Businesses exist to serve people and expecting to agree with or hold all people to your own views is wrong. I see no first amendment issue. It would be an first amendment issue if for instance someone were forced to perform an gay marriage.
In the 2nd case people have the choice of jail or an court approved program and not all programs have an religious component.
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