Washington Attorney General Bob Ferguson is suing Barronelle Stutzman, owner of Arlene’s Flowers and Gifts, after she refused to provide flowers for a gay wedding. I have been writing about the tension between free exercise rights and anti-discrimination laws — a subject that I discussed at the conference this week at the Utah Valley University’s Center for Constitutional Studies. This is now an issue that is arising with greater regularity, including conflicts over wedding cakes and other items.
Ferguson is acting under provisions of the state’s Consumer Protection Act that bar discrimination on the basis of sexual orientation and is seeking an injunction requiring the florist to comply with the law. He is also demanding a fine of $2,000 for each violation.
The case involves the refusal to serve customer Robert Ingersoll. Stutzman insists that her religion barred such work. She described the scene: “He [Ingersoll] said he decided to get married and before he got through I grabbed his hand and said, ‘I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.’ We hugged each other and he left, and I assumed it was the end of the story.”
However, the Attorney General says that the standard is clear: “If a business provides a product or service to opposite-sex couples for their weddings, then it must provide same-sex couples the same product or service.” Advocates of such enforcement note that we long ago stopped businesses from refusing to serve people due to their race and that this is merely an alternative form of discrimination.
Recently, a same-sex couple sued over an Oregon bakery’s refusal to make a cake for a same-sex couple.
The question is whether anti-discrimination laws are cutting into free exercise and first amendment rights for religious individuals, particularly those who believe that they are engaged in a form of expression or art in the preparation of flowers or cakes. These types of expressive acts may be distinguishable from other public accommodation cases like hotels or restaurants. Even though the same religious objections can be made by an evangelical Christian hotel owner, the flower and cake makers can claim that they are engaged in a more expressive form of product. It is, in my view, a difficult question because I do not see how anti-discrimination laws could not be used to negate a wide array of expressive activities.
I have long been a critic of the Bob Jones line of cases on tax exemption. I have long held the view that we took the wrong path in dealing with not-for-profit organizations, particularly in such cases as Bob Jones University v. United States, 461 U.S. 574 (1983). We need to re-examine how anti-discrimination laws are encroaching upon religious organizations to give free exercise more breathing space in our society — a position I discussed in a book with other authors.
I find these more recent cases more difficult than the tax exemption cases. I find the analogy to race discrimination in public accommodation to be compelling. I have also been a long supporter of gay rights and same-sex marriage. However, I have serious reservations over the impact on free exercise in an area of core religious beliefs. What do you think?
Source: Seattle Times
David:
“The last time we faced a plethora of laws that were contrary to Natural Law, Thomas Jefferson wrote the Declaration of Independence and we went to war. Is that what you want for this country?”
Do you hear yourself? You want to force people to behave in a certain way under threat of violence?
What if gay marriage were just called a “devine union”? Would you be ok with that?
Bron, the ones who are wanting to force others are the homosexuals. Just look at this case with the florist. The florist is not being violent toward the homosexuals. She is the victim of their legislation. Fines and imprisonment should not be used to force people to accept homosexual marriage.
Would I be fine with calling homosexual marriage a divine union? That is a whole lot better than pretending that it is the same kind of union as marriage between opposite sex people.
lottakatz:
As I pointed out in my post: Loving v. Virginia:
The Court rejected the idea that “equal application” of Virginia’s law was enough to circumvent the proscriptions of the Fourteenth Amendment.
Likewise, the same argument against same-sex marriage doesn’t pass the “equal protection” required by the Fourteenth Amendment.
LK,
Yep, I know. More semantic slight of hand. I am always impressed by the mental gymnastics and leaps of logic achieved by those who would deprive others of their 14th Amendment rights.
Always wrong, never uncertain.
Let’s keep our collective fingers crossed for the SCOTUS doing the right thing as they did in Loving.
It is not semantic sleight of hand. It seems most of you have not studied this subject of marriage deeply enough, and you already have your own preconceived notion of what you want the outcome to be, so you fail to follow logical arguments that are outside your own working paradigm.
In Loving v. Virginia, the decision was based upon identifying marriage as one of the “basic civil rights of man,” fundamental to our very existence and survival. What they clearly have in mind here is REPRODUCTION. They reference Skinner v. Oklahoma, 316 U. S. 535, 541 (1942) which was a case about whether it was unconstitutional to sterilize prisoners. Quoting directly from Skinner:
“But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”
Clearly the argument here for marriage being a civil right is closely connected with the right to reproduce and continue a genetic legacy. With homosexual marriage, this reproductive aspect does not exist at all. The argument that gay marriage is a civil right falls flat and makes no sense whatsoever because gay marriage changes marriage into something that has nothing to do with reproduction. The other case referenced by Loving v. Virginia in regard to marriage being a civil right is Maynard v.Hill, 125 U. S. 190 (1888) which is a divorce case concerning property. We find in this case the following: “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” … It is also to be observed that, whilst marriage is often termed by text writers and in decisions of courts a civil contract — generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization — it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. This view is well expressed by the Supreme Court of Maine in Adams v. Palmer, 51 Maine, 481, 483. Said that court, speaking by Chief Justice Appleton: “When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It was of contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other.” And again: “It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is, rather, a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself; a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life and the true 212*212basis of human progress.” pp. 484, 485. And the Chief Justice cites in support of this view the case of Maguire v. Maguire, 7 Dana, 181, 183, and Ditson v. Ditson, 4 R.I. 87, 101.
So as you can see, all these cases support my perspective of marriage and every argument that I have made here. Gay marriage is not a civil right and there is no violation of the 14th Amendment by defining the union of a gay couple as something different than marriage. The only thing accomplished by changing the traditional definition of marriage is the destruction and loss of an important institution used for the continuation of civilized society through the creation of children within strong family units. The problem is that the propaganda machine of homosexuals has blindsided so many people and deceived so many. Very few people take the time to deeply study this issue. They just want to say, “let everybody do whatever they want” and they think that is best for the country and makes them a good person.
OS, They can marry persons of the opposite sex, just not each other. As Nal refers regarding Loving, they could have married any person within their own races (same sex wasn’t even on the radar at that time), just not each other so there was really no discrimination except in the most technical of manner. Didn’t work in Loving and doesn’t won’t work as an argument for same sex couples.
“Gays can marry in EVERY state within the United States.”
***************************************************
Whoopsie! I think you counted wrong.
Nine states allow gay marriage at the present time: ME, MD, MA, CT, IA, VT, NH, NY, and WA. RI has legislation in the works to allow gay marriage. Assuming it passes, that will make only ten states.
38 states ban gay marriage.
Map: http://en.wikipedia.org/wiki/File:Constitutional_bans_on_same-sex_unions_types_US.svg
davidm2575:
The same argument was used in Loving v. Virginia.
David,
Carry on there sport. The more you write, the more obvious your intolerance. Please proceed.
David,
The marriage laws do not apply equally to all because gays cannot marry in many states and they are blocked from the benefits spouses are entitled to under law. The idea that religions are being discriminated against is nonsense and is part of a religious right meme and talking point. Nothing about gays being allowed to marry whomever they wish to, discriminates against those who do not believe in gay marriage.
Gays can marry in EVERY state within the United States. I can only assume that you are not paying very close attention to what I have said. The law applies equally to everyone. Your assumption that marriage is about a right to marry anyone person desired is way off base. Are you going to argue that the arranged marriages that happen in this country should be outlawed? And now you try to frame the argument to be that I might think it somehow discriminates against those who do not believe in gay marriage? Never have I made even the slightest hint that I thought there was discrimination involved. My argument has not been discrimination, but that changing the concept of marriage so completely, to make it not about gender diversity, to make it not about reproduction, to make it about the right to choose a partnership with someone, etc. ultimately, this will be destructive to society because it is contrary to Natural Law. Issues like this florist will only escalate. The last time we faced a plethora of laws that were contrary to Natural Law, Thomas Jefferson wrote the Declaration of Independence and we went to war. Is that what you want for this country?
Sorry my friend. The principle is the same. There is little or no difference in the psychology of racism and homophobia.
All you do is invent terms for things without really defining them. The truth is that there are differences between the races. Is it racism that basketball teams hire more black athletes or that olympic swimmers are usually white? All this discrimination nonsense has brought the legal profession into disrepute because the real problem is not racism or homophobia or whatever other term you are going to invent to try and describe the problem. The real problem is creating stereotypes and then hating a person because they belong to that perceived stereotype. It is hatred based on stereotypes, not acknowledging differences between the races, or differences between gender, or differences between a person’s sexual orientation. Is the PSYCHOLOGY of racism similar to homophobia? I suppose so if you are only going to talk only about psychology, but the legal issue of gay marriage and interracial marriage are totally different. I do not support banning interracial marriage, and I find the felony charges in the 1967 legal manuscript to which you linked abhorrent. If the felony charges were created to be against a homosexual like Josh Weed for marrying his woman, I would find it to be equally abhorrent. What you can’t seem to grasp is that the marriage laws as defined in the 1990’s apply equally to everybody, heterosexual and homosexual alike. You might try to argue that a homosexual might not want to marry someone of the opposite sex, but that is a completely different issue than asking whether the law is applied equally to everyone in a fair manner.
What the bigotry illustrated by the Virginia anti-miscegenation statutes most resembles is the case of this florist whereby the State has passed laws making the florist a criminal for her religious beliefs. This case needs to be moved up to the U.S. Supreme court to get some relief for her. By far and large, my observations indicate that discrimination against religious people is way more of a problem than discrimination against gays. I have even heard people ask for laws to make it illegal for a creationist to run for public office. Can you imagine the outcry if someone asked that homosexuals should not be allowed to run for public office? The only reason the statistics don’t reflect religious discrimination is because they won’t record discrimination against the religious. I have tried it. They don’t have the category on their form, so the police say they won’t record it. It is about race and sex only. Everyone is on the bandwagon to document discrimination against homosexuals, even when it is questionable or does not exist.
http://scholar.google.com/scholar_case?case=5103666188878568597&q=388+U.S.+1+%281967%29&hl=en&as_sdt=3,43
Interracial marriage is a completely different issue because that issue never required changing the definition of marriage. Gay marriage requires changing marriage into a different institution entirely based upon different reasons for marriage. Interracial marriage never required that. It simply involved people who did not like the idea of mixed races, which has been going on since the days of Moses when his sister Miriam complained that he married interracially and allegedly God smote her with leprosy for it.
I think I let this discussion become derailed by the red herring issue of causality. To get back on track. May I respectfully suggest it is disingenuous to complain about being “bullied” when this goes on every day:
http://www.today.com/id/44684938/ns/today-today_news/t/teens-parents-after-suicide-hes-still-being-bullied/#.UX_uQUrp9D4
The CDC reports confirmed hate crimes against LGBT people rose to an all time high in 2011. The problem of hate and bullying has risen to the level of being a public health issue.
http://www.law.umaryland.edu/academics/journals/rrgc/issues/RRGC_12_140_Meneses.pdf
The arguments presented against gay marriage have the same stink as arguments against interracial marriage.
david:
I dislike intrusive government in all things. I dont understand why we need a drivers license, let alone a marriage license or a dog license.
The only view I want to impose on other people is free market capitalism but I realize in a free society that isnt right if no one wants free market capitalism. You just cannot use government to force your will on other people. That is immoral.
david:
What is natural law? I know of laws of nature and I know of the laws of our country. Do you mean the laws of God? The 10 commandments are pretty good laws and I try to follow them. I am not so good on one or two but most are pretty good. So is the golden rule and loving your neighbors as yourself.
I have been smitten with women since my first crush on Ashley Bates in 2nd grade but I knew a guy in third grade who liked Barby dolls and looking back was definitely gay. He could no more help that than I could help liking Ashley. I would be miserable if society was gay and I was heterosexual and was forced to love men because that was what I was expected to do, I imagine the reciprocal is true.
For good mental health you have to be true to your nature, you cannot make a dog a cat.
Just let people be who they are and leave them alone. Now that is natural law.
To thine ownself be true, all other can kiss my arse.
bettykath left this on another thread, but seems appropriate to post in this tread too. Thanks BK. The song you hear from the gallery is Pokarekare Ana, a traditional New Zealand love song.
Thanks, Bron. I know we are on different sides of some issues, but on this you are truly a class act. Tip o’ the hat, sir.
david:
“Sometimes that does happen later in life, like in the case of Clive Davis, but it is not really the norm.”
I have personally known a couple of men and a couple of women who did just that in their 40’s and 50’s. It isnt the norm but it isnt unusual.
I would ask what is the outcome of children of same sex couples, are they well adjusted, functioning members of society? If the answer is mostly yes, I dont see how that is damaging to society. I know many children raised in religious households with a mother and father who are seriously disturbed individuals.
What 2 consenting adults do in privacy is none of my business. If they want to get “married” more power to them. Heterosexuals have many marriage problems when both have a biological interest in their children. It boggles my imagination the problems same sex couples will have, good luck to them.
If you have a partner in life they should be legally bound to you to make life easier for both.
Bron wrote:
“If you have a partner in life they should be legally bound to you to make life easier for both”
I wholeheartedly agree. I think defining the civil partnership is important. However, I think destroying the Judaic, Christian, and Islamic concept of marriage is the wrong approach. It might in the short term make for less legal work, but I think it gets the basics of the relationship wrong and in the process creates turmoil between the major religions of the world and the secularists. Why turn society upside down just to define the rights and privileges in a civil partnership?
One premise I have is this: There are important differences between same sex partnerships and opposite sex partnerships.
You hint some agreement with this premise by suggesting additional difficulties with governing children in the same sex partnership. If we can come to agreement that there are indeed important differences between same sex partnerships and opposite sex partnerships, then the idea of legally defining them in different ways makes sense.
davidm2575,
I read the thread but never saw an answer to my earlier question. How would yours, or any other marriage be harmed in any way if two gay people who love each other want to get married? We can see many ways gay couples can be harmed, but I do not see a single way you or anyone else would be harmed or inconvenienced if any gay couple get married.
How would your freedoms or civil rights be diminished if two gay people who love each other get married. Name just one. On the other hand, if you like, I can make quite a long list of ways the civil rights and freedoms of the gay couple will be diminished if people like you have your way. Doesn’t quite balance out, does it?
Enlighten us, please. What harm?
The argument about having kids has more holes in it that all the cheese in Switzerland, and is irrelevant to boot. It is a red herring argument, just as the etiology of what causes some people to be gay is irrelevant. We are discussing two loving human beings here, not the ridiculous hyperbole of people like Rick Santorum.
Once one scratches through all the onion layers of hypocrisy, we find bigotry at the core. The same bigotry that drove the miscegenation laws that held sway until 1967 when the SCOTUS said the were illegal. You dance all around the issue of bigotry, but personally, I would have more respect for you if you just came right out and admitted it. I remember the late unlamented Jerry Falwell talking incessantly about how lesbians had sex. That man had a problem–he had sex on the brain. Let me guess, it is the icky sex thing, isn’t it?
If you are concerned about my personal bigotry, let me offer some full disclosure here. I struggle with being bigoted against you. I am very put off from discussing with someone who attempts to intimidate others with their educational degrees. I think a person’s argument should stand on its own, and I find very little value in what you have offered. You seem more like a philosophical bully who argues from dogmatism and preconceived paradigms rather than from serious inquiry into what is true. I attempt to set my preconceived notion of you aside, but I have known your type in the past and so I admit it is somewhat difficult.
You asked about my background, but I think it may have been more for the purpose of you flaunting your credentials, even though you shared nothing about your area of study which would be much more helpful. You seemed to be more intent on trying to silence your philosophical opponent based upon the authority of your credentials rather than the logical soundness of your arguments.
My formal education is in the biological sciences, particularly ecology and evolution of vertebrates. My published scientific articles deal primarily with the ecology of water snakes. I taught at the university level for 5 years, but partly because of people like you, I went into computer software development. Instead of publishing scientific articles, I now publish computer software. I admit that it is a more lucrative than publishing in science. I like the fact that logic works great with programming computer software, much better than around many scientists who have a sanctioned agenda to further atheistic research paradigms while discriminating against those who prefer a different paradigm.
The primary harm of removing the gender diversity component from the legal definition of marriage has to do with societal consciousness of exactly what marriage is. Adolescents do not have fully developed minds, and they should not have to struggle to understand what marriage is. When law and tradition properly defines the marriage relationship, it is easier for young people to understand their social roles and path in life.
I think that a societal consciousness that values gender diversity and celebrates it is better than one that attempts to make the fallacious case that there are no important differences between male and female. I think that a societal consciousness that values the concept that the man needs the woman to be complete, and that the woman likewise needs the man, is healthy and conforms to our biological imprint. I think it is good when the message is conveyed that family is a very worthwhile endeavor, that a man is really a man when he commits to a woman and makes the sacrifices necessary to create children and raise a family and be responsible in that way. All of these things get lost with gay marriage because in gay marriage, the necessity of gender diversity is said to be not important. Marriage simply becomes a decision to commit to a long term relationship based on love, but marriage is much more complicated than that. So gay marriage will lead to even higher rates of divorce and more dysfunctional marriages than what we already have. It will also lead to societal unrest between the religious and irreligious. Just look at this legal prosecution with the florist. More acts of discrimination against people of faith will happen as the homosexual agenda is embraced by all of society. Laws will no longer conform to natural law. I think most people in our society today do not even understand the concept of natural law. They think just laws are whatever men create for themselves and agree upon.
If you are truly concerned about the rights of homosexual couples in a committed relationship, what is wrong with defining a civil partnership legally and affording the appropriate privileges for it? Why entangle it with marriage which is based upon gender diversity and the biological fact that we come into this world as male and female and are designed to complement each other in the union of marriage?
OS said: ” It has to do with hormones and timing, not genetics. There is a difference. Red hair is genetic. Tendency to certain diseases is genetic. Sexual orientation is not genetic; it occurs during the development of a fetus. ”
Not true. Inconclusive evidence. The hormonal theory of sexuality (which you are referring to) is not factual. There has been plenty of research, stating there is more to it than this. Please see the following (I encourage everyone else too as well):
http://en.wikipedia.org/wiki/Prenatal_hormones_and_sexual_orientation
OS said: ‘They did not choose to be gay any more than I “chose” to be heterosexual. That is the luck of the draw.’
Not true also. The evidence is still inconclusive (meaning, there is not enough evidence to make this claim). Please read the following article:
http://www.sevencounties.org/poc/view_doc.php?type=doc&id=41179&cn=1310
As I stated, the jury is still waiting for more info……..
However, as I stated earlier, (and this is for David, as well), do not allow your personal beliefs to hinder someone’s dreams or goals in life. If the GLBT community wants to marry, adopt children, etc., then no human being has any right to say otherwise.
With that, I am going to bed……….before my wife puts me on the couch.
No, the jury is not still out. The verdict is in and everyone has gone home.
No one said anything about sexual orientation being genetic. It has to do with hormones and timing, not genetics. There is a difference. Red hair is genetic. Tendency to certain diseases is genetic. Sexual orientation is not genetic; it occurs during the development of a fetus.
None of that matters in the real world. What does matter is how people are treated. Being gay or lesbian is a fact of life for a substantial percentage of the population. They did not choose to be gay any more than I “chose” to be heterosexual. That is the luck of the draw. The real point here is whether people who love each other and want to share their lives and fortunes should be given equal protection under the law.
Anything else is a red herring.
OS,
OMG!! The almighty OS is sidestepping the issue. Let’s go back to square 1:
Fact: You are either born male or female.
Fact: You are not born heterosexual or homosexual (even the GLBT community consents to this; according to the latest research, their is no proof that sexual orientation is genetic).
If it (sexual orientation) is not genetic (or it is not proven as of April 29, 2013), then, so far, you can only follow the white rabbit down the hole that leads to environmental studies/conclusions (the line of thinking that I mentioned earlier). Or you can ignore both lines of thinking, and do what pleases you.
The jury is still waiting to here more evidence on sexual orientation from those who think it is genetic (or born heterosexual or homosexual).