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
OS:
how bad is the damage? Can it be repaired?
Pete, I had noticed the same thing about the capitalization of those words. That bothers me too.
Bron,
Correct. It is considered to be a learned behavior by behavioral psychologists, reinforced by neurotransmitter actions similar to other addictions. There is debate among mental health and law enforcement professionals about the exact cause, but the criteria for diagnosing pedophilia are well defined, as are the laws against it. Personally, I tend to lean toward the behavioral learning model as the cause.
The damage they cause to kids is mind boggling.
So if natural law as you write David dictates the terms of marriage and thus statutory definition, how would you legislate other natural laws such as gravity and the casimir effect.
Statutory laws are human constructs just the same as marriage is. Nature does not codify marriage into its operation, that too is a human construct. Animals do not have formal marriage schemes as humans do.
So to proscribe marriage based upon laws of nature is not logical, and it is in the laws of the United States that statutory laws are enacted by the legislative body subject to review by the supreme court for constitutionality based upon another human construct called called the US Constitution.
It is also important to recognize that your religious beliefs are just as irrelevant to the legality of marriage as would be the religious views of some other religion that has tenents you would not agree with. That is because statutory law defines marriage that mandates that the citizenry comply with those laws. A religious view of marriage is unenforceable if it is not in agreement with statutory law and a religious leader cannot legally enforce a marriage rule of the churce against someone say who is not a member of the church because the church does not have the authority to nullify a state sponsored marriage.
If you have religious beliefs against gay folks marrying, that is your choce and your right. But you have to recognize that your religious views are not supported by everyone in the world. Transpose yourself where you were in a situation where a religious leader took control of marriage and dictated that you and your wife could not be married because of some arbitrary reason. You would not like it either. That is why religion does not dictate who can and cannot marry in a secular country like the US. The law is the standard. Religious views are too arbitrary and inconsistent to apply to a society that may not share the same views.
Darren, you are not grasping the concept of Natural Law Theory. It is a non sequitur to ask how I would legislate natural laws like gravity and the casimir effect. Read William Blackstone’s law commentaries for better grasp of the idea.
The concept of Natural Law theory is embedded in the U.S. Declaration of Independence when it mentions “Laws of Nature and of Nature’s God.” It formed the basis for our own revolution and rebellion against the laws of England which we had deemed to depart too far from Natural Law to be recognized as having any authority over our lives anymore. We threw off that government because of the egregious laws that they established to rule us. The legal foundation for our right to do that comes from Natural Law Theory.
In a nutshell, Natural Law Theory involves the concept that just as scientists discover and define laws that govern the physical universe, there are similar laws that govern the civil affairs of men. The purpose of civil institutions is to define these laws and make them clear to the rest of us. Therefore, the laws of civil government recognize certain unalienable rights of men, and work to protect them, and they prescribe for men the responsibilities and duties that he has toward other members of society. When the civil institutions do well and define the laws accurately according to Natural Law, society prospers in the same way that science and technology prospers when they apply themselves honestly to defining the physical laws of nature. The problem comes when men who rise to authority in government tend to be corrupted by the money and power that goes with that position. They begin to enact laws which are merely inventions of their own mind, designed to enrich themselves and their friendns. These laws invariably become oppressive to the people, who eventually rise up against the tyranny and overthrow the government. The U.S. has enjoyed one of the longest periods of government without revolt and revolution, but I have deep concern that we may be approaching an end to this if we continue on a path where the legal profession not only no longer recognizes their obligation to define laws according to the Laws of Nature, but outright claims the power and authority to invent whatever laws they want, appealing to reason based upon flimsy unquestioned assumptions.
In regards to marriage, quite simply, marriage has always existed as long as man has been alive. What has varied is man’s attempt to define it and understand it. You say that animals do not have marriage schemes, but the truth is that animals simply lack the reasoning ability to define it. There is great diversity among animals, but many do have sexes which bond for life similar to humans (many birds, wolves, beavers, etc.). There are some animals that reproduce asexually, which begs the question of why man enters the world with a sex identity in the first place. The answer to this bears directly on the question of same-sex marriage. The diversity of animal life simply helps us to investigate and understand our own situation.
When you use the phrase, “to proscribe marriage based upon laws of nature…” such assumes that marriage is being proscribed. It is like the, “when did you stop beating your wife” kind of question. There is a premise in the statement that makes communication difficult. Even if same-sex marriage is codified, there will be some other group to claim that their right to marry is being proscribed. The polygamists are surely next in line. After that, you will likely have the NAMBLA asking for their right to lower the age of consent. The point is that it is not about what marriage is proscribed, but rather defining marriage accurately according to the laws of nature. Marriage is based in a biological fact that we are born male and female, and from this observation stems the biological knowledge that man and woman require each other to procreate. Now we might argue that it would be advantageous for men to impregnate as many women as possible and not ever marry, while women might do better by marrying and getting a man to share in the responsibility of raising the children. We can apply all manner of logic to the issue, but the point is that there are biological, psychological, and social reasons to define the civil rights, responsibilities and obligations associated with marriage.
Lastly, let me make it clear that I do not have religious views against same-sex marriage. This is only how the more bigoted members of this forum characterize me in order to be dismissive of my perspective. I am not a religious man except for the fact that I do accept the premise that there was a Creator. If that makes me religious, then it also makes men like Thomas Jefferson and Benjamin Franklin religious (but IMHO these men were least religious among their peers). My formal training is in the biological sciences. I spent 9 years studying at two different universities, but I never even had a religion class. My time was spent in science. I am self taught in a variety of fields, including computer science, religion and law. My oldest daughter became a lawyer, but I, unfortunately, never had a single law class. I am purely an amateur when it comes to legal stuff, but my daughter still calls me regularly and picks my brain about legal issues. She also credits me with inspiring her to become a lawyer. Her husband also is a lawyer and enjoys sparring with me from time to time on legal issues. So it is unfair for you to characterize my views about same-sex marriage as being religious or arbitrary. I have sound logical reasons based in biology and legal precedence. Just try to consider my arguments based upon their own logical merits. The key to understanding comes from ferreting out the premises and testing the acceptability of them.
OS:
from what I understand about pedophilia, it isnt a choice it is more like an addiction which must be satisfied at all costs.
Bron, I don’t know of any addiction (psychological, physical or both) that did not involve choices made by the person with the addiction. Do you?
Whether you consider addiction to smoking, stealing, pornography, sexual intercourse, alcohol, drugs, pedophilia, shopping, stealing, gluttony, religion, blogging, the internet, texting, gambling, or video games… you name it, previous choices were involved and led up to the addiction. This is why all the major religions, which primarily focus on voluntary choice to secure morality, have highlighted the importance of a disciplined mind, especially in the area of sexual attractions. Groups that attempt to help people with addictions, like AA, invariably also focus on choices that a person makes and the exercise of a disciplined mind.
The problem with gay marriage is that it completely strips the role of both Gender Diversity and Reproduction from the concept of marriage.
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i worry about people who capitalize words like gender diversity and reproduction.
Pete, the reason I capitalized the words Gender Diversity and Reproduction was because they are common terms often used in broad ways, but I was using them as a title for a specific contextual meaning that I discussed in more detail earlier in the thread. For example, in regards to reproduction, I quoted two legal cases that closely associated this ability to propagate the species with marriage, and thereby considered marriage a civil right, not because of “the right to choose” but because of the right to reproduce in a responsible way. It also is closely tied with the public interest in providing some regulation in regards to marriage because marriage affects all of society, despite the homosexual propaganda that it is a private individual choice that the State has no business defining as being between a man and a woman.
David,
You can believe whatever you want about natural law. People make and unmake laws. We are not talking about your personal belief system. We are talking about treating others as we would want to be treated. That sound familiar?
As for my belief system or religion. That is totally irrelevant. I have never disclosed to anyone on this blog whether I am religious or not. Furthermore, a cite from a religious text has nothing to do with the IRS, laws regarding inheritance, or hospital visitation rights.
Unless of course you wish to discuss Matthew 7:12, Forty Hadith of an-Nawawi 13, Sutrakritanga 1.11.33, Mencius VII.A.4, Mahabharata, Anusasana Parva 113.8, or Leviticus 19.18.
OS, you don’t have to specify your view on religion directly. Your bigotry against religion reveals itself in the simple fact that you do not recognize that the quote I offered was not just a religious text but from the Jewish law which was foundational for the legal system from which our legal system in the U.S. evolved. I was going to cite from a 2012 court case, but as I read what you wrote you said you did not want a recent citation, so I went all the way back past English law to one of the oldest citations that came to mind. Unfortunately, because that society had a theocracy in place, you seem to disrespect their contribution to law entirely. It is clear that you would only consider citations that would conform already to your preconceived bias and mindset, so there is really no basis of being able to reason with you. I think a more reasonable approach to truth is to patiently give a logical answer rather than be dismissive just because you label a concept in your mind as “religious” (whatever that means).
davidm2575:
My objections against religion are base on reason. Therefore, it’s not bigotry.
Reason #1: your god is imaginary.
Nal wrote: “My objections against religion are base on reason. Therefore, it’s not bigotry.”
LOL. I have heard many racists in my lifetime make the same argument. They go on and on about how from a logical perspective the black race is inferior. Even Charles Darwin applied reason to prove the inferiority of the black race at the same time he made his case for Natural Selection.
Bigotry describes an impatience and annoyance with someone who holds to a different opinion. It describes a partiality in a person’s thinking based upon preconceived notions, usually based upon a stereotype. For example, suppose you have met people who attend a church and you observe that they are poor and uneducated; they cannot converse with you on your intellectual level, so you stereotype in your mind that people who go to church and believe in God are uneducated and poor. You add to this that they have poor skills in the use of logic, and surmise from such that their God must be imaginary. Bigotry like this becomes a problem when you function from this stereotype. You become unable to hear anyone who believes in God or attends church or has any of the attributes of the stereotype for which you have developed an intolerance. The existence of reason in your thinking does not excuse bigotry.
OS, I am not playing fast and loose with definitions. I have been very consistent and have repeated myself many times. It is getting a bit tedious because I think you read what I write very superficially. You remind me of university students in class whereupon when I go through a long careful explanation of a biological system, some student will raise his or her hand and ask me to explain what I just explained and the whole class roars with laughter.
Your writing makes it clear that you believe the laws of men grant rights to their citizens. I do not believe that. I believe that all laws must conform to Natural Law to be valid. The purpose of legislators is to discover these Natural Laws in the same way a scientist discovers the laws of nature in regards to the physical world, such as the laws of gravity, the laws of motion, etc. If a scientist were merely to make up his own laws, and they did not conform to what we observe in nature, his laws will not last because as people try to use them to understand the world, they would not work. In the same way, civil laws that are invented by men and do not conform to the Laws of Nature and Nature’s Laws, these will lead us into tyranny and disharmony and ultimately history tells us revolution to overthrow such governments is the way that society sets itself aright on the correct path that leads to society harmony and bliss.
The best understanding of the importance of Gender Diversity in regads to marriage comes from understanding basic biology. It is a fact that with the few exceptions of hermaphrodites, we come into this world as male and female, and the differences between the sexes is substantial. The male cannot reproduce without the woman, neither can the woman reproduce without the male. But this is only the beginning of the differences. There are differences in strength, talent, even the mind in how it thinks. Physical differences are very visible in the brain.
You asked for a legal cite, so let me go back to one of the oldest. From a legal standpoint, the Torah purports to express the mind of the Creator making us male and female instead of unisex in that it says Therefore the man will leave his mother and father, and cleave to his wife, and the two will become one flesh. You will probably object because of your bigotry against anything religious, but there are many legal wranglings over this Jewish text which best conveys the concept that men and women are very different from each other and that our biological design is for the man and woman to come together in a unity that complements each other to make one unified whole which creates children and a family. There are many psychological and biological issues involved with this. Yes, we can divert from the obvious by talking about hermaphrodites, sperm banks, dysfunctional families, divorce and blended families, etc. Or we can first appreciate what is right before us and come to agreement about the existence of gender diversity and that therefore the union of male to female is substantially a different thing that the union of male to male or female to female.
davidm:
I have resisted the temptation to leap into this discussion on a number of occasions because the topic can’t be covered in snippets. But your arguments are defined by certain premises announced in your very first post, in which you stated the following:
1. “Our sexuality is defined by a number of choices over our lifetime regarding how we think and act about sex.” I disagree. Sexual identity is not a function of choice. Sexual behavior is.
2. “Sexual identity is related to sexual morality.” No. There are moral principles governing all behavior, sexual or otherwise. Some of them are legislated; some are not. But the fundamental moral principle is respect for the dignity of others, which requires that we treat other persons as ends in themselves. Sexual morality is only one aspect of moral behavior. It is, unfortunately, the central interest of far too many people. That is why we attempt to impeach one president for sexual misconduct and ignore the war crimes committed by another.
3. “Laws that seek to protect homosexuals are actually protecting sexual immorality and the idea that there should be no laws against sexual immorality.” This conclusion is not compelled by reason, but by your underlying belief that homosexuality is inherently immoral, which begs the question. Furthermore, the only people who ever argue that there should be no laws prohibiting certain forms of sexual activity are anarchists.
At bottom, you are of the view that homosexuality is evil. I suspect that the foundation of that belief is biblical. And the possibility that human sexuality is far more complicated than some religious leaders would have us believe is understandably threatening. Since you recognize the obvious, that evil must be a product of will in order to impose responsibility, you are stuck with the notion that homosexuality is a “lifestyle choice,” a phrase that combined with the equally ubiquitous “homosexual agenda,” suggests an invasion of evidoers bent on proselytizing others to increase their numbers, and concomitantly, their political strength.
Given this viewpoint, it is hardly surprising that you conclude that gay marriage will result in “the destruction and loss of an important institution used for the continuation of civilized society.” However, unsound premises produce unsound conclusions. The recognition of gay marriage will not reduce the number of heterosexual marriages. It will not reduce the number of children. It will not lead to recognition of marriages between adults and animals or adults and toddlers. If anything, I believe it will have the effect of emphasizing the importance of committed relationships for social cohesion.
I also believe that your understanding of marriage as a legal entity is flawed, but I’ll have to save that for another post.
Mike, I appreciate the thoughtful reply. A few quick comments as I have an appointment in 10 minutes.
1. You wrote: “Our sexuality is defined by a number of choices over our lifetime regarding how we think and act about sex.” I disagree. Sexual identity is not a function of choice. Sexual behavior is.”
Think about how a pedophile comes to awareness of himself. Does he wake up one day and say to himself, “I am going to become a pedophile.” No. What he does is start making choices that lead him down that path. He finds himself attracted to children. Well, lots of people do. But he chooses to entertain sexual notions about them. He chooses to start to look at child pornography. He decides to start touching a child. You get the picture. A series of choices leads him to discover his sexual identity. Everybody’s sexual identity, yours, mine, everyone, is developed through a number of choices over our lifetime concerning how we think and act about sex.
2. Not sure what you are trying to say here. I pretty much agree with what you said and do not see how it contradicts what I had said. Would you not agree that if a person’s sexual identity is that of a pedophile that this is related to sexual morality?
3. I don’t think you understand my underlying reasoning, but to explain further, we would first have to define sexual immorality.
You wrote: “At bottom, you are of the view that homosexuality is evil. I suspect that the foundation of that belief is biblical.”
Not really. I admit that when I read in the Torah that homosexuality is a capital offense, it peaks my curiosity to look at it more closely in the same way that when the Torah makes breaking the Sabbath a capital crime or adultery a capital crime, yeah, I want to look at it closely to understand why it might take that position. Nevertheless, most of what I believe comes from dialogue and study of the issues. I admit that I have more recently been developing a stronger aversion toward homosexuality because I see what they are doing to marriage now and the disharmony in the legal system that is arising from it. At first I was just concerned about their behavior leading them toward higher rates of depression and suicide, but now it seems to be something that is affecting more than just the individuals engaging in it. My children and my grandchildren will be affected by the way they change the legal system in this country. My biggest concern is the rift it will create between the religious and the secular, and it seems to me that revolution looms on the horizon closer and closer even though we want to deny it. I’m expecting more Boston Bombers and 9/11 type activities as people become dissatisfied with the way government and the legal system is working.
Bron, I believe in God, but I am not religious and so I do not attend any church, synagogue or mosque. I just study the arguments and evidence and accept what makes sense. I never said that I want to PREVENT infertile heterosexual couples from marrying. I said that I would advise against it in many cases, such as the example of two 90 year olds getting married. Even the apostle Paul in the Bible advised against marriage in more circumstances than just infertility. You should not have such a knee jerk reaction to the concept. Marriage is a big deal, but unfortunately, in modern times because of the so-called “sexual revolution,” it has lost its meaning on the majority of society.
OS, I was referring to Natural Law and reference thereto by Maynard v. Hill and other cases that I referenced earlier in the thread. The concept is that marriage is not a legal contract, but a relationship like father to son. The father is always the father despite what some law of man might say. Unfortunately, our modern governments have moved toward looseness and moved away from Natural Law and has made divorce easier. There was not a single divorce in the colony of New York for over a hundred years before we became a nation. That should give some idea of how much times have changed in regards to our understanding and appreciation of marriage. When Jesus was drilled about marriage, he made the statement that what God had joined together, let not man separate. This led to civil laws in western societies that rightly did away with polygamy and divorce except in very stringent circumstances. Now we are moving the other way, toward higher divorce rates, same-sex marriage, next will be polygamy again, some are already marrying their pets, and so the nonsense continues.
What Bron said.
AY,
I knew those things. I was responding to Davidm’s allegation that marriage cannot be dissolved by agreement as can other contracts. My point was there are legal mechanisms in place that make it possible to dissolve a marriage by agreement of one kind or another. In some instances it is easier to get a divorce than to break a rent lease.
With the ban on gay marriage in three dozen states, gay people who get married in one of the nine states where it is legal, cannot get a divorce if they move to a state where it is not legal. They become invisible. Talk about second class citizens! I will have to follow up on this with some research, but I read somewhere the states which have banned gay marriage will not enforce spousal or child support orders from other states.
david:
“Therefore, infertile couples might be allowed marriage because the primary purpose of marriage is satisfied. However, I would advise against it.”
So now you want to prevent heterosexual marriage if one or both are infertile?
To what church do you belong? I want to make sure I avoid it like the Biblical plagues.
Either that or you are just screwing around with this and us.
David:
gay couples can use a surrogate or a sperm bank and reproduce. Each can either father or bear a child. The reproduction avenue is pretty weak to hang your hat on.
Single people have a right to have children if they can afford the costs. Honestly it sounds like you are against very many ways of having children. What about implantation of embryos fertilized in vitro rather than in utero?
I consider myself a conservative and do have some problem with calling a gay union marriage but more from a words mean something standpoint rather than any fundamental opposition to the concept. I dont call a dog a wiggly for the same reason.
But a legal union blessed by a minister who wishes to do so? No problem at all. Which a marriage is in all but name so WTF why not just call it marriage and be done with it.
By the way I dont think people should be sued because they dont serve a patron, any patron for any reason. I dont think its good business but I dont think you should be made to do so. I dont have to shop at your establishment either. Its all voluntary or should be.
It seems like your basic aversion to gay marriage is because you are religious and for no other reason. Gays make up between 1 and 10% of our country and I think it is probably somewhere in the middle. They arent going to cause societal destruction if you let them get married.
OS,
I hate to disagree with you but Annulments are based upon some fault or incapacity of a party….. You can dissolve the marriage as thought its never happened…
Now with respect to a No Fault divorce…. Legally speaking there has to be a breakdown of the relationship that all onjects of matrimony have been destroyed….gence caused the marriage to end, this is technically fault as well….
What No Fault divorces has done, it’s stopped fraud from be committed upon the court and one does not need permission from the other spouse to be divorced….
“A contract might bring them together initially, but once they enter into marriage, it becomes an institution that unlike contracts cannot be dissolved just by agreement between the two spouses.”
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Really? Ever hear of no-fault divorce or annulment?
Davidm sez, ” The primary purpose of marriage is the bringing together of two individuals of the opposite sex. In other words, Gender Diversity is the primary purpose of marriage.”
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Could you give me a legal cite on that? And not one found in the several homophobic laws passed in recent years, because those laws were passed with the express purpose of denying citizens various civil rights. Perhaps something from English common law, or a law passed before 1990.
You are playing fast and loose with your definitions. Legal marriage is nothing more than a legal construct granting and enabling certain rights and responsibilities under various other codes, including, but not limited to, taxes, insurance, health care and inheritance.
davidm2575:
With a lot of heterosexual marriages too. But, your argument is for one man and one woman, not for one man and one woman capable of reproduction. If you’re not going to apply reproductive ability to heterosexual marriages, how can you logically apply to homosexual marriages?
Darren and Nal, I addressed this earlier in the thread. The primary purpose of marriage is the bringing together of two individuals of the opposite sex. In other words, Gender Diversity is the primary purpose of marriage. Reproduction is a secondary purpose of marriage. These are the two main pillars. Therefore, infertile couples might be allowed marriage because the primary purpose of marriage is satisfied. However, I would advise against it. In other words, it can still be legal, but probably in most cases it would not be a good idea. The problem with gay marriage is that it completely strips the role of both Gender Diversity and Reproduction from the concept of marriage. It relegates marriage to being only a contract between two people to cohabit together. Marriage is not just a legal contract. A contract might bring them together initially, but once they enter into marriage, it becomes an institution that unlike contracts cannot be dissolved just by agreement between the two spouses.
David
So if marriage is only legitimate for reproduction how do you justify a 90 year old man marrying a 90 year old woman? No reproduction happening here.