There is an interesting case out of Idaho that could be a critical showdown between anti-discrimination laws and freedom of exercise of religion. At the heart of the controversy are two Christian ministers, Donald and Evelyn Knapp, who own a Coeur d’Alene wedding chapel. They have been told that they must either perform same-sex weddings or face a $1000 fine. It raises a legitimate claim of the encroachment of state laws into areas of faith — a question that has been previously raised in less direct ways involving bakeries, photographers and other businesses that has refused for religious reasons to service same-sex marriages. We have previously discussed the difficulty in drawing lines under the First Amendment. If this business is protected, then why is not a bakery of religious individuals? Conversely, if this business is not protected, how about all of the religions that accept payments for religious services?
The case centers on the Hitching Post Wedding Chapel in Coeur d’Alene, which is registered with the state as a “religious corporation” limited to performing “one-man-one-woman marriages as defined by the Holy Bible.” However, unlike most churches, this is registered as a for-profit business. It is not unique in such a status, but that distinction could prove determinative in the case.
The city has an ordinance passed last year that prohibits discrimination based on sexual orientation in matters of housing, employment and public accommodation. As a for-profit business, the ordinance does not treat the Hitching Post Wedding Chapel any different from a car wash.
Of course, it is different in the character of its work. The controversy however has played out in a variety of different contexts. This is an issue that we previously discussed when Harvard banned men from workout areas to satisfy the demands of Muslim women as well as other accommodations at other universities. Conversely, cities have banned the boy scouts because they exclude gay scout leaders and were thus discriminatory organizations. We have also seen private businesses who have been forced not to discriminate against homosexuals such a bakeries, florists, and photographers. I have previously written on the growing collision of free exercise of religion and anti-discrimination laws. Where does one draw the line where a florist cannot bar a homosexual but a grocery can bar males? The inherent conflicts in these cases leaves us without a single cognizable rule.
That is why this case could be so important. While I have long supported gay rights and same-sex marriage, I am sympathetic with the Knapps. I have great concern over the state telling a religious business to violate the core of its religious values. One possible distinction would be to require a non-for-profit status, but that distinction does not answer all of these questions. Churches and synagogues often receive payment for marriages even though they are non-for-profit. Moreover, most not-for-profit corporations are non-religious. The distinction avoids the key question: do people (and corporations) have a right to follow core religious principles. The recent ruling in Hobby Lobby would seem to support such a claim.
The case in Idaho is the perfect microcosm of the various national issues swirling around same-sex marriage. Same-sex marriage has long been illegal in Idaho so this issue had not arisen for the couple. However, last week the U.S. Court of Appeals for the Ninth Circuit issued an order on May 13 allowing same-sex marriages to commence in Idaho on Oct. 15. It was just two days later that the couple received a call asking for a same-sex wedding ceremony. When they declined, they were contacted by the city.
I believe that the couple has a strong argument under the First Amendment as well as Idaho’s Religious Freedom Restoration Act. Regardless of one’s view of the merits, however, this could be a defining moment for constitutional law.
Source: Spokesman
Nick Spinelli – “Straight men find skinny women unattractive. We like women w/ curves.”
Amen brother!
David, I think to your point about the destruction of marriage have you noticed how current “weddings” barely even have a ceremony? I can’t think of the last time I’ve been to a wedding where the “ceremony” was in a church or chapel. It has become more of a reason to throw an overly expensive party and to get money from people you know. It’s to the point with me that I will just send people a check since in the end, that is all it is about.
Straight men find skinny women unattractive. We like women w/ curves.
SWM, Homosexuality is by definition abnormal. When the taboo was lifted and gay people came out of the closet they CELEBRATED their uniqueness. They wanted nothing to do w/ the conformity of straight society, including marriage. They wanted civil unions so they can adopt, have visitation, etc. something I support as do the vast majority of people. But, something changed. I had a great discussion on another blog about 3-4 years ago w/ several gay people. They did not have a chip on their shoulder. I asked why the focus changed from civil unions to marriage and they did not know and said they indeed wondered about that themselves. One of the women was a strong advocate for gay marriage, the other 2[men] were ambivalent. They still liked being outliers but w/ the protection of civil unions. I know part of this drive is the lawyerization of our culture. Gay marriage means gay divorce and billions in billable hours.
Lets look @ damage the gay culture does to women. The gay male culture HATES fat people. The gay male culture DOMINATES the fashion industry that insists women have to be size 2. Ironically, the lesbian culture has problems w/ obesity. The Gay Mafia in the fashion industry are contributing factors in the eating disorders rampant in heterosexual girls. As you may or may not know, this obsession w/ thinness has created a huge crystal meth problem in the gay male community. David Sedaris[read very book] speaks w/ his incredible humor and also sadness about how he allowed thinness and crystal meth damn near kill him.
ANYONE who knows me knows I am not a homophobe. I’ve spoken often how I love John Waters and all his flicks. But, don’t try and tell me there are not some SIGNIFICANT problems w/ trying to mainstream the gay culture. Because there is, and many gay folks are the first to admit it. And, they do so w/ trepidation because the Gay Mafia is quite powerful.
Please, discuss my points. Please don’t spout talking points because I just wrote a thoughtful and heartfelt comment.
davidm:
Although I am hardly an expert on these topics, I believe that urolagnia and coprophilia (I assume that’s what you mean by “fudge sports”; I have never heard that term) are properly regarded as sexual fetishes, and they are certainly engaged in by heterosexuals, as are rimming and anal intercourse. I cannot speak to the hygiene practices of fetishists, but I would guess that most people know how to wash themselves.
Mike Appleton wrote: “I believe that urolagnia and coprophilia … are certainly engaged in by heterosexuals, as are rimming and anal intercourse.”
100% of gay men engage in fellatio, 93% engage in rectal sex, 92% are active in rimming, and 29% engage in golden showers. Without taking time to look up statistics for heterosexuals, I don’t think they are even close to this frequency. Promiscuity in gay men far surpasses heterosexual men. Pointing out the existence of deviants on both sides of the aisle does not make them equal.
david – on a personal note, two of my brothers got HIV from the gay bathhouses in San Francisco during the hedonist heyday before anybody really knew about AIDS. Both died from AIDS complications, very painfully. From hearing my brothers talk about it, the bathhouses were a sexual free-for-all. I had two professors who went to SF during the same period to enjoy the bathhouse and both picked up HIV and died from AIDS complications.
Mike Appleton wrote: “I cannot speak to the hygiene practices of fetishists, but I would guess that most people know how to wash themselves.”
Once they ingest feces, or feces finds its way into their urethra, washing will not help prevent infection.
“The theory behind gay marriage, in short, was the theory behind the entire secular left: society and the state are the all-powerful forces on which the life of the individual depends, and the most important political task—indeed, the most important task in life—is getting this irresistible power on your side.”
http://thefederalist.com/2014/10/20/gay-marriage-no-one-expects-the-secular-inquisition/?utm_source=The+Federalist+List&utm_campaign=ac0ed39e3b-RSS_DAILY_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_cfcb868ceb-ac0ed39e3b-79248369
davidm:
As usual, this thread diverged almost immediately from the legal issue presented by the story. The issue involves the intersection of religious accommodation and public accommodation. Little has been said on that topic. Instead, the discussion has centered on the potential destruction of the nation brought about by the recognition of same-sex marriage.
My difficulties with your position are several. First, they confuse religious notions of marriage (i.e., the sacramental relationship) with the legal institution of marriage. Second, although you have identified yourself as an unaffiliated theist, your arguments fall squarely within the theological ambit of doctrinaire fundamentalism. There is nothing wrong with that, but your points need to be understood within that context. Third, you attempt to draw on traditional natural law arguments without acknowledging that natural law theory is dynamic, as one would expect, and therefore subject to revision and fuller understanding as our knowledge and understanding of biology and sexuality have changed.
I will have more to say another time on what I view to be the hitches in the Hitching Post case, but on the issue of marriage and sex, I offer the following:
1. Under the law, all marriages are revocable domestic partnerships. There have been legislative efforts in recent years to incorporate religious doctrine into the statutory scheme regulating marriage (such as proposals for what is termed “covenant marriage”), but those efforts only illustrate the recognition that the states’ treatment of marriage is predicated upon contract law. And there is not a single jurisdiction in the United States that conditions issuance of a marriage license upon either a commitment to, nor biological capacity for, procreation, I have posted on this issue before. That doesn’t mean anything, but I just don’t like to repeat myself. http://jonathanturley.org/2012/05/27/marital-dischord/
2. Same-sex marriage will be subject to the same regulatory scheme that presently governs traditional domestic partnerships, and experience will dictate the need for any legislative tweaking.
3. The assertion that homosexuality is nothing more than an expression of uncontrolled hedonism is cruelly irrational, presumptuous and offensively ignorant. A person who is not familiar with at least one same-sex couple who has enjoyed a long-term, committed, loving relationship doesn’t get out much.
4. Although it may be considered sinful by many religious sects, fornication is indeed legally protected activity. Of course, it may also result in legal consequences, such as divorce or paternity proceedings.
5. It is currently fashionable to blame virtually all societal problems on feminism. I confess that I do not fully understand this phenomenon, but I suspect that its genesis is a combination of fear and resistance to women’s insistence on equality. At the base of it all, of course, is power. For my part, I believe that if any man’s self-worth is compromised or threatened by acknowledging the full legal equality and moral autonomy of another, whether that other is a woman, a homosexual, an atheist, a Muslim or a member of a racial or ethnic minority, that man has personal issues that need to be professionally addressed.
At the end of the day, the controversy over same-sex marriage, whatever pseudo-intellectual swill may be employed in the debate, is reducible to a religious argument over sex.
Mike Appleton wrote: “My difficulties with your position are several. First, they confuse religious notions of marriage (i.e., the sacramental relationship) with the legal institution of marriage.”
The religious notion of marriage is exactly the point of the Knapps’ objection to being asked to officiate a gay marriage. It is a fundamental doctrine of secularists to try to separate religious and legal issues as if they have nothing to do with each other. The truth is that the law overseas religious people, and government is run by religious people, so it is impossible for the law to pretend to be neutral toward theistic paradigms.
The clearest example in modern times is how most laws keep trying to exempt religious organizations. Such violates the principle of equality under the law. Why should the law apply to the Knapps if they are earning a living with their wedding chapel, but not apply if they become a church and do exactly the same thing? That makes no legal sense.
I believe in equality under the law for men and women and homosexuals and bisexuals and transgendered people. I do not believe that such people are equal in abilities and civil function.
Mike Appleton wrote: “Second, although you have identified yourself as an unaffiliated theist, your arguments fall squarely within the theological ambit of doctrinaire fundamentalism.”
Great, now I am being marginalized as a so-called fundamentalist. Acknowledge that I am not affiliated with any religious group, but call me a fundamentalist anyway. Once people understand this, then it makes perfect sense for everyone to just ignore my comments.
Mike Appleton wrote: “Third, you attempt to draw on traditional natural law arguments without acknowledging that natural law theory is dynamic, as one would expect, and therefore subject to revision and fuller understanding as our knowledge and understanding of biology and sexuality have changed.”
A fair point, which I do acknowledge, but modern science has not yet made us all mono-gendered, nor has it changed the way we reproduce. Our understanding of biology has actually reinforced some people’s perceptions that the unborn are fully deserving of our protection from conception when their genetic makeup is fully in place. It also reinforces our understanding of just how dangerous MSM sexual behavior is for those who engage in it.
Mike Appleton wrote: “1. Under the law, all marriages are revocable domestic partnerships.”
Where does the law specifically say that marriage is a revocable domestic partnership?
We discussed this back in February:
http://jonathanturley.org/2014/02/15/loving-for-all-in-virginia-getting-it-right-the-second-time-around/
In the United States, most people do not sign any contract when they marry. Their union is a matter of law. Marriage is an institution of law, and it has traditionally been considered irrevocable. To dissolve the bonds of marriage, one must go to law to get it done. When I dissolve a contract in business, I just tell the other party we are done and walk away from the relationship. There is no need for divorce proceedings, and no demands by the courts to pay alimony or ongoing support of any kind.
The very idea of financial support in a divorce is because the relationship is considered by law to be permanent and irrevocable. The idea of marriage being a revocable domestic partnership is only of recent origin, and I truly need you to school me in exactly which states have codified this into law and where. I am ignorant that this has taken place.
At one time, the concept of marriage being irrevocable was so strong in civil law, that many states had laws about common law marriage. Today, there are surely less than 20 States that still have common law marriage because the law has lost its way in this subject of marriage. Now we have no-fault divorce and the teaching from lawyers that marriage is nothing more than a revocable contract.
Consider the dictum from Maynard v. Hill that I had shared before, where marriage was considered to be much more than a contract:
“Marriage is something more than a mere contract … a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation. … 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. … The only inconsistency suggested is that it impairs the obligation of the contract of marriage. Assuming that the prohibition of the federal Constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the supreme court of the territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition. … They are of law, not of contract. It was a 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. … “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 basis of human progress.”
That is where we have come from. Now I am being told by you that marriage is only a revocable domestic partnership… basically, a revocable contract. If that were true, I would be all for gay marriage. So go ahead. Convince me that this is what the law says.
Mike Appleton wrote: “… there is not a single jurisdiction in the United States that conditions issuance of a marriage license upon either a commitment to, nor biological capacity for, procreation…”
Fair enough point, but the common law is replete with the connection between marriage and procreation. Very few conditions are placed by the State upon marriage, because the primary purpose of the State has been to acknowledge marriage and legally enforce the obligations and duties that arise out of it.
An article by John C Eastman entitled, “The Constitutionality of Traditional Marriage” reviews the law on the common law connection between marriage and procreation much better than time would allow me to do right now. Please consider it.
http://www.heritage.org/research/reports/2013/01/the-constitutionality-of-traditional-marriage#_ftn38
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This purpose has been recognized throughout our nation’s history. In California, the situs of the Hollingsworth case, the procreative purpose of marriage has been recognized since the very beginning of the state’s existence as a state. In 1859, the California Supreme Court held that “[t]he first purpose of matrimony, by the laws of nature and society, is procreation.”[38] A century later, the same court recognized that “the institution of marriage” serves “the public interest” because it “channels biological drives that might otherwise become socially destructive” and “ensures the care and education of children in a stable environment.”[39] A half-century after that, on the eve of the Proposition 8 political fight, the California Court of Appeal recognized that “the sexual, procreative, [and] child-rearing aspects of marriage” go “to the very essence of the marriage relation.”[40]
These cases are not anomalies; rather, they carry forward a long and rich historical and philosophical tradition. Henri de Bracton wrote in his 13th-century treatise, for example, that from the jus gentium, or “law of nations,” comes “the union of man and woman, entered into by the mutual consent of both, which is called marriage” and also “the procreation and rearing of children.”[41] William Blackstone, the great expositor of the law, described the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”[42] He then described the relationship of “parent and child” as being “consequential to that of marriage, being its principal end and design.” And John Locke, whose influence on the American constitutional order may be unsurpassed, described the purpose of marriage, “the end of the conjunction of the species,” as “being not barely procreation, but the continuation of the species.”[43]
This long-standing view was confirmed by the sociological and anthropological evidence introduced into the trial record. The work of the late Claude Lévi-Strauss, the “father of modern anthropology”[44] and former dean of the Académie Française, forms part of the trial record, for example, and includes this observation: “[T]he family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.”[45] Marriage is thus “a social institution with a biological foundation,” he wrote in another work.[46] Historian G. Robina Quale’s comprehensive sociological survey of the development of marriage from prehistoric times to the present, also part of the trial record, reveals that “Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring, can be found in all societies.”[47]
Given the nearly universal view, across different societies and different times, that a principal, if not the principal, purpose of marriage is the channeling of the unique procreative abilities of opposite-sex relationships into a societally beneficial institution, it strains credulity to contend that same-sex and opposite-sex couples are similarly situated with respect to that fundamental purpose.
That is undoubtedly why the plaintiffs’ own expert admitted at the Hollingsworth trial that redefining marriage to include same-sex couples would profoundly alter the institution of marriage.[48] That is also why Yale Law Professor William Eskridge, a leading gay rights activist, has noted that “enlarging the concept to embrace same-sex couples would necessarily transform [the institution of marriage] into something new.”[49] In short, “[s]ame-sex marriage is a breathtakingly subversive idea.”[50] If it ever “becomes legal, [the] venerable institution [of marriage] will ever after stand for sexual choice, for cutting the link between sex and diapers.”[51]
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david – back in the olden days, marriage legalized sexual intercourse between the couple. In Arizona, as in many other states it was considered fornication, which was a crime. Living in sin, as it was known, was termed notorious cohabitation, also a crime.
Mike Appleton wrote: “3. The assertion that homosexuality is nothing more than an expression of uncontrolled hedonism is cruelly irrational, presumptuous and offensively ignorant. A person who is not familiar with at least one same-sex couple who has enjoyed a long-term, committed, loving relationship doesn’t get out much.”
I never said that two people of the same sex cannot enjoy a long-term committed and loving relationship. Many have formed such relationships without any sexual interaction whatsoever. And many have formed such relationships with sexual interaction. My comments were about the primary purpose of sexual relations in homosexuality, specifically, gay men, and also to point out the differences between a same sex revocable domestic partnership and traditional marriage between members of the opposite sex. I also point out how lumping same sex partnerships into the category of marriage will destroy the concept of marriage and make it basically into the more broad meaning of a revocable domestic partnership. Such will weaken families and thereby weaken our economy and our society as a whole.
Mike Appleton wrote: “5. It is currently fashionable to blame virtually all societal problems on feminism.”
I did not blame all societal problems on feminism. I connected feminism to the message of gender equality. I blame feminism for causing women to devalue their greatest gift, their femininity, and to make women want to be more like men. I blame feminism for making women shun motherhood and nurturing / guiding their children to instead seek to hold careers and compete with men. I blame them for not celebrating gender diversity, and twisting the concept of equality into something that Thomas Jefferson never meant when he drafted the Declaration of Independence. I blame feminism for emasculating men and making them deadbeat loafers, something less desirable and hurtful to the female sex. Feminism clearly set the stage for the acceptance of the message of homosexual advocates and gay marriage. Without erasing the concept of gender diversity and the genius that represents for unity, homosexual advocates would never have had a chance of changing the institution of marriage. They would never have had a chance to change public bathrooms into unisex bathrooms. Oh, wait, that is still on the agenda… they are not yet finished securing that goal yet.
Mike Appleton wrote: “… the controversy over same-sex marriage … [ad hominem removed] … is reducible to a religious argument over sex.”
I’m sure that makes you sleep better at night, thinking about those damned religious people, ignorant of the law and just stirring up trouble. But the truth is that I have quoted primarily civil law. My arguments are legal, based in natural law, and not religious regardless of how many times you make the accusation so as to marginalize me and be dismissive.
If you were talking to a Muslim about this subject, his arguments would be religiously based, arguing for polygamous marriage, and arguing for marriage where the man has a revocable contract but the woman has an irrevocable contract in marriage. In their system, men divorce at any time for any reason, but women cannot initiate divorce.
The way around the issue is to separate legal marriages from religious ceremonies. If you want to perform legal marriages you have to abide by the laws of the state which includes performing same sex marriages. Performing a religious marriage which would not be a legal marriage would have no restrictions. For someone to perform a legal marriage they would have to be licensed by the state and abide by the rules and laws set down by the state. The clergy could still perform religious ceremonies, but they would not be a legal marriage unless they were licensed by the state.
Jim22: I think “context” and locality is what matters here. If a couple were living in New York City, a consumer can pick and choose among an unlimited supply of businesses. Most consumers don’t want to spend money or time with businesses that don’t like them and there would be no need for intervention by the courts in large cities.
A small locality with few businesses that cater to weddings could be exactly what the “Civil Rights Act” was designed for – essentially to prevent an unconstitutional tax to penalize citizens not breaking any laws. For example, a couple may be required to travel hundreds of miles from home just to be married.
The lawsuits you mention seem to meet the Civil Rights Act letter & spirit. If the couple were interracial would you also agree with that?
I don’t know if someone said homosexuality is a race. I doubt folks think that. Heterosexuals are not a “race” I am heterosexual but I never made a conscious choice, “Hey think I like men. I could like women but nah, think men are more my choice, as though I was picking out a caramel vs a nougat. Homosexuality is not a “race” anymore ten are blue eyed people a race.
davidm2575, Well put. For me, there is a natural and religious reason that homosexuality is wrong. Also, if as some here want to believe, that it is not a choice, but a race, then the only way that this race can survive biologically is to force their race on others through our schools and laws. They need to cultivate our offspring.
By the way, that audio is so creepy on so many levels.
just as an example of you never know who is reading or what their background is – although my parents were not hillbillies they were, in fact, first cousins, (re nick referring to “sex w/ their cousins” (oh and I loved mayo sandwiches when I was a kid)
Nick those who are obese or morbidly so sadly more often then not become that way not due to conditions out of their control, like gender, race, sexual orientation, but through behaviors. Absent being protected under the ADA, which they may be, I don’t know but would think might be at least when it is the result of a medical disorder, there is no analogy.
So Marsha Gessen speaks for the entire homosexual community? I sincerely doubt it.
I’ll give you my anecdote(s). I know more then one homosexual who was promiscuous, because why bother to have a longterm relationship that society refused to recognize. Now that it does, or most who do not long for the backward days of some of the hatred I have read here, these folks are in longterm relationships and engaged and looking forward to being married.
As for David, you have espoused your positions repeatedly about marriage being for procreation so no point going over that old ground with you (i.e. your position bars those who are infertile, those no longer of child bearing age, those for whom pregnancy would be dangerous, etc from getting married if we followed your almost Islamic philosophy of barefoot and pregnant and in the home and not to be seen in the workplace, maybe David not in the schools too or driving because this might impair their ability to have children, education making them aware of the options available, driving potentially involving the in an accident that might impair their fertility or ability to have children.
And many also think Camilla Paglia is not the spokesperson for women.
Annie, They left before you arrived. Lotta katz is really missed.
SWM,
I love how some exclaim they have nothing against homosexuals then go on to bash them all over again, just like they did the day before. Perhaps the reason more gays and blacks don’t comment is because the bigotry is so rank.
Nick, Well, Being gay has been “normalized”, your words, in many parts of the country. Gay people are getting married, buying homes, and raising kids just like their neighbors. I think being gay and having to hide it is where the dysfunction lies. Looks like another day of gay bashing has begun.
Feminist and lesbian “Camille Paglia.
As feminist and lesbian[married w/ child] says often, the acceptance of homosexuality in the Roman and Greek Empires was a significant factor in their decline. I’m a libertarian, I could care less who or what you want to f@ck, as long as it’s not kids. That said, to glorify and try and “normalize” homosexuality has been shown to be corrosive in formerly great cultures. “Those who don’t understand history are doomed to repeat it.”
It used to be called shame sex marriage or “shotgun weddings.”
The management and control of seminal fluid is big with prudes.