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
Sorry, Paul, but I don’t have time to look it up and I don’t keep canon law volumes at my desk. But it you google it, I’m sure you will find that I am correct.
Mike – is that what you tell the judges you are before? Really, when you make a claim it is your job to back it up. If you can google it, then it would be easier for you than me, since you know exactly what you are looking for.
Paul, for what its worth, Mike A is correct in his analysis. Just remember, though, that he is talking about canon law, not civil law.
david – I am well aware of canon law. I was taught by Jesuits. Still want a cite. He could be absolutely correct. But remember, annulment by the Catholic Church is what made Elizabeth I illegitimate.
davidm:
Your explanation of mutual revocation of a contract is incomplete. The parties to a marriage who agree to dissolve it have to file documents in court in order to make certain that the dissolution is properly recorded in the public records. However, it is not an adversarial proceeding. Likewise, if I buy real property from you and we mutually agree to rescind the transaction down the road, it will still be necessary to record a deed to reflect the transfer of ownership in the public records. A dissolution proceeding essentially serves the same purpose.
Mike Appleton wrote: “if I buy real property from you and we mutually agree to rescind the transaction down the road, it will still be necessary to record a deed to reflect the transfer of ownership in the public records. A dissolution proceeding essentially serves the same purpose.”
Really? You think getting a divorce is as easy as filing a deed? I’ve never gotten a divorce, but the people I know who have do not represent it that way at all. I have filed a deed, and it is as easy as mailing a letter.
Why would anyone want to be married by people who don’t want to marry them? But we knew this would happen. Being forced to do something you are against (for me it would be donating to the Democrats) is only going to bring anger. Gays are pushing society to the limit. TV shows are chock full of them. We have a remote.
Paul C. Schulte:
Canon law recognizes the concept of putative marriage, the belief by the spouses that their marriage is valid even though there may be one or more legal impediments. Legitimacy attaches at the time of birth and is not retroactively affected by a subsequent annulment. In other words, it is not equivalent to being born out of wedlock.
Mike – cite it, please.
Mike – would you like to cite the canon law to that effect. Children born out of wedlock are illegitimate. An annulment says the marriage never took place. Therefore any children were born out of wedlock.
Paul Schulte wrote: “Mike – would you like to cite the canon law to that effect. Children born out of wedlock are illegitimate. An annulment says the marriage never took place. Therefore any children were born out of wedlock.”
Paul, I think Mike is referring to the canon of the Roman Catholic Church. They annul marriages if they are not performed by the Roman Catholic Church. So if a couple is married in a Protestant church and have several children and then divorce under civil law, the church law can grant them an annulment so they can remarry within the Roman Catholic Church. This is a theological move for the church to sidestep the teachings of Jesus that do not allow for divorce except if there is adultery. I know of one couple who both had children in other marriages, then both committed adultery together, then they divorce their spouses under civil law, go to the Roman Catholic Church, get annulments for their previous marriages, and then marry within the Roman Catholic Church. Messed up if you ask me. Really messed up. I want no part of that religion.
I don’t know the workings of Catholic marriages but my wife is Catholic and I am a Methodist: there did not seem to be any objection to our marriage by either church.
Darren, did you get married in the Catholic church?
The issue usually surfaces when divorced people attempt to marry within the Catholic Church.
David, Dust Bunny Queen,
We were married in a United Methodist Church, the same church as my parents. Just prior to this we attended a Catholic retreat called Catholic Engaged Encounter which is open to all denominations. My wife made no mention of this being a pre-requisite to marriage in her religion.
I understand the “illegitimate” terminology but I reject it. Children are not illegitimate, although the behavior of their parents might be
The legitimacy of children was very important when land and wealth, especially among the “Titled” or bourgeoisie classes. The line of succession was extremely important. After all you want the Prince who will be King to actually be the son of the King. Or at least that is how people felt.
It isn’t such a big deal in the terms of land or property anymore. People aren’t so concerned if a child is born in wedlock or outside of wedlock. But, you can ask men, and I would hazard a guess that 90% of them would prefer that their child be actually THEIR biological child and not that of Ferd Berfel down the street.
DBQ – you will remember that Queen Elizabeth I was illegitimate for some time after the annulment of the marriage of her mother.
Paul Schulte:
Under canon law, the granting of an annulment has absolutely no effect on the legitimacy of children born of the marriage. Whatever you have heard to the contrary is absolutely false.
Paul C. Schulte
That wasn’t common law, that was statutory law.
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The common law came before statutory law, seeing as how the Constitution adopted the English common law.
Why do you think so many of our early supreme court cases site the Queens Bench and The King’s Bench cases?
Dredd – would like to cite the part of the Constitution that adopts the English Common Law?
maxcat is a woman. But, she signed off on another thread saying she’s fed up. She is a good commenter and will be missed.
Paul, I understand the “illegitimate” terminology but I reject it. Children are not illegitimate, although the behavior of their parents might be. I’d rather put the stigma, if there really needs to be one, where it belongs. I don’t see that any stigma is needed.
davidm:
I respectfully suggest that your conclusions concerning the effects of feminism rely upon rhetorical leaps across logical chasms. What feminism has attempted to achieve is recognition that men and women have choices and that the pursuit of a career by a woman is not an editorial against the values of childbearing. Furthermore, the idea that an independent woman is emasculating has as much legitimacy as the idea that a woman invites rape by her manner of dress. It is astoundingly insulting to argue that a male’s sense of self, and his self-respect, depend upon a social structure in which he is not required to compete with women in the workplace, or to be able to change diapers.
I have yet to meet a deadbeat loafer who was a victim of feminist emasculation. Over the course of many years of practicing law, however, I have encountered a number of deadbeats who ignore their obligations to their children because they know they can.
Mike Appleton wrote: “… the idea that an independent woman is emasculating has as much legitimacy as the idea that a woman invites rape by her manner of dress.”
I never spoke of an independent woman emasculating a man. I talked about the push of feminism. What I have in mind is how movies constantly depict women being stronger than men. Rather than men being heros who gallantly save the damsel in distress, we have women dressed in sexy latex black outfits using martial arts to beat up any man who gets in her way. We constantly have gratuitous punches by women knocking men out. Men are always shown to be complete idiots, unable to mechanically fix things, unable to know what is going on, it is always the woman who is faster, stronger, and smarter. Now personally, I kind of like it because I find a strong, smart sexy woman attractive. But I live in a household filled with women, and they always laugh about how unrealistic it is. When my wife sees the stupid idiot man on the screen, she laughs and asks my daughters, “Does that look like the way your dad is girls?” They all yell, “no, why do movies never represent reality?” No wonder some women who try lesbianism in high school say later that they regret never really gave a man a chance.
Mike Appleton wrote: “I have yet to meet a deadbeat loafer who was a victim of feminist emasculation.”
Very surprising. I know many couples where the woman supports the man. I know many divorced women who say they left the man because he would not work. I know one woman who does not want her husband to work. She wants him to be the breadwinner, take care of the children at home, and pursue his hobbies. Many men today look for a woman to support them and basically be a surrogate mother to them. I think that is shameful. I think most women would prefer a real man.
Mike Appleton wrote: “I respectfully suggest that your conclusions concerning the effects of feminism rely upon rhetorical leaps across logical chasms. What feminism has attempted to achieve is recognition that men and women have choices and that the pursuit of a career by a woman is not an editorial against the values of childbearing. Furthermore, the idea that an independent woman is emasculating has as much legitimacy as the idea that a woman invites rape by her manner of dress.”
I find your viewpoint of feminism narrow and naive.
A very popular proverb among feminists, especially feminist activists like Irina Dunn, Gloria Steinman, and others has been:
“A woman without a man is like a fish without a bicycle.”
Such a slogan conveys the idea that a woman has no need for a man. It attacks the very idea of marriage, where the man needs the woman and the woman needs the man, to complete each other, especially in their reproductive drive to reproduce and have children.
It amazes me how many in this forum cannot see any logical connections between these ideologies. Both attempt to strip the natural biological differences in the sexes of their value in marriage.
David, ” the distinction between divorce and annulment focuses upon whether or not the reproductive act of coitus has taken place. It doesn’t matter whether or not actual reproduction took place,”
Strange. I know of three annulments. One was within weeks of the marriage so I assume the marriage wasn’t consummated. The other two were the parents of children. One of these was one of Bobby Kennedy’s boys. The other was my ex-husband’s new wife, the mother of two boys. Immaculate conceptions?
davidm:
To my knowledge, the earliest extant laws concerning marriage can be found in the Code of Hammurabi. My copy is at home, so I’ll have to outline a few points without a citation. First, marriage required a contract. Second, the principal function of the laws was to protect the husband’s ownership interests in his spouse, his offspring and his possessions. Indeed, the laws prohibiting adultery applied only to the wife, presumably because of the importance of assuring the legitimacy of the husband’s children. Procreation was obviously of critical importance. The inability of a wife to produce children permitted the husband to procure a second wife, The husband also had control over all of the marital assets, a rule which also applied to marriages under the common law until relatively recently. In the case of divorce, there were rules concerning the continuing support of the former wife and the children. That’s a brief synopsis, but it shows that the genesis of marital law is actually the law of property.
That procreation no longer takes on the urgency that it once did is a social reality borne of science: we no longer live in a world in which half of our children will not live beyond the age of 10.
I firmly believe that recognition of same-sex marriage will have absolutely no impact on male-female marriage rates, despite the position of the Heritage Foundation. Indeed, I know of no reason to assume the contrary.
Mike – it is not going to have an impact on opposite sex marriages, but it is going to affect the divorce rate. This is a good time to switch to divorce law.
davidm2575
I might also point out for those suffering from historical amnesia that the distinction between divorce and annulment focuses upon whether or not the reproductive act of coitus has taken place. It doesn’t matter whether or not actual reproduction took place, but other sex acts such as those used by homosexuals are not considered to have consummated the marriage. In homosexual marriage, they lack the complementary biological equipment to consummate the marriage. Ooops.
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Again, (You Are Here) and that place you wishfully speak of has passed on.
Dredd wrote: “… that place you wishfully speak of has passed on.”
Not for a little less than half the people. And the issue has never really been debated in democratic fashion. Who knows what position the people will take in an organized debate forum where the facts are fully explained? Most people support your view now because of propaganda. It is prudent to remember also that it only took 30% of American citizens to support the American Revolution for us to war ourselves into freedom from a tyrannical government. People may get tired of being pushed around and marginalized as you do here.
Paul C. Schulte
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.
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That common law went down in Lawrence v. Texas.
That wasn’t common law, that was statutory law.
Dredd wrote: “That common law went down in Lawrence v. Texas.”
That is more common law which voided State legislation. Where is the legislation that actually codifies your principles? Why are you against the democratic vote or work of the legislature when it is against your principles, but for it when it helps your cause?
I might also point out for those suffering from historical amnesia that the distinction between divorce and annulment focuses upon whether or not the reproductive act of coitus has taken place. It doesn’t matter whether or not actual reproduction took place, but other sex acts such as those used by homosexuals are not considered to have consummated the marriage. In homosexual marriage, they lack the complementary biological equipment to consummate the marriage. Ooops.
better said: The English common law, which parented our own common law, as well as our own common law, both fade into history and relevance upon the passing of legislation on the same subject of the former common law.
davidm2575
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.
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The English common which parented our own common law, and our common law both fade into history and relevance upon the passing of legislation on the same subject.
Dredd wrote: “The English common which parented our own common law, and our common law both fade into history and relevance upon the passing of legislation on the same subject.”
But I am asking for legislation on this, and all I get is silence. Until such legislation, the common law is what we go by. Unfortunately, many activist federal judges are ignoring the common law, and the States’ right to legislate on this subject, and ruling State law unconstitutional based upon a twisted interpretation of the 14th Amendment. We are heading for a Constitutional Crisis with all of this nullification of State legislation on marriage.
” [You] live in the rank sweat of an enseamed bed,
Stew’d in corruption, honeying and making love ove the nasty sty!” – Shakespeare (Hamlet)
davidm:
Pulling a mini-sermon from an 1888 case dealing with territorial law is not particularly helpful. I have said what I have to say on the contractual aspects of marriage here: http://jonathanturley.org/2012/05/27/marital-dischord/
All personal contracts are subject to termination, including marriage. Florida law calls it “dissolution of marriage,” which is nothing more than the dissolution of a particular type of partnership and the winding up of its affairs pursuant to specific statutory procedures.
The gradual abolition of common law marriage has not come about because “the law has lost its way,” but because we are an organized society and there is no longer any practical need for the doctrine.
Mike Appleton wrote: “Pulling a mini-sermon from an 1888 case dealing with territorial law is not particularly helpful.”
LOL. It is NOT a sermon. It is dictum from a Supreme Court decision.
Loving v. Virginia thought well enough of Maynard v. Hill to reference it twice in their 1967 decision that invalidated laws prohibiting interracial marriage. So it was helpful to them in understanding marriage, but it was not helpful to you when I quote it?
It really amazes me how you keep trying to cloak arguments from law as being religious. There was no mention about either God or any particular religion in that legal quote. It simply outlined the legal standing of marriage as being more than a contract. Marriage is a legal acknowledgment of a relationship like mother / father, daughter / son, etc. Yet to you, the opinion of the Supreme Court is a sermon that is not helpful. What is sad is that the less knowledgeable who admire and trust you will take what you say here as the gospel truth without any investigation into the facts.