Category Archives: Religious Liberty

In the Wake of Obergefell v. Hodges: Gay Marriage, Religious Liberty, and the Free Markets

Church of the Pilgrims, Washington DC

[Photo: Church of the Pilgrims, a Presbyterian USA Church in Washington DC, via Wikimedia Commons.]

On Friday, June 26, 2015, the Supreme Court held in Obergefell v. Hodges that under the Fourteenth Amendment, states are required to license marriages between same-sex partners and to also recognize same-sex marriage licenses from other states. The topic of same-sex marriage is probably one of the most polarizing topics in modern-day America. Over the past several days I have seen dozens of people, both for and against same-sex marriage, acting hateful to one another, unfriending and/or blocking people on social media because they have different views, and just having a very nasty tone. But why? Why can’t we have a dialogue on the topic? Let’s face it. Obergefell is now the law of the land. The purpose of this post is to try to open that dialogue. So now that gay marriage is legal in all 50 states, what comes next?

Gay Marriage

Contrary to what many may think, the Supreme Court did not create new law here. They did not legislate from the bench. The Supreme Court has a long history of recognizing marriage as a fundamental right and has held that the states cannot discriminate against consenting adults with regard to this fundamental right. The Supreme Court has held this time and time again. As Justice Kennedy noted in his majority opinion:

[T]he Court has long held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

– Obergefell (slip op., at 11)

Furthermore, the right to marry is guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Anytime that a fundamental right is restricted to a group of people, the government bears the burden of proving that the law is necessary to meet a compelling government interest, that it is narrowly tailored to meet that interest, and that the means of implementing the law is the least restrictive means available. The Court found that there is no compelling government interest in denying same-sex couples the fundamental right to marry solely because of their sexual orientation. This is not creating new law. This is the Supreme Court telling the states that any law which restricts fundamental rights between consenting adults is unconstitutional.

Another argument that I often hear is that people think that this should be left up to the individual states to decide. That would be true under the Tenth Amendment. However, the Tenth Amendment only applies to powers not delegated to the United States by the Constitution. The Supreme Court has the power to interpret these laws under the Fourteenth Amendment. So the states’ rights argument doesn’t apply. Bans on same-sex marriage also violate the Privileges and Immunities Clause of the Fourteenth Amendment. This means that citizens who move to a new state are entitled to the same rights and privileges of citizens in the new state. The state cannot discriminate against them. Therefore, a marriage license that is valid in Massachusetts is also valid in Mississippi. A state cannot discriminate against people who move from other states.

This is not a legislative issue either. As Justice Kennedy stated:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. Obergefell (slip op., at 24)

So even though the ideal process may be to go through the democratically elected legislature, this does not preclude one from raising the issue before the Court if his or her fundamental rights are abridged.

Therefore, the Supreme Court did not create a new law. They did not legislate from the bench. This is not a case of judicial activism run amok. Even if you do not agree with gay marriage, at least understand that the government cannot deprive others of fundamental rights that are given to the rest of us.

Religious Liberties

Rest assured that just because same-sex couples can now marry in all 50 states, it does not mean that the government can discriminate against religious institutions. The government should not force any particular denomination, pastor, priest, or clergy to perform a same-sex wedding against their will. This would violate the Free Exercise Clause of the First Amendment.

I don’t foresee this as much of an issue. Most gay people that I know would get married outside of the church anyway. But if a same-sex couple does want to get married in a particular denomination, their right to marry is not infringed by a pastor’s denial to perform the service. The same-sex couple is still free to seek out another pastor. If a Southern Baptist church does not want to perform the ceremony, the couple can go to an Episcopalian church. If a pastor with the Presbyterian Church of America (PCA) declines to perform a ceremony based on his religious conviction, the couple can seek a pastor with the Presbyterian Church USA (PCUSA) willing to perform the ceremony.

Therefore, I don’t see this decision as an attack on our religious liberties. Every denomination should be able to exercise their faith and religion as they see fit under the Free Exercise Clause of the First Amendment. If you do agree with gay marriage, at least understand that the government cannot infringe on a clergy’s right to exercise his or her faith by declining to perform a same-sex marriage.

Free Markets

Okay. So now same-sex marriage is legal in all 50 states. How does this affect the markets and what does it mean for all of the bakers, florists, photographers, et. al who decline their services to same-sex couples? As a Christian AND a libertarian, I sometimes find myself at odds with…myself. Even if I disagree with something that goes against my convictions, it doesn’t give me the right to deprive another of their rights or hate on them for their choices. So I want to view this topic in two lights. How should this be handled with regard to the free markets and the courts? And how does this appear in the eyes of God?

Over the past several years, Christian wedding service providers, such as bakers, florists, and photographers, have declined to provide their services to same sex weddings. In Colorado, Masterpiece Cakeshop was sued for failing to make a wedding cake for a same-sex reception. Despite the owner’s willingness to serve homosexuals in his establishment, he believes that making the wedding cake means that he is participating in the union and it goes against his convictions. More recently, in Oregon, an administrative judge proposed that Sweet Cakes by Melissa pay a same sex couple $135,000 for refusing to bake a cake for a same-sex marriage. Then of course, there was the New Mexico case where the NM State Supreme Court held that Elane Photography discriminated against a same-sex couple by refusing to record their wedding, despite their policy on welcoming gay couples for other services.

From a free market, libertarian position, I disagree with all of these decisions. In each of these cases, the business owner was willing to serve gay couples, but did not want to participate in the wedding ceremony. Businesses are rewarded or punished in the marketplace for their stances and services. If a customer doesn’t like their stance, s/he does not have to give them business. Let the markets dictate what happens to the business. I also understand the business point of view that their services are forms of expression. They should be protected from being forced to cave on their religious convictions. If they don’t want to express themselves in that manner, I don’t agree that they should be forced to. But does that mean that it’s the right decision?

As Christians, is this the way that we are to show our love to the world? In Matthew 22:36-40, Jesus tells us that we are to first, love the Lord our God with all our heart, soul, and mind and second, that we are to love our neighbors as ourselves. When we decline these services to others, are we loving our neighbors as ourselves? Are we reflecting the love of Jesus as we are called to do? I don’t think so. Jesus never really hung out with the religious folks. He was always meeting with, preaching to, and loving on the fishermen, the taxcollectors, the prostitutes, the dregs of society. Jesus said that he didn’t come for the righteous or powerful, but to save those who are lost. When we refuse services to same-sex couples, are we drawing them closer to God, or are we just pushing them further away?

I think that it’s time that we love our neighbors as ourselves.

 

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

Conservative Blogger Advocates Religious Oppression in America

first-amendmentNot much shocks me anymore but once in a while, I run across something that is so idiotic I wonder if there some sort of serious glitch in the matrix. It wasn’t but a few weeks ago that conservatives were standing up for private business owners’ right to discriminate against gay people on religious grounds. The rights of individuals to practice their religion as they see fit trumps nearly all else according to Christian conservatives.

What I’m about to share with you next may well make your head explode (it might be a good idea to get some duct tape to prevent your brains from splattering all over the place).

Ready?

Conservative blogger writing for Western Journalism Steven Crowder is praising China for “banning” Islam within its borders. Not only is he praising China, Crowder also believes the same policies should be enacted here in the U.S.

So what is China doing? It’s declaring an all-out war to make sure Islam doesn’t take over and never gains the strength to attack them. So let me simplify it:

– Female head-coverings are banned. Period.

– Men are discouraged from growing long beards (often poorly grown ones, might I add).

– Even Islamic restaurants are forced to sell cigarettes and drinks. And …

– They must display them prominently. Any business owner who does not follow this order…will lose their business. Gone.

[…]

In other words: China learns. Unlike our inept government, it realizes, ‘Hey, Islam wants destroy us.’ It realizes that Islam is political in nature, not just religious. Don’t get me wrong: communism is terrible, but it’s also what absolves China from the shackling burdens of political correctness. They’d rather survive than be politically correct.

Full disclosure: I have not checked out for myself if China is actually implementing these policies. It wouldn’t surprise me but whether or not China is oppressing Muslims is beside the point. What concerns me is the idea that there are certain Americans who would cheer these kind of policies here (provided that it doesn’t apply to their faith, of course). I never thought I would see the day when conservatives would praise China for religious oppression.

To Mr. Crowder’s point about our “inept government” in how Muslims are being allowed to freely exercise their religion. In most cases, I would not argue against the notion that our government is inept but this isn’t the case this time. You see, Mr. Crowder, here in America we have something China does not. It’s called the First amendment. What part of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” do you not understand? And no, the First amendment does not just apply to Christians but everyone.

As bothersome as this is that someone would write such inane garbage on a conservative* website, it’s even more concerning that there are so many people agreeing with him in the comments section. These people are a much greater threat to our liberties than a minority of American Muslims ever could be.

Instead Of Giving Gay Marriage Opponents Special Rights, Get Rid Of All Anti-Discrimination Laws

forsale

The Alabama House passed a bill on Thursday that allows judges to refuse to perform gay marriages. It passed after a four-hour debate by a vote of 69-25. More “religious protection” bills are on the way according to groups pushing this legislation.

The bill was passed to ease fears that judges and ministers would be forced to perform gay marriages if court rulings legalizing gay marriage in Alabama were upheld by the U.S. Supreme Court. This bill to be blunt is a travesty, would open the door to lawlessness by Alabama’s judges, and should be vetoed.

The first problem with this bill is that it tries to link judges performing gay marriage ceremonies with other travesties on this issue, such as requiring bakers to bake cakes for gay wedding ceremonies. There is a major moral difference between a private company refusing to offer a service and government official refusing to perform their legal duty. Judges are bound by law to serve all of their constituents and perform certain duties as described, despite their own personal feelings on the matter. One of those duties is solemnizing marriages. A judge cannot refuse to perform an interracial marriage because they personally disapprove it.

On the other hand, fining or legally punishing a private individual because they refuse to perform services for a gay wedding is immoral. In this age of Yelp and social media where customers can easily leave reviews of businesses, we need to ask ourselves if anti-discrimination laws covering the private sector are obsolete. If a business is discriminating based on gender, sexual orientation, race, or religion; it’s more easy for customers to identify those offending businesses and for people to vote accordingly with their pocketbooks. There is no need for the state to get involved and punish businesses with fines and other punishments.

If a judge cannot perform a gay marriage ceremony because they disagree with it, they should not be a judge. This is like refusing to sentence someone to jail because they object to a law. Judges do not have that discretion in criminal law and should not have that kind of discretion in marriage law.

As for ministers being forced to perform gay marriages, that’s a red herring. The First Amendment already protects the rights of ministers to refuse to perform gay marriages. The decision of churches to solemnize marriages to whom ever they want, as long as they can legally consent, is a protected religious practice. This legislation to protect them is not necessary.

The best way to solve is to divorce government from the act of solemnizing marriage. Make the only legal paperwork that has to be signed off is the marriage contract itself. Whenever a county or parish official files or signs off on a contract, they’re not passing judgment on the issue. All they’re doing is just filing legal paperwork so it can be enforced in courts. We should also look into ways into getting government out of marriage for tax purposes and other services.

All of these “religious protection bills” miss the big picture. Why should private businesses have the right to discriminate against potential customers based upon their religious beliefs and not have the right to discriminate based on other factors? Here’s another way to put it, why should gay marriage opponents have special rights?

Instead of writing “religious protection bills” to protect business owners from being bankrupted and driven out of business by government agencies for deciding who they want to serve, legislatures should consider a different approach. Every legislature should pass a bill or better yet an amendment to their state’s constitution stating this:

The right of any private business to deny service for any reason, except for emergency medical services and emergency lodging in a licensed hotel, shall not be infringed by any law.

 

 

Anti-discrimination laws, in this era of social media, are relics of the past. It’s time to make these laws history and let the marketplace punish discrimination. I don’t know about you, but I prefer to trust ordinary people than the government.

 

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

Let Us Rediscover the Art of the Peaceful Protest and Civil Disobedience this MLK Day

martin-luther-king-jr-inspirational-quotes-4

In the year 2015 there are many good reasons to protest: police brutality, injustice, the war on (some) drugs, the war on (some) terror, etc. One thing from Martian Luther King Jr.’s legacy that seems to be lost and something we should rediscover is the art of the peaceful protest and civil disobedience.

King understood that for positive change to occur, he had to truly win the hearts and minds of his fellow Americans. Being a positive example by showing the world that he and his followers would take a stand against injustice without resorting to violence was even more important than the words he spoke to that end. Certainly, not everyone believed in using the non-violent approach. Malcolm X and the Black Panthers believed that violence was necessary to achieve their shared goals.*

Who was right?

Personally, I find the pictures and the videos from the non-violent protests and the acts of civil disobedience to be far more compelling. There’s just something about seeing people refusing to act in a violent fashion against the state which inherently IS violence. This has a way of changing hearts and minds.

Contrast this with today’s protests in Ferguson, New York, and elsewhere concerning the police. For the most part, the protesters are peaceful and are using tactics which King would likely be proud. Unfortunately, however; it’s the nasty protesters that are violent, incite riots, or cheer at the news of cops being ambushed which receives far too much of the publicity. Even holding up signs like “The only good cop is a dead cop” or “fuck the police,” though certainly permissible as recognized by the First Amendment, turns people off who might otherwise be sympathetic to one’s cause.

Sadly, it’s not just a few misfit protesters who think that aggression is sometimes warranted to get one’s way. No less than the pope himself last week in the wake of the Charlie Hebdo terror attacks said: “(If someone) says a curse word against my mother, he can expect a punch. It’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.”

The leader of the same Catholic Church which normally advocates finding non-violent solutions to conflict (such as the Just War Doctrine) says that because someone says something offensive about one’s parents or faith it is permissible to use violence against that person! People’s feeling are more important than the concept of free expression.

I’m not interested in living in a world where I cannot insult the pope or his religion nor do I want to live in a world where the pope cannot insult me or my atheism. The world I am interested in living in is one where we can have passionate, even hurtful disagreements without fearing physical harm to my family, my friends, or myself.

Let us all rediscover the art of peaceful protest and civil disobedience on this Martian Luther King Jr. Day.

Idaho Gay Marriage Lawsuit Moot – City Backs Down

I’ve covered the Idaho “Hitching Post” gay marriage case. I started with a relatively in-depth look at the legal issues involved on Monday, and then covered some inconsistencies in the history of the Hitching Post’s religious designation yesterday.

Today, though, it has all been resolved. The Hitching Post’s recent change from performing civil marriages as well as religious marriages to performing ONLY Christian religious ceremonies, and explicitly forming themselves as a religious business 3 weeks ago, have now exempted them from the anti-discrimination ordinance.

From Boise State Public Radio:

Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d’Alene city attorney Mike Gridley sent a letter to the Knapps’ attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt.

But Gridley said after further review, he determined the ordinance doesn’t specify non-profit or for-profit.

“After we’ve looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation,” Gridley explained.

Now, it’s partly incorrect to draw some links between this case and Hobby Lobby. That of course involved a federal law whereas this is a city ordinance, and that case was decided on the grounds of the federal RFRA, where the religious exemption is what protects the Hitching Post here. (That said, Idaho has an RFRA, and virtually everyone is in agreement here that forcing the ministers themselves to officiate the ceremony would violate it.)

But at the same time, there were a few things in that decision (and the precedent discussed in the decision) that are instructive.

The first is that Hobby Lobby held that a “closely held” corporation could have religious beliefs, in the sense that it was the direct expression of a very small-knit group of owners. While a publicly-traded corporation wouldn’t have the same protection, a corporation held by a small religious family is entitled to the same protections under RFRA that the owners themselves would be, because the corporation is not truly separable from them as owners.

The second is that under previous RFRA cases, generally any sincerely-held religious belief is taken at face value. The Court isn’t in the business of deciding what religious beliefs are “valid” and what religious beliefs aren’t. Thus, as long as the actions of the Hitching Post are consistent as a religious corporation, forcing them to offer services to same-sex engaged couples violates their religious freedom. Thus, from the Boise article again:

Leo Morales of the ACLU of Idaho said the exemption makes sense as long as the Hitching Post primarily performs religious ceremonies.

“However, if they do non-religious ceremonies as well, they would be violating the anti-discrimination ordinance,” Morales said. “It’s the religious activity that’s being protected.”

So while some of the red-meat Conservatives were hoping that this would be the wedge that destroys gay marriage, I think everyone’s out of the water.

And to the Knapps, while I profoundly disagree with your belief, and sincerely hope that you come to my side of the aisle on this one, I am glad that you won’t be going to prison or subject to fines. As a libertarian, I think you’re wrong, but as you haven’t taken anyone’s rights away by failing to offer them services, I’m not in the camp that wants to throw you in a cage for it.

H/T: Reason

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