The Edge Of Discrimination
People often complain about how serious the struggle is for civil rights "these days." That's because no sooner do you solve one problem than another arises, since the argument is always on the edge. That was sort of the point I was making in a recent comment.
More specifically, I was stating even if America decided same sex marriage was okay (a position I think will eventually win out), there'd be a new problem--should religious people be forced to go along with this new standard. We have religious freedom in America, but that doesn't mean religions or the religious can flout any law they choose.
I didn't know my old friend, Tom Berg (and a bunch of other law profs), was already trying to deal with this. He (et al) has proposed a religious-liberty exemption to same sex marriage legislation. (What about judicial decisions?) The idea is to help shield religious traditionalists who oppose same sex marriage from discrimination lawsuits based on their activity, or lack thereof.
First, will legislators who want SSM agree to this? Maybe so, if they think it'll make it easier to get their laws passed. Second, will it make it easier to decide what's acceptable? Probably, though there's no guarantee the "edge" cases will be any easier to decide.
posted by LAGuy @ 12:23 AM
4 Comments:
There was an excellent article in First Things about five years ago that argued that for the past half century, the first amendment protection of religion has been essentially meaningless, because every protection afforded to religion by the SCOTUS was exactly the same as it would have been from the first-amendment protections of speech and assembly alone.
I think this overstates the case (it is certainly not true with regard to military personnel, who enjoy much more freedom of religion than they do of assembly and speech).
But by and large, it seems true, and I think the reason is the judicial principle that a law that impedes your freedom of religion is okay if that's not its purpose.
I think the extreme case of this principle is the 1990 peyote case (Employment Division v. Smith), which held that since drug laws were not intended to have religious impact, American Indian peyote rituals were not protected by the 1st amendment. IIRC, this reversed an earlier decision saying the opposite. If ED v. Smith had been the law of the land in 1919, would Prohibition have outlawed the use of wine in Catholic and Jewish ceremonies?
Why call it a religious liberty exception- its effectively just a "I don't agree with it" exception. Dressing up preferences as "religious beliefs' that are somehow superior in law to other beliefs makes no sense.
But religious beliefs have always been given a special status in our society, both through the First Amendment and law in general. Maybe a personal philosophy should be respected as much as a transcendent belief by which you lead your life, but that's not the history of our country. And once you make an exception for anyone, suddenly instead of people drinking wine during religious ceremonies during Prohibition, now anyone can drink any time they please because they think people should be free to.
This is the problem with any legislation that tries to outlaw people holding specific opinions. The case of the wedding photographer in California who was sued because he declined to photograph a gay commitment ceremony. He wasn't rude, he referred the couple to another photographer, but nevertheless, the gay couple felt insulted and sued (and won, as I recall).
This is outrageous in my opinion. Yet, how would I feel if the photographer refused to photograph black weddings (or white weddings)? I have set up a false dilemma, because racial discrimination is of a different magnitude than sexual orientation discrimination. But if I'm going to be consistent, i do believe every US citizens has a right to dislike, disapprove or even hate anything they want about another person. I'm not incensed by the thought of a photographer refusing to take pictures of two red-heads getting married. I figure it's his choice to lose out on this revenue stream for whatever reason he has.
So, in the end, I would support the proposed legislation. A motel owner who is troubled by the idea of homosexual activity taking place in her cottage should not face financial ruin. I recognize the need to change America fundamentally after the Civil War failed to change people's racist attitudes. But someday, I think, when being a racist subjects one to financial damage in and of itself, I would like to see the country return to full protection of the freedom of speech and thought.
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