Religious Freedom in a Cave, Under a Blanket, with a Flashlight

Jon Pincince responds to my most recent post on same-sex marriage essentially by making the counter-assertion:

First, of course society should “allow dissenting opinions about the significance of homosexual relationships,” but those opinions should not be written into our laws to deny equal civil rights to those who enter into what some may consider less “significant” relationships.
Second, we must begin with equal civil rights. If there are consequences that flow from that position, then our society’s people, organizations and institutions will have to make adjustments to deal with those consequences. For instance, if the Catholic Church is “torn from the adoption business” because it refuses not to discriminate against lawfully married same-sex couples, then other institutions and organizations would have to step in to fill that void, and they would. This would not impinge on the Church’s, or any individual Catholic’s, religious freedom. They would remain free to believe what they believe and practice as they wish. They would not be free, however, to use religion as an excuse to be exempted from adhering to laws that grant equal civil rights to all members of our society.

His argument has the pleasant consequence (for the pro-SSM side) of avoiding all of the procedural difficulties inherent to life in a free, democratic society in which people disagree about fundamental principles. Civil rights come first, and your bigotry is not a right. We win. You lose. The End. Knock the gavel.
But by what contorted vision of religious freedom — that is, religious citizens’ civil rights — can it not be a prohibition of “the free exercise” of religion to bar a Christian organization from offering charitable services in accordance with its members’ beliefs?
In keeping with that wispy dismissal of a weighty question, Pincince goes on to treat consequences lightly, indeed. In the delicate balance required of our form of society and government, Pincince insists that his definition of civil rights must come first, with a promise of answered obligation: “other institutions and organizations would have to step in to fill that void, and they would.” Would they? Apparently, the Catholic Church’s involvement answered some kind of a shortage. More likely than not, the other institution or organization that must step in would prove to be of a taxpayer-funded sort.
From the Catholic’s perspective, the mandate of this particular brand of civil rights has harmed those unfortunate children anted as investment in a flawed concept of family — deprived by design of the closest representation of mother and father available to them. Now from the society’s perspective, the entire citizenry (with emphasis on the working and middle classes) will be further burdened with the weight of expanding government as a drain on their resources and a meddler in their lives and with the consequences of having brushed away the wise tradition of mother, father, marriage, child, family.
And for what? So that a group of people — better educated and wealthier than the average — can answer the ever expanding requirements of their refusal to acknowledge that, whatever the moral implications, their affections are out of keeping with an historical norm that has value as such. Worse yet: so that a broader segment of society can absorb a ready-made balm of being “on the right side of history,” with no direct cost to themselves and many moral and personal palliatives.
Under the preferred regime of Mr. Pincince, Esq., citizens would not be free “to use religion as an excuse to be exempted from adhering to laws that grant equal civil rights to all members of our society.” What he doesn’t explain is why his civil rights construct ought to be imposed upon his fellow Americans. Perhaps he understands, deep down, that it is built upon a worldview that is ultimately no more objectively founded than the religious views of those to whom he would dictate the law.

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brassband
brassband
13 years ago

Whatever one may think of same-sex attraction . ..
There is no question that within our Constitution, and indeed among the inalienable rights that we hold to be self-evidently endowed upon us by our Creator . . . is the right to life.
Yet the Supreme Court of the United States says that, notwithstanding the Constitution’s purported protection of this premiere civil right, our elected representatives are not permitted to define the scope of that right’s protection, lest, as the Casey troika so weirdly expressed it, their regulation intrude upon some individual person’s “own concept of existence, of meaning, of the universe, and of the mystery of human life.”
So Mr. Pincince is in the great tradition of the finest fiction-writers of First Street; can’t find a way to justify what you want to do? Call it a civil right, give it primacy over other civil rights, ban all other actors from saying “nay,” and — Eli-Manning-to-David- Tyre — you win the game!

Jon
Jon
13 years ago

Justin,
The worldview upon which my civil rights construct is built is equality. Our laws give you and me the right to marry people with whom we are in love, to whom we are physically attracted and with whom we want to build our lives. Right now a gay man does not appear to have that right under Rhode Island law. As a matter of equality, I think he should. As far as “imposing” this worldview on my fellow Americans – it only seems an imposition because equal rights have been denied for so long and society must adjust to what should have been the norm all along.
brassband,
See above. I am not inventing a civil right. I am arguing for equal civil rights.

Justin Katz
13 years ago

I am arguing for equal civil rights. No. You clearly are not, because this is incorrect: Our laws give you and me the right to marry people with whom we are in love, to whom we are physically attracted and with whom we want to build our lives. Our laws do not and cannot give us such a right. The person whom we love may not wish to marry us, or may be unavailable for marriage, whether because married to somebody else or (ahem) of the same gender. Moreover, our laws also give us the right to marry somebody whom we do not love, to whom we are not attracted, and with whom we’ve great reservations of spending the rest of our lives. (Of course, we hope that nobody enters into such marriages, but we are not empowered to deny them, because they are the right of the two.) On the other hand, our laws do not give us the right to marry people whom we love if: 1) we are already married, or 2) that person is a near kin, or 3) that person is of the same sex (except in Massachusetts). Your worldview sneaks in not as a question of equality, but as an understanding of what “marriage” is supposed to be. I disagree about both the essence of marriage and the socio-political reason for the state to recognize it. For my part, I’ll allow all the right to “marry” after their own fashion, but without the ability to supplant the public definition of the institution. For your part, you would disenfranchise me not only in my right to shape my own government, but in my right to live the expression of my hardly radical religious beliefs. You believe yourself to be taking a straightforward, benign position, but… Read more »

brassband
brassband
13 years ago

Actually, your premise is faulty.
Our laws do not give us “the right to marry people with whom we are in love,” as you put it.
What if we are in love with someone who is married to another? What if we are in love with two or three? What if we are in love with our sister? Our mother? Someone who is twelve years old?
Are you prepared to say that those laws, as well, must give way to the civil right that you have “discovered?”
Or do you have some construct that allows those laws to stand, even though they might prevent us from marrying “people with whom we are in love?”
Isn’t it fair to say that what we think of as “civil rights” come either from the Constitution itself or from some other supervening source? Some might call this source the Creator, some might think of it as natural law, or a branch of the common law.
But however we conceptualize its source, this branch of law usually has the quality in some sense of universal human (or at lest Western) acceptance (what Catholic theologians might call the “ordinary magisterium”)or what Jefferson characterized as “self-evident truths.”
No case can be made for including same sex marriage within the scope of the rights specifically enumerated in the Constitution and, similarly, no case can be made for claiming that its availability is historically within our society’s self-evident truths.
To call it a “civil right” you need to resort to legislative means; amend the Constitution or devise some statutory mechanism permitting it.

msteven
msteven
13 years ago

Actually, both premises are faulty.
Justin is correct that Jon’s premise asserts that same-sex marriage is a civil right. That is debatable, not an assertion. It is clear that the anti-miscegenation laws were a direct affront to equal civil rights. But applying that to same-sex marriage also applies it to adultery, polygamous or most other relationships. Lines are drawn as to which relationships are legally acknowledged by the State. There is no denying that adding same-sex to the fold significantly changes the definition and affects other institutions.
But Justin’s counter assertion that this is a forced negation of religious freedom is also faulty. The reality is that there are numerous things that are supported by religious views that are not legal. There are numerous examples like polygamy and punishment for adultery not to mention animal sacrifice. Religious freedom is not absolute. Lines are drawn. The civil rights of people to be treated equally does trump the free practice of ones religious views. But I would agree with Justin and the other comments that the premise of denying same-sex marriage is the denial of equal civil rights, is a faulty assertion.

Jon
Jon
13 years ago

Justin and brassband, It is obvious that my statement that you both quote was not meant to say that there are no other restrictions on who a person may marry. Your assumption otherwise is either out of lack of good faith or lack of reasonableness. And despite your protestations, the fact remains that I am simply arguing that, assuming all other legal requirements are satisfied and all other things are equal, Joe should have the same legal right to marry Jim that Jane has. And you both overlook that I do agree with you on one point: yes, Justin, I agree that I am arguing to change the public definition of marriage, and yes, brassband, I agree that we should use legislative means or constitutional amendment to do so. While I welcome the result of what the Massachusetts Supreme Court has done, I think the better way is to grant equal marriage rights through our more representative branches of government. I am not arguing that I have “discovered” any civil right, I am arguing that we should change the law. As to Justin’s argument that such a change would disenfranchise Catholics of “the right to live the expression” of their religious beliefs: I think you overstate the problem, but I admit that perhaps I do so because I am not a practicing Catholic (or a practicing anything) and may not be fully aware of the ramifications of the change I advocate for those who do practice. But it seems to me that there must be a way to allow equal marriage rights while accommodating the practice of religion. Can we legislate when a church should be and should not be exempt from discrimination laws? Clearly the church should not be forced to marry anyone. Should the church be allowed to… Read more »

Thomas Schmeling
Thomas Schmeling
13 years ago

Justin,
Leaving aside entirely the question whether same-sex marriage is or must be allowed under state or federal constitutions or laws…..
If you have a problem with the idea that one’s religious beliefs do not exempt one from following democratically-enacted constitutional or statutory provisions (ie, that religious groups do not get an exemption from civil rights laws recognizing same-sex marriage), I would suggest that your primary antagonist is conservatives’ darling, Antonin Scalia.
I strongly advise that you read, if you have not already, his majority opinion in Employment Division v. Smith. http://www.oyez.org/cases/1980-1989/1989/1989_88_1213/
I will say that, while I find Scalia’s treatment of precedent there to be intellectually dishonest, I remain uncertain whether or not I agree with his ultimate conclusion.
I’ll add, apropos of another thread, that I defy anyone to try to characterize the Smith decision as either simply “liberal” or “conservative”. It is one reason I find the decision especially fun to teach.

Justin Katz
13 years ago

Jon, The key problem, which negates much of the rest, is that you can’t evoke the notion of “equal civil rights,” as pertains to a civic mandate, in this context and then fish around for some legislative way to bring about the end result. You can’t “welcome the result of what the Massachusetts Supreme Court has done” without erasing the necessity of legislative, rather than judicial action. With the majority of SSM advocates, you want the discussion to fall whichever way suits your rhetorical needs. Similarly your assertion that Brassband and I take your statement with an absence of either good faith or reasonableness: you want to be able to define the right of marriage as including “people with whom we are in love, to whom we are physically attracted and with whom we want to build our lives,” but you want other restrictions tacitly left out of the definition when you disagree with them. Society, much less the law, doesn’t work like that. The basic realization to which I was pointing was that the rules and restrictions inarguably point to marriage’s purpose as otherwise than your definition requires. This is fundamental, because it goes to show why all other things are not equal when Joe wants to marry Jim. The kinks won’t just work themselves out, legislatively or otherwise, because those who’ve promoted such rhetorical devices as “equal marriage rights” will not allow it, in part because of the breadth and depth of government “regulation” — from employment to adoption to education to who knows what else. The only “clearly” that you, as a more-than-usually reasonable advocate can offer is that a church shouldn’t be forced to actually marry homosexuals. But the answer to this has already been devised by your co-advocates: simply make a church solemnization inadequate to… Read more »

Justin Katz
13 years ago

Thomas,
And thus does liberal argument proceed from the assumption of authority.
I did not express “a problem with the idea that one’s religious beliefs do not exempt one from following democratically-enacted constitutional or statutory provisions.” I argued that same-sex marriage is not a simple matter of one side’s acting from a straightforward platform of clear “civil rights,” while the other simple digs its nails into a notion of tradition uber alles. We have competing (religiously founded) views of the definitions of marriage, society, and human rights, and it is insufficient for disputants on the SSM side to simply clap themselves on the back for picking the side of equality and freedom. They are not; they are choosing a particular brand of those abstractions.

Thomas Schmeling
Thomas Schmeling
13 years ago

Justin,
I am completely baffled by your response.
First, you previously said that “Under the preferred regime of Mr. Pincince, Esq., citizens would not be free “to use religion as an excuse to be exempted from adhering to laws that grant equal civil rights to all members of our society.” What he doesn’t explain is why his civil rights construct ought to be imposed upon his fellow Americans. ” You seemed quite clearly to be objecting (in this post and the previous “not just a right” post) to the position that the Catholic church should have to obey democratically-enacted anti-discrimination laws.
Thus, in my view, you did indeed “express a problem with the idea that one’s religious beliefs do not exempt one from following democratically-enacted constitutional or statutory provisions.”
Second, on what conceivable grounds do you characterize my comment as “liberal”? All I did was point out that the second-most-conservative Justice on the US Supreme court strongly supported Mr. Pincince’s position that your religious views do not entitle you to an exception to the law. If you don’t like arguments from authority, that’s fine, but there’s nothing “liberal” about that kind of argument (usually, it’s quite the contrary) and , especially when the athority is Justice Scalia.
Finally, I even said I wasn’t sure whether I thought Smith was right or wrong, so what’s with the attribution of views?
You should be careful about assuming that anyone who disagrees with you on any particular point is a “liberal”. And, you should read the Smith decision.

brassband
brassband
13 years ago

Jon —
You say the following:
“assuming all other legal requirements are satisfied and all other things are equal, Joe should have the same legal right to marry Jim that Jane has.” (emphasis added)
I take from your statement that you would concede, as I suppose you must, that at least until the past few years, there was virtually no place in the world where Joe would have had the legal right to “marry” Jim.
Why, do you suppose, is that the case?
Could it be that virtually every society in every corner of the globe accepted the notion that marriage could occur only between persons of the opposite sex?

Justin Katz
13 years ago

Thomas.
I’m baffled by your bafflement. You even quote a line that illustrates my central concern: that there are two civil rights constructs in opposition, and those pushing for one of them (that which imposes SSM) tend to argue as if theirs is self-evidently and objectively mandatory while the other is merely an expression of bigotry.
The “authority” of which I spoke was the authority to define the argument, and I suggested that the argument that you’re making (a liberal one, regardless of your own position on a political scale) presumes your preferred regime. That, it appears to me, is why you understand my argument to be on behalf of a religious exemption from the acknowledgment of others’ civil rights.
In the “Not Just a Right” post, I am clearly not stating the constitutional impossibility of requiring religious people to conform to discrimination laws, but merely pointing out that the enactment of SSM (particularly through court-driven civil rights legislation) has broad consequences that restrict others’ freedoms. Those consequences ought to be acknowledged before the gavel strikes.
We’re not arguing a topic defined by your syllabus. I’ve made a point, and your response thereto was largely irrelevant.

Jon
Jon
13 years ago

brassband,
Again, I’m not arguing otherwise. I said very clearly in my last comment that I was arguing not about what the law is but about what the law should be.
The “it’s always been done this way” argument carries little weight. There have many ideas and practices either authorized or condemned by other societies throughout history with which our present views are in disagreement. I am arguing for the progress that I think equal marriage rights represents.
At this point we are obviously talking past one another, so I’m done, at least for tonight.

brassband
brassband
13 years ago

Well, you might be done, but I’m not quite.
Your agreement regarding the historical universal view of marriage is important, because I submit that this universality places the traditional definition of marriage in the realm of those “self-evident truths” (or, for the theologians, “ordinary magisterium”) that I mentioned about three dozen posts ago.
Mightn’t it be that this universal view of marriage exists because it is the right view of things in the natural order? A law written, as St. Paul would say, not in stone, but on the human heart?

Mike Capelli
Mike Capelli
13 years ago

Jon, et al,
You can get your perverted friends to pass any law you want, just remember, you can’t fool Mother Nature.
Perhaps you legal know-it-alls can tell my gay friend where to go to sue due to his being denied the right to give birth to a baby? After all, you define “rights” as anything you want.

Ragin' Rhode Islander
Ragin' Rhode Islander
13 years ago

The whole homosexual marriage initiative is a construct of just the past decade or so. To argue that the subject falls under the rubric of “civil rights” or “equal rights” is convenient for its proponents, but on its face is suspect given that no major civilization in thousands of years of recorded history in which marriage between one man and one woman were recognized, celebrated and indeed have been the norm across all civilizations. In fact, while other concepts of “civil rights” or “equal rights” have been witnessed through recorded history, such as slavery being normal and accepted to repudiated, the acceptance and embrace of the one man – one women institution of marriage has been the one constant, the one universal. So to now try to argue that homosexual marriage is a matter of “civil rights” or “equal rights.” It is an artificial construct. What has also been constant throughout history is the recognition that homosexuality is abnormal. After all, this is basic biology. Homosexuals have been met throughout history with varying degrees of repression through tolerance, but rarely if ever were considered “normal” – though of course that is the ultimate intent of the current “gay rights” agenda – to not just achieve acceptance and tolerance (largely in existence, and rightly so), but to “normalize” homosexuality within society so that it is considered (in effect) no different from heterosexuality. Pursuing homosexual marriage is a “brass ring” in that agenda. Basic biology tells us that homosexuality is inherently abnormal. Whatever causes it to occur with statistical regularity – genetic; some hormonal or other issue during development in utero; whatever – does not make render it normal or desirable. The focus should be on research to identify the cause and develop a treatment so that children in the future are… Read more »

Chairm
Chairm
13 years ago

Jon said: “other institutions and organizations would have to step in to fill that void, and they would” That’s irrelevant, Jon. When Catholic Charities provided adoption services, other institutions were already available to serve gay adults who sought to adopt children in Massachusetts. In fact, it has been reported in the state’s legislative chambers that about 40% of adoptions have gone to gay and lesbian people. That is severely disproportionately, don’t you think? It begins to look like an affirmative action program. In the meantime, Catholic Charities facilitated about one-quarter of all adoptions. They took special concern for children who might otherwise have been aborted. They served single unwed mothers in ways that helped assured those women that their children would be raised by married mom-dad couples. There is much more of a pragmatic nature that the good people of Catholic Charities did — far beyond the official minimum that the State regulated — that was lost in a state where there are children in need of such care. How it serves “equality” to drum such an organization out of adoption services is a mystery that perhaps you can solve for us. As for the nonsense about infringing on civil rights, there is no such right to adopt children. None. And it is perfectly reasonable, and constitutional, to prioritize adoptors based on various significant factors such as marital status. Now, you may claim that freedom of conscience is no excuse for prioritizing married mom-dad couples, but if recruitment of prospective adoptors was so prioritized, then, there would be more children adopted. Instead we see an adoption “industry” that has become more and more dominated by gay activists intent on using children in need as political symbols to quash dissent against gay identity politics. The SSM imposition in Massachusetts was undemocratic,… Read more »

Chairm
Chairm
13 years ago

Jon said: “While I welcome the result of what the Massachusetts Supreme Court has done, I think the better way is to grant equal marriage rights through our more representative branches of government.” No unjust end is justified by just means; no unjust means are justified by an unjust end. On what basis did the SJC majority decide the Goodridge case? That court could not produce a majority of justices who said that there was unjust discrimination based on sexual orientation. It could not produce a majority who said that there was unjust discrimination based on sex (i.e. male and female categories). Quite the contrary: 4 justices explicitly disagreed with the claim of unjust discrimination based on sexual orientation. And 6 of 7 justices disagreed with the claim based on sex. Other than the result, what is there that you approve of about what the SJC did? It did not re-write the marriage statutes. It left that up to the legislative branch which has failed to do the re-write. It did not amend the marriage reference in the state’s constitution. That, it has made clear in its case law, is left to the amending process through which such changes can be ratified only by the People. The court proposed to change the common-law definition of marriage. It was not so empowered, but even if it could grab such a power, common-law is subordinate to statutory law which the court cannot amend constitutionally. Besides, there has never been common-law marriage in Massachusetts — as far back as its colonial period and certainly as far back as its first constitution. The SJC pulled the table-clothe out from under a table of tea cups and crumpets. A neat party trick but a farcical distortion of its own jurisprudence. Before the Goodridge case, obstructionists… Read more »

Thomas Schmeling
Thomas Schmeling
13 years ago

Justin,
You asked, “But by what contorted vision of religious freedom — that is, religious citizens’ civil rights — can it not be a prohibition of “the free exercise” of religion to bar a Christian organization from offering charitable services in accordance with its members’ beliefs?”
I pointed out that Justice Scalia has, by virtue of his authorship of the Smith opinion, been a leading proponent of the view that there is no religious exemption from general laws,
Then you said, “I’ve made a point, and your response thereto was largely irrelevant.”
It is beyond me how a direct answer to a question you posed is irrelevant to the post containing the question.

Justin Katz
13 years ago

But you took that line out of the context of the rest of the post (understandably, perhaps, inasmuch as it allows you to raise a specific topic that you find interesting). Inasmuch as it is a necessary assumption of my total argument that civil rights are not (indeed cannot be) absolute, a specific legal ruling stating as much affects it not at all. (Of course, were I of a mind, I’d argue that there are significant differences between Smith and the case at hand.)
Again, my point is that the decision, with SSM, is not one between civil rights, on the one hand, and something other than civil rights on the other. The issue is whose civil rights bend for others’ and why.

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