« The Challenges Facing Young Christians | Main | Links Mentioned on the 8/27/13 Show »

August 27, 2013

Comments

Let's give the justice just one full sentence worth of context when we quote him, shall we?

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.

That means you can believe interracial marriage is wrong but your hotel can't refuse a hotel room to an interracial couple.

As long as there is equal prosecution if anyone attempts to start a business specializing in providing services to homosexuals.

If they do not provide equivalent services to heterosexuals, what are the odds that they will get a similar warning?

What service do you have in mind?

The lawyer for the defendants:

"Government-coerced expression is a feature of dictatorships that has no place in a free country. The idea that free people can be ‘compelled by law to compromise the very religious beliefs that inspire their lives’ as the ‘price of citizenship’ is a chilling and unprecedented attack on freedom. Americans are now on notice that the price of doing business is their freedom."

What is the difference between "interracial marriage" and "same-sex marriage?"

In the first instance, it is the addition of an adjective, to narrow the scope of what kind of marriages we are talking about.

In the second instance, although an adjective is also used for the same purpose, the main feature is a fundamental redefinition of what is meant by, "marriage."


To analogize discrimination against same-sex marriages with discrimination against interracial marriages is to commit category confusion.

RonH, there is a category difference on several levels between "interracial marriage" and "same-sex commitment ceremony," doncha think?


Here in New Mexico, even if a couple of lesbians pull off a "commitment ceremony," they are still not married in the eyes of the state. They are just two individual people living together.

The New Mexico Supreme Court ruling may have affirmed state law as written by the state legislature, but I bet it runs afoul of the First Amendment of the US Constitution.

We'll have to see what happens if and when the Huguenins take this to the federal level.

Whether you like it or not, the US Constitution protects religious freedom. These photographers believe, consistent with the Bible, that same-sex marriage is wrong, and thus, as an expression of their religious freedom, refused to take pictures of the same-sex couple’s commitment ceremony. The court declares that this expression of religious freedom is unlawful according to New Mexico’s anti-discrimination law. The implication of their reasoning is that religious freedom can only be expressed as long as it does not discriminate against same-sex couples. My position is that this declaration is up to the People and not up to the courts.

As it stands right now, same-sex couples do not have a constitutional right to be married. Same-sex couples don’t even have that right in the state of New Mexico. Additionally, the US anti-discrimination laws identify characteristics of a person which cannot be targeted for discrimination and labels members of that group a “protected class.” Protected classes have been recognized based on race, color, sex and national origin among others. The US Supreme court has not recognized same-sex couples as a protected class. The state of New Mexico has however, recognized people with same-sex attractions as a protected class. The written opinion in this case goes too far and uses thinly veiled legal maneuvering to extend their anti-discrimination law to same-sex couples.

The New Mexico court’s decision is clearly unconstitutional because the New Mexico court has violated a constitutionally protected right in favor of a non-existent right. Let’s try a different scenario to develop my point. I’m sure that almost everybody would be upset if a state court found a homeowner liable for kicking a trespasser out of the homeowner’s house. The reason people would be angry is that the homeowner’s right to her property has been violated in favor of someone who has no right to the property. That’s exactly what the New Mexico court has done. Same-sex couples don’t have the right to marry at the state level in New Mexico, nor the federal level, and they are not members of a protected class at the state or federal level. Thus, there is no legally recognized right that these photographers have violated, just as there would be no legally recognized right that the abovementioned homeowner violated.

The New Mexico court is free to voice their opinion that same-sex couples should have a right to be married or be recognized as a protected class. However, the job of the court is not to enforce their opinion. The job of the court is to honor the law as it stands. Accordingly, no matter where you stand on the issue, you should oppose the New Mexico court’s decision because it violates the constitutionally mandated checks and balances of the US.

If a person can be forced to provide service to a same-sex couple even if it goes against the person’s religious beliefs, then that is harm to the person. The truth is that if same-sex marriage is given constitutional protection, it will hurt our religious freedom because religious freedom will have to bow to the rights of same-sex couples. People are well within their right to agree with this implication, however, the implications should be made known to all and seriously discussed, instead of swept under the rug under the guise of equality.

Whether or not such change is good for America is another discussion entirely. As a Christian, I am against same-sex marriage. I respect the fact that other people don’t share my convictions. However, as an American I also think that same-sex marriage is not good for the country if it cannot be implemented without forcing others to violate their conscience. Additionally, it would be unprecedented. Previously recognized protected classes are based on immutable characteristics like race and sex. A person can’t control what sex they are or what race they are, so it is unfair to discriminate against them on that basis. Similarly, a person may not be able to control their sexual orientation. The Bible does not discriminate or condemn on the basis of sexual orientation, it only condemns homosexual behavior. 1 Corinthians 6:11 shows that even people with same sex orientation can go to heaven. As such, I as a Christian and an American would favor laws that protected people with same-sex attractions from discrimination. Such people should absolutely be free from persecution and discrimination. This is consistent with Christianity’s call to honor all people as made in the image of God. However, that doesn’t mean that people with same-sex attractions should have a constitutional right to engage in homosexual behavior. The government should not give constitutional protection to just any behavior, especially if it will infringe on other constitutionally protected rights like not being forced to violate your own conscience. For example, let’s say I really enjoy rock-climbing. If rock-climbing were as personal and important to me as homosexual behavior is to people with same-sex attractions, that still wouldn’t mean that I should have a constitutionally protected right to go rock-climbing. As a society, we could all decide that people who like to rock-climb shouldn’t be denied job opportunities and the like, but I think it goes too far to say that people who like to go rock-climbing should have a constitutional right to play basketball if it means that we have to start ripping up all football fields in order to make room for them. I think that would be unfair and it would elevate the rock-climbing enthusiast’s desire as better than the football enthusiast’s desire even though there are many more football enthusiasts than rock-climbing enthusiasts. When it comes to religious freedom, my position is that the overwhelming majority of people in this country who have religious beliefs should not have their religious freedom infringed in favor of a same-sex couples; especially when there are other ways to respect and protect people with same-sex attractions that would avoid such a consequence.

Some say that same-sex couples are akin to interracial couples and should thus be allowed to marry. I don’t think this comparison helps. Frankly, the Bible doesn’t say anything against interracial marriage. The Civil Rights movement exposed the people who were against interracial marriage for trying to read their racism into their religion. Here also, the LGBT movement does expose people who want to use Christianity to promote their fear or hatred of people with same-sex attractions. However, if the Bible did say that interracial marriage was wrong, and these same photographers refused to provide service to an interracial wedding as an expression of their religious freedom, they would have a right to do that. Loving v. Virginia put an end to miscegenation laws. It did not touch the issue that we have here. Interracial couples are not members of a protected class. As far as I’m aware, the Supreme Court has never decided whether a person can refuse to give service at an interracial wedding on religious freedom grounds. Even if it has decided such a case, the Supreme Court would have to extend that ruling to same-sex couples, which it has not.

Again, the Supreme Court either has to recognize a constitutional right to same-sex/interracial marriage or it has to grant those groups status as a protected class. It then has to decide whether religious freedom is an exception or not. The other option is for the people to vote for these issues directly. None of these things have happened and this New Mexico court is trying to make it so by taking a shortcut. Same-sex couples do not have protected status in New Mexico only people with same-sex attractions. New Mexico has rightly protected the people and not the behavior of the people. This decision goes too far.

Again, no matter how you feel about this issue, all Americans should be in favor of upholding the checks and balances as required by the constitution. The court should not be allowed to impose its opinion by fiat.

@RonH

Again with the interracial marriage/same-sex "marriage" comparison.

Race has no bearing on marriage. Gender does.

It's so tiresome to hear this over and over and over again. No matter how many times it's explained, people will not let it go.

They will not.

The court's ruling that citizens' religious liberty amounts to expression and telling and thinking, not living: People "are free to express their religious beliefs and tell Willock or anyone else what they think about same-sex relationships and same-sex ceremonies."

But would a photographer really be allowed by law to work a same-sex "wedding" and say publicly there, "This ceremony is sinful"?

Wouldn't he likely be sued for some kind of breach of contract?

Mike and Mo,

I'm not making or defending the analogy you are concerned about. Not at this time anyway.

I mentioned interracial marriage to illustrate - in a way I assumed that you would accept - that religious freedom does not trump all.

I'm glad I was right.

RonH

That is an interesting point raised by RonH; "that religious freedom does not trump all".

I'd be interested to hear as to the constitutional basis why someone has the right to services I provide. I don't think there is any.

Even with the non-discrimination laws in place, and as written, in New Mexico I wonder if the judges would have ruled differently had they understood that so called same sex marriage is sexual orientation neutral. It is hard for me to believe that if the judges had truly believed that two heterosexual women can form a so called same sex marriage relationship that is every bit as real as one between two homosexual women that they would have ruled as they did.

At least, I hope they would rule differently...

That means you can believe interracial marriage is wrong but your hotel can't refuse a hotel room to an interracial couple.

You're implied relation of race to the issue of homosexual marriage is invalid, wrong, and off-base.

ChrisA,

As you requested, here is the relationship between my rights and the services you provide.

The Civil Rights Act of 1964 says

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

So, according to the law, if you offer your services to the public, then you can't deny them to anyone for any of the listed reasons.

If, because of this law, you can't legally deny me your services, I have a right to them. Or near enough. I guess that's one reason the law has that name.

Notice that the law does this - not the Constitution. The law's relationship to the Constitution is just this: The law is Constitutional.

What do you think about that?

RonH

Hi foo,

[Your] implied relation of race to the issue of homosexual marriage is invalid, wrong, and off-base.

I responded to this.

Thanks for the information RonH. I respectfully concede your point that religion doesn't trump all and that any individual is entitled to services I provide; provided that they belong to the list of services enumerated by the Civil Rights Act under the umbrella of "public accommodations".

As it pertains to this case however I don't think that wedding photography or any type of photography falls under that category. I know this wasn't the point you were making so I don't expect you to defend it. I think it does add a nuance to the discussion as to what any individual providing services is obliged to do if the CRA is going to be invoked. Since photography doesn't involve "public accommodations" an is unnecessary for interstate travel and commerce I think the photographer in NM is exempt.

@ RonH
The issue is not that the photographers are a public accommodation. The section that you cite does not list sexual orientation or same sex couples. Thus it does not apply to them. New Mexico has added sexual orientation, but not same sex couples. The New Mexico court erroneously extends the protection to same sex couples. Protected classes have generally applied to people, not to things that people do, as is the case here. New Mexico did something unprecedented here. The other issue is that this decision clearly violates the conscience of the photographers, yet the court does legal gymnastics to claim that it does not. - See more at: http://str.typepad.com/weblog/2013/08/how-will-same-sex-marriage-hurt-you.html#comments

I am sincerely curious if she would refuse to shoot the wedding ceremony of a heterosexual couple, one of whom was previously divorced.

Also, how does providing a service = endorsing someone else's choice?

Also, if the roles were flipped, so would STR's response.

Imagine: An atheist owns an oil change shop, and it announces it will not perform oil changes for Christians.

STR's response would be? I can guess.

Furthermore, isn't the photographer hurting herself more than anyone else is hurting her? She's literally robbing herself of business. Teh gayz are not doing this to her; she is doing that to herself.

You guys are really missing the issue. Photography is an expressive art, so it is considered speech. Forcing her to take a picture is akin to forcing her to express that the image she takes should be celebrated. The constitution protects against compelled speech; at least it used to. Selling oil is not expressive, so it's unlawful to deny selling oil to Christians. Renting hotel rooms is not expressive, so you can't deny giving that to a gay couple or an interracial couple.

ChrisA,

. I respectfully concede your point that religion doesn't trump all...

Thank you! Conceding even a small point is not the same as conceding the whole argument. As someone who frequently tries to make small points that seem to need conceding I can tell you: this is apparently hard for people to see. Or, if they see it, it is still hard for them to do.

ChrisA,

Since photography doesn't involve "public accommodations" an[d] is unnecessary for interstate travel and commerce I think the photographer in NM is exempt.
But
By enacting the New Mexico Human Rights Act (NMHRA)..the [Arizona] Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA,...

If we can stop looking at this as a "left and right" issue and understand this is a right and wrong issue then we can move forward together. Remember the very author of the DOMA, Mr. Barr, recanted and apologized for his ways and was "embarrassed" by his behaviors. Further, how many "right wing" businesses were courageous enough to write an Amicus brief supporting DOMA? Zero!! But hundreds of businesses wrote Amicus Briefs Opposing DOMA. Are all of these "lefties?" I have seen more courageous "lefties" who will stand on principle and not cower for financial gain when the heat gets hot! Loving all of mankind but standing on His Word!!

RonH,

Thanks for the praise! I'm glad that you find this an admirable quality and I also understand your frustration. I don't know you personally, nor do I know how often you comment. While I can see that you're challenging STR's position in this post I'm assuming that you probably stand in opposition with some or most of what STR defends. Whether or not that assumption is correct I would admonish you to do the same as I when the truth or facts demand it.

As to the facts, it would appear that they're on your side regarding the legality of the matter in question. Since I don't have much time at the moment to research further I'll leave it to the better-prepared defenders of this topic for you to contend with. For now I'll just say that I appreciate your time as well as the info. Trust me when I say I've learned much.

Till our next interaction,
Chris

Adeniyi T.,

You guys are really missing the issue.
I almost agree. We were really missing AN issue. There was more than one issue. The public accommodation issue is very important. But so is the one you raised.

The service provided by defendant - the photographer - is not a standard product. It's not a car wash. It's not gasoline or meat and three. It's not a hotel room.

To do this job right, you put yourself into it and you have to be behind what's happening. Choosing when and how to open the shutter at an event like this expresses your opinion. It is speech. At least, that's my understanding of wedding photography. It's not just a service - to an extent, it's art.

So, I hope that such laws will begin to provide exceptions for such services.

I wouldn't exempt the company that provides the tent or the shrimp cocktail at an event like this. And I wouldn't exempt this photographer if she were doing a passport photo. But I think I would have decided this particular case the other way.

RonH

Hi RonH, good of you to throw a bone and give certain services exemption. I wonder what do you make of AdeniyiT's earlier point on the larger picture, and it's context setting to this more recent point[?]:

"The New Mexico court is free to voice their opinion that same-sex couples should have a right to be married or be recognized as a protected class. However, the job of the court is not to enforce their opinion. The job of the court is to honor the law as it stands. Accordingly, no matter where you stand on the issue, you should oppose the New Mexico court’s decision because it violates the constitutionally mandated checks and balances of the US."

Also, this pretty astute and liberty loving observation from the same post:

"Again, no matter how you feel about this issue, all Americans should be in favor of upholding the checks and balances as required by the constitution. The court should not be allowed to impose its opinion by fiat."

This latter obsrvation points to the serious trampling of the constitutional protections put in place to stop this kind of judicial activism...the preferred stategy used by social activists who cant get their views approved in any other way.

btw, lest I be charged with endorsing "majority rules", I'm not. The Constitution along with the Bill of Rights give adequate protection against abusing the minority[ies] among us as it regards to race/religion/gender...etc. Behaviors or behavioral qualities/characteristics are not among the list of protected minority [or otherwise] groups and neither should they be.

Now taking the Human Rights Act of 1964 into view, within the civil magistrate's given authority to "reward good behavior, and punish bad behavior, it would seem obvious then that the behavoir being rewarded or punished is regarding whether it is right or wrong [read good or bad] to discriminate against one's inherent human characteristics.

A Chistian would have a hard time with biblical principles justifying behavior that would be "unloving" to another of God's image bearers. Also written in the historic founding documents is this very thought..."we find these truths to be self evident....".

All mankind should be treated equal, even if by statutes and ordinances, as equals for what they are by nature.

Contrast this with a behavior being protected or not[rewarded/punished], it's not unprecedented, the US tax code has done this since its inception, but what it and other government institutions shouldn't do is equate behavior in its judgements as it does to discrimination against persons' race/religion/gender[ie human nature]. The civil magistrate if wise, will and ought to recognize good beneficial behavior and reward it, and bear the sword as needed to suppress bad behavior--this in regard to the benefit of society.

Behavior being rewarded to a particular group at the expense of trampling constitutional guarantees regarding religious conscience is not needed, the legislating body can approve rewards for promoting certain behaviors....giving breaks to businesses that serve targeted minorities. This is incentive enough, and constitutional.

If it is within the wisdom of the civil magistrate to do such [reward a certain behavior] and they enact laws that violate religious conscience, well, one ought to obey God and disobey the civil magistrate and lose the reward--that is all.

Brad,

I'm not throwing anyone a bone.

I really do think that if a guy is a caterer or if he rents out tables and chairs and tents for weddings, then he should legally have to rent to anybody - even for a gay wedding.

But, I really do think, that if he officiates at weddings, then he clearly should not have to officiate anywhere his conscience tells him not to.

And, I really do think, that if he takes wedding pictures, then he should also be free to refuse a gay couple. It took me a few minutes thinking to decide this. I had to think about what the job must be like and I had to overcome some reluctance stemming from loyalty. But that's what I think.

persons' race/religion/gender[ie human nature]
Do you really think one's religion (or lack thereof) is part of one's nature - like race or gender?

Is one born Christian, for example?

RonH


The interracial marriage SSM analogy is incredibly weak, as I point out in my 2010 article in Public Discourse. You can get it online by clicking my name.

Hi RonH, when I think about it, I'm not immediately sure what I think is the reason religion is grouped with obvious born that way characteristics. It seems that those who've gone before and been put in place to lead wisely, laying groundwork for future generations by providing protection against discrimination based on race/gender etc.., have also included religion and so I haven't really put a lot of thought into it, more just accepted it but it's something to consider to see if it's got substantial justification.

While [at this time], I think religion has a deeper connection to ones being than mere behavior, I wouldn't go so far as to equate it to nature. In some respects, it is so[part of nature] as the prophet Jeremiah illuminates:

"Jer 13:23 If you say in your heart, of the magnitu'Why have these things happened to me?' Because de of your iniquity Your skirts have been removed And your heels have been exposed.

Jer 13:23 "Can the Ethiopian change his skin Or the leopard his spots? Then you also can do good Who are accustomed to doing evil.

Jer 13:24 "Therefore I will scatter them like drifting straw To the desert wind.

Jer 13:25 "This is your lot, the portion measured to you From Me," declares the LORD, "Because you have forgotten Me And trusted in falsehood."

Maybe there is more to it, but this is my answer to your warranted question.

But now, back to my question, what do you make of AdeniyiT's point. In a government for the people and by the people, it isn't good to allow abuse of power to go unchecked...especially when there are protections in place. This isn't a concept that is hard to grasp, and the precedent is a threat to human liberty such that which ever side of the gay equality movement one is on, they should rigidly oppose this threat to liberty for the sake of maintaining their own freedom of liberty and freedom of conscience from government mandate/statute against this human right.

Not checking liberty threatening precedent leads to a slippery slope as it progresses, to an end point where no one has protection if we dont correct it immediately even when the outcome in view is favorable to our worldview, because what will you do without freedom?

Brad B,

You might be interested in The Right to Be Wrong: Ending the Culture War Over Religion in America by Kevin Seamus Hasson.

Religious diversity is thus a fact of life. It is neither good nor bad in itself. It can't be outlawed and needn't be glorified. It simply is. The question isn't how to maximize diversity, nor how to minimize it. The question is how to live authentically in the midst of it, while allowing others to do the same. That is, how to seek, express and embrace authentically what we are convinced is the true and the good, while allowing others to seek, express and embrace authentically what we are convinced is the mistaken and inadequate.

-Pluralism without Relativism

A large part of the answer, which the good people of Plymouth missed, is respect for conscience. We can, and should, respect others' duty to follow their consciences even as we insist that they're mistaken. Why? Because others have the same duty to follow their presumably mistaken consciences as we do to follow our presumably correct ones. Wouldn't that make us all relativists? No. Respect for conscience makes sense of clashing truth claims without denying them or relativizing them. It's not that there is no truth, as the deconstructionists would have it, or that everything is somehow true for somebody, as the greeting-card writers would. It's that people make mistakes about what the truth is, yet still have to obey their consciences nonetheless. obey their consciences nonetheless. So we can respect their duty to follow their consciences and embrace a particular faith — and at the very same time be utterly convinced that the faith they're embracing is absolute drivel.

The founders might have saved paper by amending the Constitution to recognize a 'right to be wrong' - thus covering speech and religion at the same time. They might also have protected that right from the individual states - instead of just Congress. But that is another story.

As far as race and gender go - they didn't protect us there at all. Did they? I know the Declaration says 'all men...'. But they didn't mean it, did they? Otherwise they'd have done it when it came time to write the Constitution, wouldn't they. I mean: They'd declared equal all men and all women of all colors.

Please put your view of AdeniyiT's point and your question about it more explicitly. I want to avoid answering the wrong question and to do that I need to know what you mean to ask.

RonH

Hi RonH, I previewed the book, it looks like an interesting read, I didn't see anything in the portions I viewed that I'd disagree with and admit to being a reformed "pilgrim" as the author described them. I'd like to read it, but didn't order it just now-maybe in the near future.

Civil authority is rooted in a higher authority that all religions cannot account for in their worldview, Chrisitan doctrine should promote "the right to be wrong" in the cultural arena and allow for free religious expression and tolerance[in the truest sense of the word, not the modern sense that means agree with]. It can be found in the Noahic covenant promise primarily, and in other supporting principles in scripture also.

As far as the founding documents, I agree with you that the practice didn't follow the words, but I think that however incapable they were of submitting to their own words, the logical progression of common law thought necessitated this language that did set the foundation for its truest expression in recognition that all men were created equal, [as again Christian thought and doctrine alone justifies]. History documents the inequality, but also the remedy in the documents-documents that even the writers were underestimating its reach--for whatever reason. This developement of the doctrine laid out in the Declaration of Independence, the Constitution and the Bill of Rights, naturally had to occur over time as the people had to deal rationally with the intent of documents.

Lastly, I kinda see why you ask for clafification of the point since there is an obvious part of AdeniyiT's post--that is the NM court has taken the liberty to rule where no law compels the court to rule the way they did...enact by fiat[it is so]. This is the point I was asking for your opinion on, the fact that courts can or try to tyranically rule without the due process. The more subtle point is whether the courts/judges are free to interpret the foundational documents anew rather than in light of intent. Stare decisis has its place I guess.

fyi, Here's J.Gresham Machen a Princeton theologian that went on to found Westminster Theological Seminary and the OPC. I read this in an article I've been working through found here

"You cannot expect from a true Christian church any official pronouncements upon the political or social questions of the day, and you cannot expect cooperation with the state in anything involving the use of force...The function of the church in its corporate capacity is of an entirely different kind. Its weapons against evil are spiritual, not carnal; and by becoming a political lobby, through the advocacy of political measures whether good or bad, the church is turning aside from its proper mission, which is to bring to bear upon human hearts the solemn and imperious, yet also sweet and gracious appeal of the gospel of Christ."

@ RonH

I appreciate that you are willing to be open minded about this issue. I really hope that if the country as a whole decides to legalize same-sex marriage, it can nonetheless strike the type of balance that you suggest, rather than what the New Mexico court did. Allowances need to be made for public services that are intertwined with free speech and religious expression.

The comments to this entry are closed.