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bob000555

A ridiculous legal argument from the Catholic Church

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http://site.adw.org/pdfs/10SSM_BOEE_RelLib_0205.pdf

 

The Roman Catholic Archdiocese of Washington is arguing that DC's new Religious Freedom and Civil Marriage Equality Amendment Act violates Catholics' religious liberty. The paper starts out with the Archdiocese opining that their religious liberties are being taken away but not saying exactly how. At first, I thought the law might have forced ministers to officiate gay marriages. But of course this is not the case. The Archdioceses' complaint is that

 

A Catholic caterer, for example, should not have to condone a same-sex union by catering the wedding or a marriage counselor should not be required to provide counseling to a same-sex couple if it violates his religious beliefs. Indeed, D.C.’s Human Rights Act, so often cited in support of same-sex marriage, prohibits discrimination on the basis of religion just as strictly as it prohibits discrimination on the basis of sexual orientation.

 

The Religious Freedom and Civil Marriage Equality Amendment Act creates no penalties for discriminating against a gay couple. (the full text of the act is available here: http://www.dccouncil.washington.dc.us/images/00001/20091008141223.pdf) If there are any penalties, they would derive from the Human Rights Act. So, lets make their argument clear: they're arguing that the they could be penalized under the Human Rights Act if they discriminate against a gay couple, and that therefore, the Religious Freedom and Civil Marriage Equality Amendment Act violates their religious freedoms. Holy nonsequiter, batman!

 

If Catholics honestly believe their religious freedoms are being violated, there is a legally recognized way to litigate this. If one of these supposedly persecuted caterers were to face penalties under the Human Rights Act, they would be entitled to the affirmative defense that the HRA is unconstitutional as applied to him/her. Arguing that the Religious Freedom and Civil Marriage Equality Amendment Act violates religious freedoms makes absolutely no sense either from a procedural or a constitutional prospective.

 

Lets set aside the fact that their argument runs askew of very basic legal procedure, and look at their underlying argument, which appears to be "If a group's religious beliefs include discriminating against some group, then a law that protects that group from discrimination violates the group's religious freedoms." If the Court were to set that precedent, then under the principle of stare decisis they would be bound to enforce it in future cases, with some pretty ridiculous consequences: Wahabists could bring suit arguing that their religion requires discrimination against women and that laws forbidding sex based discrimination violate their religious freedom. Perhaps most ironically, fundamentalist Muslims could make the case that there has been an active jihad against the Catholic Church since the crusades and that any law which prevents them from discriminating against Catholics (perhaps including murder laws) violates Muslims' religious liberties.

 

There are some more fundamental problems with the Archdioceses' argument, but I don't want to appear pedantic.

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Bob - first off let me make clear I am not catholic, I am a firm believer in the right to same sex union, and I think the catholic church's position on same sex unions is obnoxious; however ...

 

the changing of a civil process - from license (do you have those in USA) to decree nisi (that's end part of a divorce) - that requires the input and action of numerous state employees who may all have individual religious beliefs that may be in conflict with that change on law does require a balancing of competing rights. almost every HR decision requires a balancing act and a degree of proportionality in the decision making process - the ECHR only holds two rights as absolute and non-derogable and the US disagrees with both of those! The fact that any decent calculus will come down on the side of same sex unions does not mean that no debate should be had - or that any argument is rendered spurious

 

I do not profess to know the niceties of DC law-making - but the use of HR as a passepartout for legislation/regulation that would not survive the usual process is dangerous and threatens the integrity and public face of the HR discourse. If the usual practice for this form of change of law should be a plebiscite then any change from the norm must be justified - the rest of the world envies the checks and balances within US constitutions and the enshrined separation of powers.

 

my reading of the act suggests to me that it only protects religious organisations who do not offer services to the public - and that any other entity would be open to suit under anti-discrimination legislation. your argument on precedent is interesting but not compelling - courts find it very easy to distinguish cases and a change in statute would always require a renewed thinking about a line of precedent, courts will always view the granting of new rights as a different kettle of fish to the maintaining of present rights, and finally the courts tend to see requiring a citizen to do X as much more onerous as forbidding a citizen to do Y.

 

we do not have referenda in the UK (maybe one every 20 years or so) so the same sex union (civil partnerships) legislation was passed through parliament and signed into law without problems. one of the stumbling blocks that has been discovered is that the large adoption agencies that were run by rightwing christian organisations (and from all neutral accounts did a very good job) were put on the horns of a dilemma; work with gay couples (forbidden by their bosses) don' work with gay couples (illegal) - they closed down en mass. now I will cry no tears over the removal of a religious organisation from the running of civil society - but no one has been able to step into their place.

 

the archdiocese's argument is wrong perhaps, and possibly immoral - but invalid, I think not

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I'm a Christian, and this reminds me of the wailing by [other] Christians about legalized abortions supposedly violating physicians so-called "Conscience Clause". Nowhere in the law does it force physicians to perform abortions, and that includes training to perform abortions. Do you really want a physician performing any operation that s/he find morally repugnant and/or has refused to train for? I certainly don't.

 

So, nowhere is anyone forced to cater gay weddings or counsel gays couples, just as churches are not forced to perform gay marriages. Other caterers and counselors may accept these clients, and in doing so may make more money than Catholic ones, but Catholics aren't forced to do this work. No person in any profession can be forced to do work that they find morally repugnant.

 

The only fact coming out of this is that people with strong moral consciences have the right for their moral conscience to override (to some extent) the laws of the land. We have conscientious objectors who can decline military conscription, Native Indians who can use controlled substances because their religion requires it, potential jurors are dropped from jury pools (for example, if they could never find someone guilty of a crime that could result in the death penalty), Amish don't pay into the government's social security system (although they must have their own provisions), etc.

 

Another cause of rejection that I've run into is so-called lack of skill. I went to a barber one day (who happened to be black), and he refused to cut my hair because, as he told me, he "can't cut straight hair". Was his claim true, or was it merely a convenient way to maintain a bigoted attitude? Could I actually force him to cut my hair? Would I really want to?

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imatfaa - Law making by referendum is not the norm in DC, or anywhere else that I am aware of. The system of checks and balances was not endangered, nor the calculus of policy making. Your confusion may be coming from the Church's rather convoluted recitation of the facts, so I'll summarize for you:

 

The DC recognizes two methods of lawmaking: the normal legislative process where a law is voted on by the City Council and approved by the Mayor, and the referendum/initiative process. (There are some additional complexities in the law making process due to DC's status as a federal city and the involvement of the United States Congress, but those complexities are not relevant here, at least not yet.) Almost every law is made by the first process, and this law was no exception.

 

The DC City Council heard and considered testimony from the Catholic Church and other religious organizations. The Catholic Church didn't like the outcome of the normal process so they tried to initiate the extraordinary process of referendum/initiative. They "filed two petitions with the District of Columbia Board of Elections and Ethics: first for a ballot initiative to affirmatively define marriage as between a man and a woman, and then for a referendum to overturn enactment of the same-sex marriage bill."

 

There was only one problem with this: its not a valid exercise of the referendum/initiative process. The process, like any process is subject to certain rules, and one of those rules says that once the Council has acted to create an anti-discrimination law, that law is not subject to recall by the referendum process. There is a very important historical reason for this rule: during the civil rights era, the Council passed several important laws regrading racial discrimination and the populace reacted by trying to repeal those laws via initiative. The council recognized a tradition that goes back to the Founding Fathers of fearing "rule by the mob" and of protecting the rights of the minority against the whims of the majority. They, therefore, amended the section of the City Charter that deals with referendums to protect anti-discrimination laws from repeal by initiative.

 

In this case, the Church introduced a referendum and an initiative , and the Board of Elections and Ethics properly ruled that both were subject to the anti-discrimination rule and could not go forward. The Church appealed both decisions to the Superior Court of the District of Columbia, which has already ruled that the Board acted properly in denying the initiative. Now, in the case regarding the referendum, the Church is raising an argument that makes a mockery of civil procedure, constitutional law, and logic.

Edited by bob000555

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I'm a Christian, and this reminds me of the wailing by [other] Christians about legalized abortions supposedly violating physicians so-called "Conscience Clause". Nowhere in the law does it force physicians to perform abortions, and that includes training to perform abortions. Do you really want a physician performing any operation that s/he find morally repugnant and/or has refused to train for? I certainly don't.

 

So, nowhere is anyone forced to cater gay weddings or counsel gays couples, just as churches are not forced to perform gay marriages. Other caterers and counselors may accept these clients, and in doing so may make more money than Catholic ones, but Catholics aren't forced to do this work. No person in any profession can be forced to do work that they find morally repugnant.

 

ewmon - in the uk a commercial enterprise can be sued for refusing to allow a gay couple the same rights as a hetrosexual couple . that act does not protect non-religious entities - I do not have the time to go through US anti-discrimination law to check whether there are avenues that would allow a gay couple to make a claim.

 

furthermore - government/local authority officials have been removed from their position for refusing to act within their duties on the civil side of marriage when a gay couple was involved. personally I agree with the courts in both these decisions - but to say that "nowhere is anyone forced" is incorrect; perhaps you could confirm that nowhere in the USA, in DC etc are/is correct

 

Bob, I ended up reading the DB Board of Elections and Ethics guide and some of the codes behind it and I think you are sound in your judgment - I was quite interested to read the memorandum of opinion that the board produced (I have other things to be doing, but now I want to see this through) http://www.washingtoncitypaper.com/blogs/citydesk/files/2009/06/0615boee.pdf I will have to read up on the appeals (like a dog with a bone that it cannot put down).

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perhaps you could confirm that nowhere in the USA can [a commercial enterprise be sued for refusing to allow a gay couple the same rights as a hetrosexual couple]

Someone needs to show that they can be sued.

 

Do gays really want caterers grimacing and shaking their heads in disgust at their reception? Do gays really want to be told that their entire relationship is naturally repugnant instead of trying to resolve the complaint by one of them that he's always on the bottom* ?

 

* A gay neighbor complained to me that he was "always on the bottom".

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Someone needs to show that they can be sued.

So your comment starting "So, nowhere is anyone forced..." was unfounded - cos it is definitely false in the UK where suits in law and job loses have resulted, and you don't seem to want/to be able to show that this is not the case in the USA.

 

Do gays really want caterers grimacing and shaking their heads in disgust at their reception? Do gays really want to be told that their entire relationship is naturally repugnant instead of trying to resolve the complaint by one of them that he's always on the bottom* ?

 

* A gay neighbor complained to me that he was "always on the bottom".

not sure what to make of this at all.

 

A simple question - if you run a uniquely situated and beautiful guesthouse in the United State (ie without a nearby suitable alternative) can you refuse without fear of penalty to rent a double room to a self-professed gay couple based your own (admittedly weird) moral grounds ?

 

A second simple question - if you are the US equivalent of a registrar of marriages (a civil clerk who performs the legal/non-religious parts) can you refuse to officiate in a purely secular ceremony for same sex union on religious grounds and be safe in your job?

 

if either of these questions can or should be answered "no" - then there must be an argument of competing and balancing rights. Personally I feel the balance has been correctly weighed in the UK where both of the questions have to some extent been answered with a "no".

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ewmon - in the uk a commercial enterprise can be sued for refusing to allow a gay couple the same rights as a hetrosexual couple . that act does not protect non-religious entities - I do not have the time to go through US anti-discrimination law to check whether there are avenues that would allow a gay couple to make a claim.

You're going in circles. I said in the original post that the full text of the Religious Freedom and Civil Marriage Equality Amendment Act is available here http://www.dccouncil.washington.dc.us/images/00001/20091008141223.pdf, and that the Act does absolutely nothing to subject anyone to any penalties for discriminating against a gay couple. Whether or not there are other laws subject those who want to discriminate against gays to any penalties is absolutely irrelevant. In the US you can not challenge a given law on the grounds that some other law violates your rights. If there is some law that says people cannot discriminate against gay couples, the Church can raise this argument to challenge that law, but challenging a law that simply allows gays to marry on the grounds that the Church is using to challenge it makes absolutely no sense from a Civil-Procedure prospective, from a constitutional-law prospective or from a logical prospective.

 

furthermore - government/local authority officials have been removed from their position for refusing to act within their duties on the civil side of marriage when a gay couple was involved. personally I agree with the courts in both these decisions - but to say that "nowhere is anyone forced" is incorrect; perhaps you could confirm that nowhere in the USA, in DC etc are/is correct

I have already explained the process of an "as applied challenge." If anyone is subject to penalties for discriminating against a gay couple despite his religious beliefs, he can claim in Court that the law that subjects him to penalties is unconstitutional as applied to him because it violates his religious liberties under the First Amendment to the Constitution.

 

In addition, ewmon was quite right in stating that its up to the Church to prove that the Religious Freedom and Civil Marriage Equality Amendment Act does something to harm their rights. They are the plaintiffs here and as such the burden of proof is on them. Overturning an administrative decision in Court in the US requires the plaintiff to prove that the administrative decision was "arbitrary and capricious"; you've already said that you read the Board of Elections and Ethics decision and found it to be reasonable.

Edited by bob000555

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In addition, ewmon was quite right in stating that its up to the Church to prove that the Religious Freedom and Civil Marriage Equality Amendment Act does something to harm their rights. They are the plaintiffs here and as such the burden of proof is on them. Overturning an administrative decision in Court in the US requires the plaintiff to prove that the administrative decision was "arbitrary and capricious"; you've already said that you read the Board of Elections and Ethics decision and found it to be reasonable.

 

I agree with bob000555. He is a genius.

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