Tag Archives: Gay Marriage

News

The Economist: SB 1062 was a reasonable protection of religious liberty

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Here’s a case for tolerance of religious liberty from a gay writer in the Economist.

Excerpt: (links removed)

Doing that seems to me to have been point of laws like Arizona’s strangely controversial SB 1062, which was vetoed last week by Jan Brewer, Arizona’s governor. Douglas Laycock, a professor of law at the University of Virginia, recently noted that the thrust of the bill was simply to refine existing state and federal religious-freedom protections. “These laws”, Mr Laycock writes, “enact a uniform standard—substantial burden and compelling interest—to be interpreted and applied to individual cases by courts. They rest on the sound premise that we should not punish people for practicing their religion unless we have a very good reason”. The point of SB 1062 in particular was to clarify “that people are covered when state or local government requires them to violate their religion in the conduct of their business, and that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.” Mr Laycock goes on to emphasise, and this is very important:

But nothing in the amendment would have said who wins in either of these cases. SB1062 did not say that businesses can discriminate for religious reasons. It said that business people could assert a claim or defense under RFRA, … that they would have to prove a substantial burden on a sincere religious practice, that the government or the person suing them would then have the burden of proof on compelling government interest, and that the state courts in Arizona would make the final decision.

It is incorrect to claim, as my colleague did last week, that SB 1062 was “in effect, an exemption from anti-discrimination laws for the pious”. It was not. It was an attempt to calibrate the law so that worthy new legal rights don’t infringe on worthy old ones. If forcing conservative Christian photographers to shoot gay weddings can be shown to promote a “compelling interest” of the state, and if the photographer fails to show that doing so would place a “substantial burden” on her sincere religious beliefs, then refusing to work a gay weddings would remain a violation of existing anti-discrimination law. That seems reasonable to me. As Mr Laycock says, “we should not punish people for practicing their religion unless we have a very good reason”. When we do have a very good reason, we can go right ahead.

It’s important to understand that many gay people are either 1) not in favor of gay marriage or 2) not in favor of forcing Christians to affirm gay marriage. The Economist is a socially liberal, fiscally moderate publication. So I am especially glad to see an article defending religious liberty and tolerance of Christians here. Of all places. I think a lot of people are going to read that and realize that it’s worse to take away the religious liberty of Christians to not participate in activities they oppose, than for gay couples to simple go next door and get the product or service they want.

I also think that this article goes to show you how reasonable SB 1062 was as legislation.

Commentary

Ryan T. Anderson: what is marriage? why does it matter?

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About the speaker:

Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory.

Anderson, who joined the leading Washington think tank’s DeVos Center for Religion and Civil Society in 2012, also is the editor of Public Discourse, the online journal of the Witherspoon Institute of Princeton, N.J.

Anderson’s recent work at Heritage focuses on the constitutional questions surrounding same-sex “marriage.” He is the co-author with Princeton’s Robert P. George and Sherif Girgis of the acclaimed book “What Is Marriage? Man and Woman: A Defense” (Encounter Books, December 2012).

The lecture starts at 7:20 in. The lecture ends at 49:35. There are 32 minutes of Q&A.

Introduction:

  • When talking about marriage in public, we should talk about philosophy, sociology and public policy
  • Gay marriage proponents need to be pressed to define what marriage is, on their view
  • Every definition of marriage is going to include some relationships, and exclude others
  • It’s meaningless to portray one side as nice and the other mean
  • Typically, marriage redefiners view marriage as a more intense emotional relationship
  • Marriage redefiners should be challenged in three ways:
  • 1) Does the redefined version of marriage have a public policy reason to prefer only two people?
  • 2) Does the redefined version of marriage have a reason to prefer permanence?
  • 3) Does the redefined version of marriage have a reason to prefer sexual exclusivity?
  • Also, if marriage is just about romance, then why is the state getting involved in recognizing it?
  • The talk: 1) What marriage is, 2) Why marriage matters, 3) What are the consequences of redefining marriage?

What marriage is:

  • Marriage unites spouses – hearts, minds and bodies
  • Marriage unites spouses to perform a good: creating a human being and raising that human being
  • Marriage is a commitment: permanent and exclusive
  • Male and female natures are distinct and complementary

The public purpose of marriage:

  • to attach men and women to each other
  • to attach mothers and fathers to their children
  • there is no such thing as parenting, there is only mothering and fathering
  • the evidence shows that children benefit from mothering and fathering
  • boys who grow up without fathers are more likely to commit crimes
  • girls who grow up without fathers are more likely to have sex earlier
  • Children benefit from having a mother and a father
  • can’t say that fathers are essential for children if we support gay marriage, which makes fathers optional
  • without marriage: child poverty increases, crime increases, social mobility decreases, welfare spending increases
  • when government encourages marriage, then government has less do to – stays smaller, spends less
  • if we promote marriage as an idea, we are not excluding gay relationships or even partner benefits
  • finally, gay marriage has shown itself to be hostile to religious liberty

Consequences redefining marriage:

  • it undermines the norm in public like that kids deserve a mom and a dad – moms and dads are interchangeable
  • it changes the institution of marriage away from the needs of children, and towards the needs of adults
  • it undermines the norm of permanence
  • we learned what happens when marriage is redefined before: with no-fault divorce
  • no-fault divorce: after this became law, divorce rates doubled – the law changed society
  • gay marriage would teach society that mothers and fathers are optional when raising children
  • if marriage is what people with intense feelings do, then how can you rationally limit marriage to only two people?
  • if marriage is what people with intense feelings do, then if other people cause intense feelings, there’s no fidelity
  • if marriage is what people with intense feelings do, then if the feelings go away, there is no permanence
  • the public policy consequences to undermining the norms of exclusivity and permanence = fatherless children and fragmented families
  • a final consequences is the decline and elimination of religious liberty – e.g. – adoption agencies closing, businesses being sued

We’re doing very well on abortion, but we need to get better at knowing how to discuss marriage. If you’re looking for something short to read, click here. If you want to read a long paper that his book is based on.

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News

All the Arizone SB 1062 bill did was allow religious liberty to be raised as a defense

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The Weekly Standard posted a letter by a group of law professors from various universities, including Harvard and Stanford, to explain what the Arizona religious liberty bill did. It turns out that all the Arizona bill did was specify how religious liberty protections apply within the state, using a federal standard that was already passed nearly unanimously by Congress during the presidency of Bill Clinton.

Here’s what the professors said about the Arizona bill:

The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.

That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990. There have been relatively few cases; if you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona. Few people had heard of the federal RFRA before the current litigation over contraception and the Affordable Care Act.

SB1062 would amend the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.

So basically, businesses have the same religious liberty right as individuals AND individuals can use religious liberty as a defense in a civil suit. That’s it. No one is being licensed to discriminate indiscriminately. The bill did not say that the defense could be used in every case, it just said that religious liberty could be used by businesses as a defense (more likely to be accepted by small businesses), and that religious liberty could be used as a defense in civil suits. Whether the defense would be effective would still be decided by the courts.

Even the libertarian Cato Institute‘s Ilya Shapiro, who favors gay marriage, thought the bill was FINE:

Even though I’m for marriage equality – next week I’ll be filing a brief supporting the challenge to the marriage laws of Oklahoma and Utah in the U.S. Court of Appeals for the Tenth Circuit – I have no problem with Arizona’s SB 1062.

SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category).

The prototypical scenario that SB 1062 is meant to prevent is the case of the New Mexicowedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse to provide services to gay clients, but felt that she couldn’t participate in the celebration of a gay wedding. There’s also the Oregon bakerythat closed rather than having to provide wedding cakes for same-sex ceremonies. Why should these people be forced to engage in activity that violates their religious beliefs?

That’s a libertarian speaking, there, and they are not social conservatives.

An article tweeted by Ryan T. Anderson from The Federalist asserts that the real lesson of the loss for religious liberty in Arizona is how easily the Republican Party will capitulate to pressure even when the truth is on their side. They just don’t care about religious liberty enough to defend it.