Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
 

PFAW

PFAW Foundation Rallies at the Supreme Court for #LoveWins

Paul said it best, "Wow."

It was certainly a "Wow" moment as People For the American Way Foundation stood outside the Supreme Court to watch marriage equality become the law of the land.

People For the American Way Foundation at the Supreme Court for Love Wins

Though there were clouds aplenty, the crowd was strong.

Crowd at the Supreme Court for Love Wins

And spirits were high.

Spirits High as Love Wins at the Supreme Court

Spirits High as Love Wins at the Supreme Court

Marriage equality is now.

But the fight for justice is not over.

People For the American Way Foundation Fights for Justice for All

People For the American Way Foundation will keep fighting every day for justice for all.

PFAW Foundation

What Are Anti Marriage Equality Forces Really Demanding?

This article originally appeared on TowleRoad.

Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolutionand civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.

Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolution and civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.

One recent salvo in this rhetorical campaign was a full page ad in the June 10 Washington Post in the form of an open letter to the Supreme Court. The headline read, “We ask you not to force us to choose between the state and the Laws of God.”

“We are Christians who love America and respect the rule of law,” the ad said, “However, we will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”

Similar statements can be found in the“Pledge in Solidarity to Defend Marriage”put together by the same people behind thePost ad. And it’s not much different from language in the Manhattan Declaration, a 2009 manifesto written by former National Organization for Marriage chairman Robert George (right) and signed by an array of conservative religious leaders. The Declaration declares that its signers will not “bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”

The Post ad suggested that a pro-equality ruling would “unleash religious persecution and discrimination against people of faith,” a statement that ignores the many people of faith who do support full equality for LGBT people. The ad was signed by a bunch of far-right anti-gay activists. Here’s just a sampling:

Let’s put aside all the preening about Religious Right leaders’ willingness to endure prison and martyrdom and consider what they’re really after.

First, we can dispense with the notion that they’re just looking for a “live and let live” world in which “Gays and lesbians have a right to live as they choose; they don’t have the right to redefine marriage for all of us.” In fact, religious conservatives have opposed every advance in cultural acceptance and legal recognition of the equal rights and dignity of LGBT people, including efforts to protect us in laws targeting violent hate crimes, allow us to serve openly in the military, and prevent us from being discriminated against in the workplace.

Robert George, co-author of the Manhattan Declaration and a founder of the National Organization for Marriage, wrote the legal brief filed by Focus on the Family and the Family Research Council in the Lawrence v Texas case, defending state laws that made gay people de facto criminals. NOM’s current chairman John Eastman said just this month that he hopes Uganda quickly puts its notorious anti-gay law back into force, a law that included penalties of life in prison for repeat offenders. Other right-wing religious leaders have traveled the globe, from South America to the Caribbean, from Uganda to Russia, Eastern Europe to Central Asia, to support laws that make gay people into criminals for living as they choose, sometimes even for advocating on behalf of LGBT people.

Back here in the U.S., conservative evangelical leaders and their allies at the U.S. Conference of Catholic Bishops falsely portray LGBT equality and religious liberty as fundamentally incompatible, a zero-sum game. That’s their justification for opposing civil unions as well as marriage equality – even for opposing laws to protect people from being fired just for being gay.

The reality is that religious liberty has continued to flourish, and our religious landscape has grown more diverse, in the decades thatpublic attitudes toward gay people have shifted dramatically toward equality. There has been no effort to require clergy to marry mixed faith couples if their faith prohibits it, and nobody wants to force any church or priest to marry or give their religious blessing to same-sex couples.

Next, let’s consider whether all this line-in-the-sand drawing is really about the supposed need for clergy, organizations, and business owners to enforce their religious beliefs about marriage in the public arena. The Catholic Church does not give its religious blessing to marriages involving people who have previously been married and divorced, unless the previous marriage is religiously “annulled.” But Catholic organizations are not loudly advocating for the right of a Catholic business owner to treat opposite-sex couples differently based on whether or not their marriages have the church’s blessing.

Similarly, many evangelical leaders say marriage is meant to be between one man and one woman “for life.” Yet in spite of the biblical passage in which Jesus says that a man who divorces his wife, for any reason other than sexual immorality, and marries another woman is committing adultery, there is no clamor from Religious Right leaders celebrating discrimination against people in second and third marriages.

It is clear that a different standard is being applied to same-sex couples. But anti-gay prejudice — animus is the legal term – is not an acceptable basis for discrimination, even if it is grounded in religious belief.

Now, there’s a reason Religious Right leaders are trying to make the conversation around marriage be about the grandmotherly florist who was fined when she declined to provide flowers for a gay couple’s wedding, or the conversation about contraception about the Little Sisters of the Poor, who say they don’t want to facilitate abortion. It’s an effort associate the Right’s agenda with a “live and let live” ideal that is appealing to many Americans, regardless of religion or politics.

But here’s the problem: Once you establish the principle – as Supreme Court conservatives did in their Hobby Lobby decision last year – that business owners as well as individuals and organizations should be able to ignore laws that somehow offend their religious beliefs, you have to figure out how far people will be allowed to run with it. It is not yet clear where the justices will draw the line.

That kind of line-drawing is often challenging when dealing with questions about how the government can accommodate religion without government impermissibly favoring it. Religious denominations and houses of worship have the greatest level of protection against government interference; courts and legislatures wrestle with the status of religiously affiliated nonprofits. Until Hobby Lobby, the Court had never ruled that a for-profit corporation could “exercise religion” in a way that is protected by the Religious Freedom Restoration Act, but now that door has been opened, it is not clear what kinds of anti-LGBT discrimination it could permit.

Anti-equality religious and political leaders have made it clear that they will continue to oppose marriage equality even in the face of a Supreme Court ruling striking down state marriage bans. Some are calling for massive resistance and urging state leaders to refuse to comply with a pro-equality Supreme Court ruling. Professors Douglas NeJaime and Reva B. Siegel have argued in the Yale Law Journal that in such a situation, in which there is a well-organized movement dedicated to pushing the religious exemption further and further, an accommodation may actually be more likely to extend the culture war conflict than resolve it.

It is worth addressing generally fair-minded people who don’t understand why the gay rights movement won’t just be happy with a marriage win and let a few people with religious objections “opt out.” Some people may think it’s no big deal for gay couples to find another florist or baker. For one thing, that approach discounts the humiliation of being turned away from a business, a violation of human dignity that was a motivating force behind laws banning racial discrimination in public accommodation. And it may not be such a small obstacle in smaller, conservative, religiously homogenous communities, where discrimination may flourish if it is invited by law and encouraged by local religious leaders.

Consider the anti-abortion movement as a cautionary tale.

Shortly after the Supreme Court’s ruling in Roe v Wade, laws were passed to allow doctors who had religious objections to performing abortions to refuse to do so without experiencing negative professional consequences. There has been little opposition to such laws. But over the past few decades, at the urging of anti-abortion activists, the scope of that kind of religious exemption has been expanded wildly to include people ever-further removed from the actual abortion procedure, and expanded to include even marginal participation in the provision of contraception. In emergency situations these accommodation could come at high cost, including the life of a patient.

Exemptions have been extended to or claimed by nurses who don’t want to provide care to women after an abortion, pharmacists who don’t want to dispense a morning-after pill prescribed by a woman’s doctor, even a bus driver who refused to take a woman to a Planned Parenthood facility because he said he suspected she was going for an abortion.

NeJaime and Siegel describe these as “complicity-based conscience claims” – claims that are about refusing to do anything that might make one complicit in any way with another person’s behavior that one deems sinful. They note that the concept of complicity has been extended to allow health care providers not to even inform patients that some potential care or information has been withheld from them based on the religious beliefs of an individual or the policies of an institution.

The resistance to complying with the requirement under the Affordable Care Act that insurance plans cover contraception takes the notion of complicity to almost surreal lengths.  Just days after theHobby Lobby decision, the Court’s conservatives sided provisionally with religious conservatives who are arguing that it is a burden on their religious freedom even to inform the government that they are refusing to provide contraceptive coverage, because that would trigger the process by which the coverage would be provided by others. Cases revolving around the simple act of informing the government of an objection are working their way back toward the Supreme Court.

Similarly, some advocates for broad religious exemptions argue that organizations taking taxpayer dollars to provide social services to victims of human trafficking or women who have been victims of rape as a weapon of war should be able to ignore government rules about providing those women with access to the full range of health care they may need. Some groups are saying it would violate their religious freedom even to notify the government when they refuse to provide information or care – such as emergency contraception for teens that have been sexually abused by their traffickers.  But keep the public dollars flowing our way!

Given what we know about the intensity of the anti-gay movement’s opposition to marriage equality, it is not hard to imagine how far that movement could run with the principle that religious beliefs about “traditional” marriage are a legitimate basis for discriminating against same-sex couples. They themselves have claimed as a model the (dismayingly successful) 40-year campaign since Roe v Wade to restrict women’s access to reproductive health care. In the words of the Heritage Foundation’s Ryan Anderson, “Everything the pro-life movement did needs to happen again, but on this new frontier of marriage.”

Where will a similarly aggressive campaign against marriage equality lead? There is a new law in North Carolina allowing magistrates to refuse to marry same-sex couples. A new law in Michigan allows adoption agencies functioning with government money to refuse to place children with same-sex couples.

Will corporations be allowed to refuse to hire someone married to a same-sex spouse based on the beliefs of the people who run the company? Will Catholic hospitals, which play an increasingly significant role in our health care system, be able to refuse to recognize same-sex spouses in medical emergencies?

The progress that LGBT people have made toward full equality has been remarkable. In my lifetime, the federal government had a formal policy to fire “sex perverts” and prevent them from getting federal jobs. In my lifetime, state laws criminalizing same-sex relationships were used to fire people from government jobs and even take parents’ children away from them. Even today, in a majority of the states, gay and lesbian people have no protection against being fired for who they are – or who they marry, even if the Supreme Court makes it illegal to keep those weddings from taking place.  In all too many places, a company could fire an employee who marries a same-sex partner, the way Catholic schools across the country have been doing.

The good news is that Americans are increasingly opposed to anti-gay discrimination. Most of the laws that were proposed this year tolegalize anti-gay discrimination on the basis of religious belief failed – often thanks to the pro-equality voices of business and religious leaders as well as the hard work of LGBT people and their friends and families and our advocacy organizations.

Most informed observers think the Supreme Court will rule in favor of marriage equality. If that’s what happens, it will be a historic victory and cause for celebration. But as the signers of the recent WashingtonPost ad have made clear, it will not be the end of the struggle.

PFAW

North Carolina Pastor Speaks Out About Discriminatory 'Religious Freedom' Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.

PFAW

Rebuffed by Republican Legislators, Bobby Jindal Issues Executive Order on 'Religious Liberty'

In a Republican presidential field crowded with far-right candidates, Louisiana Gov. Bobby Jindal is trying to distinguish himself as the far-rightest candidate, especially on issues relating to marriage equality and its supposed threat to the religious freedom of conservative Christians.

Jindal’s latest came at the end of the day on Tuesday. Unwilling to accept the legislature’s failure to pass a so-called “religious liberty” bill (it was voted down 10-2 in a House committee), Jindal issued an executive order designed to protect any person who “acts in accordance with a religious belief that marriage is between one man and one woman.” The order explicitly defines “person” to include for-profit corporations and well as nonprofit organizations.

Jindal has adopted the rhetorical strategy promoted by the National Organization for Marriage and other opponents of LGTB equality: try to turn conversation about anti-gay discrimination “on its head” by declaring that laws protecting gay people are actually a form of discrimination against Christians. His statement about the executive order said it was designed to “prevent the state from discriminating against persons or entities with deeply held religious beliefs that marriage is between one man and one woman.”

Jindal’s order invokes the Supreme Court’s decision in Hobby Lobby, making it the latest sign that the decision – which granted corporations a right to claim legal exemptions based on the religious beliefs of company owners -- poses a threat to nondiscrimination measures and potentially a wide range of laws protecting the interests of workers. Jindal declared that his order is “not about discrimination,” even though its clear intent is to give legal cover to companies, government officials, and others who discriminate against same-sex couples.

Louisiana does not currently give legal recognition to same-sex couples, but Jindal is concerned that the state’s ban on marriage equality may soon be struck down by the Supreme Court, a potential ruling which his order seems to be a legally questionable effort to pre-empt. Jindal should be asked to clarify exactly what actions his legislation is designed to “protect”: a courthouse clerk who refuses to process marriage license paperwork? Religious schools getting tax dollars under Jindal’s education policy refusing to accept children of gay parents? Catholic hospitals refusing to recognize the spousal or parental rights of gay couples during medical emergencies?   

Jindal’s “religious liberty” bill had been opposed by business and tourism leaders as well as civil rights groups. The New Orleans Times Picayune reports that the New Orleans Convention and Visitors Bureau CEO Stephen Perry had called the bill “a radioactive, poisonous message.”

But Jindal’s primary audience is no longer his Louisiana constituents; it's right-wing activists nationwide. Jindal boasted about the executive order by stopping by the radio program hosted by Family Research Council President Tony Perkins, an anti-gay activist who once suggested that LGBT non-discrimination measures would lead to the Holocaust perpetrated against Christians.

Right-wing pundit and Iowa GOP activist Steve Deace reacted rapturously, proclaiming Jindal his “winner of the week” for standing up to “Republicrats.”

Jindal immediately stepped in and ordered that while he’s governor the state government is not going to be a tool of the Cultural Marxists’ Rainbow Jihad against religion — particularly Christianity….

This action by Jindal is an example of what will be required of the next president if he’s going to truly honor his oath of office to defend our Constitution against all enemies — “both foreign and domestic.”

Let’s face it, the vast majority of alleged conservatives won’t stand up to the Democrats. And almost none of them will stand up to the Republicrats. On perhaps the most important issue of them all — the First Amendment that allows us the freedom to peacefully and publicly stand on principle for everything else — Jindal has done both.

But he didn’t just stand up to them rhetorically, he actually did something about it. There are several potentially exciting presidential candidates this cycle. There’s even a couple that like Jindal have shown they will tell the Republicrats bleeding us dry to stick it where the sun doesn’t shine.

PFAW

Diversity vs. Scalia at Marriage Oral Arguments

There was a fascinating exchange during oral arguments in the marriage cases this morning that highlighted the importance of having a diverse federal judiciary.

Echoing a right-wing talking point that is utterly without legal merit, Justice Scalia suggested that ministers who oppose marriage equality might be compelled to violate their religious beliefs by marrying same-sex couples. Once the Court rules that the state cannot constitutionally discriminate against same-sex couples seeking to marry, then clergy – who are instruments of the state when they perform a civil marriage – cannot constitutionally decline to marry same-sex couples, Scalia suggested.

I don't see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. … I don't see any answer to that. I just don't.

Really??

Fortunately, while Justice Scalia didn't see any answer to that, Justice Kagan was there to inject what should have been an obvious point:

[T]here are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many rabbis won't do that.

Yes, Justice Scalia, throughout American history, with marriage limited to opposite-sex couples, clergy have been free to refuse to marry people if doing so violates their religious beliefs, even when discrimination against that couple by the state would be unconstitutional. That will not change just because the religious belief in question is about two men or two women. It's called the First Amendment.

For many American Jews, intermarriage is common among our friends and family, so we are quite familiar with rabbis who choose not to marry mixed-faith couples. Bringing her life experience to the bench, Justice Kagan was able to help ease Justice Scalia's mind.

But it's disconcerting to think that Scalia had to be reminded of this in the first place.

PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

At today's oral arguments in Obergefell v. Hodges (the marriage cases), some Justices expressed concern with concluding that the Constitution prohibits marriage bans when no state allowed same-sex couples to marry until 2003, and that they could not think of a society in history that had allowed same-sex couples to marry.

It seems that gets things backward. It's not like throughout recorded history, gays and lesbians have been treated well but for the itty-bitty fact that we were not allowed to marry the people we loved. In fact, the opposite is true. For much of history, gays and lesbians have been stigmatized, tortured, scorned, cast out, etc. by the governing forces in their societies, both church and state. American society from our founding is far from immune from this indictment.

It is hardly a surprise that societies that suppress a minority don't establish institutions like marriage to take that minority's needs into account.

The absence of marriage equality in much of human history is not a rationale to continue to deny this fundamental right to same-sex couples. Oppression does not warrant continued oppression under the U.S. Constitution's Equal Protection Clause. Exactly the opposite is true: A history of oppression warrants heightened scrutiny of laws that harm the targets of historical oppression.

PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

During oral arguments in Obergefell v. Hodges this morning, Justice Scalia sought to frame the marriage issue as a question of who decides how to define marriage: the people, or the Court?

At one point, he asked how many states have chosen to allow same-sex couples to marry by legislative act or referendum. When the attorney for the couples also mentioned states whose courts have interpreted their state constitutions as requiring marriage equality, Scalia responded:

But ... that's not the people deciding, it's judges deciding.

But those state constitutions, like the federal one Scalia is tasked to interpret, were adopted by the people. And in adopting constitutional guarantees of Equal Protection, the people agreed to impose powerful and permanent limitations on their future lawmaking. The people agreed that they wanted to be held to a higher standard when, then or at some future point, they decide to pass laws harming a particular group. And the people chose to do so by adopting Equal Protection as a general principle, rather than adopting a specific list of who is worthy of protection.

The Supreme Court should rule that denying same-sex couples the right to marry violates the Equal Protection Clause, a promise the people made to themselves and to us when they adopted the 14th Amendment.

PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

PFAW Foundation