Thursday, November 18, 2010

Same-Sex Marriage, Freedom of Religion and the Great Gazoo

You may ask: “why title the post ‘Same-Sex Marriage, Freedom of Religion and the Great Gazoo?’”  It’s because those three things HAVE NOTHING TO DO WITH EACH OTHER!

It seems that no matter how you logically and legally refute their arguments, the religious right keeps coming back with new ones when it comes to their war against homosexuals and same-sex marriage.  Or old arguments recycled.  Gaining in prominence recently is the argument that by allowing same-sex marriage to exist, the United States government would be discriminating against religions and their followers that find homosexuality abhorrent.  I doubt some of the more mainstream anti-gay marriage groups would phrase it that way, but that is what it is all about.  This is a twisting of logic and should be easily dismissed, but as we all know that is not so easy when your opponents do not use logic or reason for the basis of their worldview.  How can we expect them to do so in other situations?  Regardless of the rabble and volume of their voices, the argument that by allowing acknowledging same-sex marriage you are ignoring the will of the people and infringe on their Constitutionally protected religion is simply not valid.  

I was going to outline Biblical passages that the religious use to establish their homophobia, but I decided against it.  First of all, due to the legality of the process by which this is taking place the Biblical passages are, at least from a legal perspective, irrelevant.  Secondly, one could pick and choose which passage to adhere to and which to ignore.  This is an old argument and it will slide away from the point of the post.  Finally, it would not add to the discussion for me, as an atheist, to do the obvious and contradict the Bible using itself.  That exercise is getting boring for everyone involved and I think it is masturbatory.  I do not accept the Bible as the Word of God and I do not accept what is contained within it as true. Why should I waste time talking about it?

I will also skip the typical procreation argument.  That is a ridiculous argument.  The elderly marry.  People who never intend to have children marry.  Atheists marry.  That really has nothing to do with the argument.  For the purposes of our real life discussion it is much more productive to stick with the logical, legal basis of the argument.  

One of the leaders in the religious right’s movement to discriminate against and ultimately outlaw homosexual marriage is Brian S. Brown of the National Organization for Marriage.  This is but one religious group in the cause, but they are quickly gaining power and prominence in Washington D.C. and the national stage.  He is the President of NOM and is at the forefront of the religious movement to deny marriage to homosexuals.  He has many arguing points for his stance, but none more so than it supposedly infringes on democracy and his right to practice Christianity.  

In an Opposing Views: Same Sex piece for the Washington Post, Brown uses these two justifications in a few instances.  

Regarding the argument that any decision on same-sex marriage should be put to a popular vote.  Brown’s response follows:

Los Angeles, Calif.: Mr. Brown:
If all civil rights were put to a popular vote only -- since you claim that not only the courts but also the legislatures are not the voice of the people -- would it follow that you would support a majority vote of, say, Mississippians to outlaw interracial marriage? Polls have consistently shown such a vote would turn out against interracial marriage in much of the Deep South. Where do you draw the line?

Brian Brown: The civil rights analogy is simply false. Period. African-Americans voted overwhelmingly to pass Prop. 8 in California. Many African-American leaders I work with don't want the civil rights movement hijacked to redefine marriage.

Mr. Brown’s response is simply false.  Period.  It is a non-sequitur.  Logically, it does not matter how African-Americans voted on Prop 8 as a response to the question of where to drawn the line on popular votes that could legalize discrimination.  What Brown achieves by inserting how African-Americans voted on Prop 8 is a cynical ploy to use Americans inherent fear of being called racist to avoid a logical answer.  He is deflecting.  Also, it also does not matter if African-American leaders “don’t want the civil rights movement hijacked to redefine marriage.”  African-Americans do not have a monopoly on being discriminated against nor on the civil rights movement as a whole.

I would also like to point out that the questioner is correct; it is a logical fallacy to defend the use of a popular vote in one instance and not another.  There is a logical parallel: both popular votes could establish laws that are potentially discriminatory.  

Later in the same piece Brown states:

Brian Brown: Mark Stern the General Counsel for the American Jewish Congress has states (sic) that there is "a trainwreck about to occur" between religious liberty and same-sex marriage and that nobody "is trying to stop the train".

Well, we are working to stop the train.

Simply put, if you encode into the law that those of us who believe that marriage is the union of a man and a woman are bigots, why would you not expect the law to treat us as such?

I've argued same-sex marriage advocates across the country and many will, when pressed, argue that my beliefs are the equivalent of bigotry.

So if the law will treat us as bigots what does this mean?

Can racial bigots get professional licence and run their practices along bigoted lines...NO. Can they get radio broadcasting licenses...NO. And the 800 pound gorilla, can they have tax-exempt status...NO. This has been litigated.

This is using the force of the law to punish, repress, and marginalize those of us (and our organization) who do not accept same-sex marriage. I've already listed examples.

This is a major, in my opinion, catastrophic effect of same-sex marriage.

Mr. Catania has a valid point to counter...

David Catania: Again a very odd post. Am I to understand that Mr. Brown feels oppressed if he is not entitled to discriminate?

You won’t be treated like bigots if you don’t act like bigots.  If same-sex marriage is encoded into law then I fail to see how this harms you unless you continue to bang the drum of religious intolerance and legalized discrimination against homosexuals who wish to marry each other.  

Glenn Beck, Rush Limbaugh, Michael Savage and a host of other racists and bigoted assholes have radio broadcasting licenses.  I think you’ll be OK.  In this country its is legal to SAY racist and bigoted things, but you cannot act on them.  You can say that marriage is between one man and one woman.  You cannot make that into law.  

Tax-exempt status?  Why is that so important to you?  Does it cut into profits? I don’t quite understand.

The law will not punish, repress and marginalize you for not accepting same sex marriage.  That in and of itself would be illegal.  The overall culture may marginalize you, but that is hardly the same thing.  

Another question based on one of Brown’s earlier responses:

“Passage of same-sex marriage affects MY rights and all the rights of those who believe in the shared, nearly universal understanding of marriage requiring at least one man and one woman.”

If I am a Muslim who believes all women should wear headscarves, does the fact that American women are not required to wear headscarves affect MY rights?

Brian Brown: Apples and Oranges. There would be a religious liberty infringement, however, if the state told this hypothetical Muslim that she COULD NOT live and act on her religious beliefs by outlawing headscarves.

Again, Brown is twisting logic and avoiding the question.  It would violate the First Amendment if hypothetical Muslim woman could not wear her headscarf.  It does not violate the First Amendment rights of a Muslim if non-Muslim fellow citizens do not wear headscarves.  It is the same with religious neighbors of a gay married couple.  I fail to see how the religious person’s liberty is infringed.  

The First Amendment of the Constitution of the United States of America states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The religious right always quote the Free Exercise Clause “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” to make their argument that they cannot freely exercise their religion if homosexuals are allowed to marry.  If at first this seems like rubbish that’s because it is.  As a questioner correctly pointed out in the Opposing Views piece from the Washington Post, it is not violating a religious person's First Amendment rights for someone else to not follow precepts of that religion (or any other).  

In addition to the First Amendment we also have Section 1 of the Fourteenth Amendment of the Constitution of the United States of America otherwise known as the “Equal Protection Clause” states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The State cannot deny rights to an individual or group that it grants to another individual or group.  Marriage, for all its religious connotations, is simply a license granted by the State.  In cases of a religious wedding (the ceremony) the ordained minister is only the officiant.  They do not grant or approve the marriage in order to make it legal.  The State does that.  As I cited in a previous post, the case of Perry v. Schwarzenegger. Case No. C 09-2292 VRW (2010) clearly states this:

FF#19  Marriage in the United States has always been a civil matter.
Civil authorities may permit religious leaders to solemnize
marriages but not to determine who may enter or leave a civil
marriage. Religious leaders may determine independently
whether to recognize a civil marriage or divorce but that
recognition or lack thereof has no effect on the relationship
under state law.

a. Tr 195:13-196:21 (Cott: “[C]ivil law has always been
supreme in defining and regulating marriage. * * *
[Religious practices and ceremonies] have no particular
bearing on the validity of marriages. Any clerics,
ministers, rabbis, et cetera, that were accustomed to
* * * performing marriages, only do so because the state
has given them authority to do that.”);
b. Cal Fam Code §§ 400, 420.

This is important.  The religious leader (officiant) has no legal authority over the wedding or the marriage.  None.  They perform the religious ceremony and the spiritual component of that is not recognized by the State.  It would be illegal to do so.  How can the State legislate the religious aspect of an institution which is illegal for the State to recognize? That would be “respecting an establishment of religion.”  All other concerns aside; this is law.  

The religious right always makes claims about activist judges whenever they do not get what they want.  Many of these decisions are made on strict adherence to, or interpretation of, the law.  It does not matter if there was a popular vote to establish anything that is discriminatory to a group.  That popular vote can, and should, be overturned.  

You cannot claim that the legalization of same sex marriage is discriminatory of your religious beliefs and deny a group pf people the rights your enjoy.  That breaks two constitutional amendments and the boundaries of common sense.  There is no reason, other than religious bigotry, to deny equal rights.  The religious do not (and obviously don’t) have to agree with this.   It is antithetical to the laws set forth in this country within the Constitution of the United States of America.  That document they always say that want to get back to.  

Personally, I take the Libertarian stance (though I am not a Libertarian) that the State should not have a legal involvement in marriages (other than it could protect children and adults from forced marriage, etc.) or define marriage.  This would seem to satisfy all parties, at least from a legal perspective.  I suspect, however, that the religious right would still have a problem with “gay marriage” either way and the current system just allows them to argue in the legal setting thereby they make the attempt to absolve themselves of perceived or real bigotry.  It does not.  The religious right can argue about rights and protecting values all they want, but it is all really about religious intolerance and bigotry.