On Religious Freedom and Same-Sex Marriage

April 22, 2014 8:00 am

by Jon Richards · 49 comments

In late February, I wrote a long post about the Preservation of Religious Freedom act that was then working its way through the Georgia Legislature.   The bill would have extended the rights granted by the federal Religious Freedom Restoration Act to Georgians.

In the end, the bill did not get a vote in either the House or Senate, based on concerns expressed by the business community and opposition by the LGBT community, which was fearful that the bill’s passage would enable discrimination against gay couples.

After the post was published, and after it became clear the Preservation of Religious Freedom Act wasn’t going to pass, I heard from people on both sides of the issue indicating a desire to work together to find a solution that would find common ground and respect the interests of both the religious and LGBT communities.  Senator Josh McKoon said he wanted to educate people on what the Religious Freedom Act was, and how it wouldn’t foster discrimination, in hopes of getting the bill passed in 2015.

Georgia is one of five states – the others are Alaska, Montana, North Dakota and South Dakota – where there had been no litigation filed challenging our state constitutional ban on same sex marriage (SSM).  According to Anthony Michael Kreis, the steering committee political co-chair at the Human Rights Campaign, that will no longer be true as a lawsuit challenging the state’s ban on SSM will be filed later today.

A few weeks ago, I was talking to a Republican Georgia state legislator who brought up the likelihood of just such a lawsuit. He pointed out that once the suit was filed, it was only going to be a matter of time before the ban on SSM would be overturned. And he brought up the possibility of GOP-written legislation that would provide for a constitutional amendment to remove the prohibition on SSM and contain provisions protecting the religious freedoms of all.

He was concerned that without the passage of such a bill, not only would the state’s ban on SSM be ruled unconstitutional, but Republicans would become a rapidly shrinking minority, given strong support of SSM by millennials.

A legislative proposal to change the Constitution would have to be voted on in a general election, most likely in 2016.  As one millennial told me, if the vote were limited to those under 35, it would pass overwhelmingly.

Kreis thinks it might take four to six months to get the constitutional challenge through the trial court, depending on how it is handled.  And given likely appeals, it could be a year or two before everything is resolved.  We can expect Georgia Attorney General Sam Olens to defend the SSM ban, given what he told the Faith and Freedom Coalition in February.

For those who think there could be an agreement resolving the religious freedom and same sex marriage issues without an expensive, nasty court fight that could leave one or both sides unhappy, the time to work together to find a solution is now.

{ 49 comments… read them below or add one }

Robbie April 22, 2014 at 8:10 am

As long as someone works in a religious field, there should be absolutely no fear of losing any “religious freedoms.” There haven’t been any cases (anywhere) of any religious institution being forced to engage in or support same-sex marriage – and the Georgia case certainly isn’t suing for the right to be recognized by Churches or other religious institutions.

If a business is in the public arena, and has a purely secular purpose, then it must follow all secular laws. If being able to deny service to someone based on how one interprets religious law is important to a person, it would be far more beneficial to re-organize as a religious business rather than continuing to fight a (losing) battle to restrict someone else’s secular rights.

saltycracker April 22, 2014 at 8:33 am

How much emotion and effort to engineer social behavior could be saved if government looked at people as individuals protecting their freedoms and opportunities vs. Legislating for sub-groups fighting for an advantage ?

John Konop April 22, 2014 at 8:40 am

We live in a world via new technology that gives employers, government……..unbalanced power verse the individual…..if a person works for a church, government, company……we must be careful to way the rights of the individual over the institution….this was a concept many of our funding fathers thought was a cornerstone……

The younger generation conservative or liberal are becoming more fearfull and distrusting of institutions power….Jon, I think you did a very good job laying out the issue. I agree we need a weighted well thought out position……

saltycracker April 22, 2014 at 9:12 am

Are you suggesting the individual has the right to tell a church/business/group of individuals they must pay for something they don’t want to ? We must be very careful in legislating these things. The individual has rights and it gets delicate when other individuals are forced to pay against their customs.

John Konop April 22, 2014 at 9:58 am

In healthcare it is tricky…..Some religions do not believe in using traditional medicine, therapy…..ie like Scientologist….If you work for a Scientologist should they be able to deny coverage for the above? I tend to lean toward individual rights as long as their rights do not effect other people ie driving impaired within reason, building a office building in your neighborhood……effects other people and their rights….

What if my religion said I cannot hire people who own guns, who dance, who watch PG 13 or higher movies, who drink……? I find it rather ironic how the left and right tend to support limited rights if they agree…..The concept of limited rights should not be a popularity contest….It should be based on does it effect taking away the rights of other people…

As an employer I have the right to set reasonable behavior standards, rules….while at work….and outside of work still have some rights….but it is tricky how far that extends…

saltycracker April 22, 2014 at 12:11 pm

When you work for anyone that has a very clear mission statement and code of conduct, that is the contract. Most employees know what part of their work culture extends beyond the work place. In my experience the worst experiences come from smaller, private companies, not the big public ones with changing managers. The worst environment is in the highly bureaucratic governmental agencies trying to micro manage every key stroke for political correctness and zero real accountability. But they guarantee a nice escape after 20/30 years of compliance.

John Konop April 22, 2014 at 2:23 pm

good points…..

John Vestal April 22, 2014 at 8:40 am

Anthony has posted a link to the filing here.

Harry April 22, 2014 at 9:17 am

This is all wishful thinking on your part. It’s political suicide. You won’t even provide the name of the “Republican Georgia state legislator”!

Jackster April 22, 2014 at 9:39 am

I don’t quite understand how the christian religion can have both a need for protection from government interference / law suits (Freedom of Religion Act), and the need to form government laws (same sex bans).

Shouldn’t the happy medium be for the gov’t to not allow suits, and to not force christian beliefs on others?

Seems to me if you would adopt that stance, republicans would have a fighting chance.

Harry April 22, 2014 at 10:09 am

I think it’s Democrats who are more worried about a “fighting chance” right now. Senate seats in Minnesota and Oregon are now in play. Ask yourself, being on what side of what issues are causing Dems to blow their prospects? You guys are kidding yourselves.

Jackster April 22, 2014 at 11:37 am

In typical gay hating harry fashion, you have avoided the entire point, which actual validates the supposition there that you want the govt to exert a christian influence (same sex bans) over its peoples and not have any interference / law suits.

I would ask yourself this: is it possible to govern as a party without a religious pretext?

greencracker April 22, 2014 at 10:10 am

I keep hearing comparisons b/w the former illegality of interracial marriage and the now-times illegality of gay marriage.

Seems to me that’s a really valid comparison. But I’d be interested in knowing any critiques.

Harry April 22, 2014 at 10:17 am

Apples and oranges and not a valid comparison. The Bible, Koran and other religious texts say nothing against interracial marriage.

Robbie April 22, 2014 at 10:26 am

Except that people used the bible to prohibit interracial marriage. And also, the Jewish bible says nothing about same sex marriage. At all. (All the bible prohibits is male-male anal sex. Nothing more, if you look at the actual verses.) And Christians who subscribe to Old Testament thoughts should understand that as well.

Harry April 22, 2014 at 10:29 am

Disagree.

Robbie April 22, 2014 at 10:32 am

On which point?

greencracker April 22, 2014 at 10:43 am

What about religious gay people? There’s plenty of them whose churches and synagogues marry them. So they’re married, right?

Robbie April 22, 2014 at 10:48 am

The nice thing is, churches can do whatever they want – and they’ll always be able to do that. If they want to be accepting, that’s great. And if not, that’s their choice.

Jackster April 22, 2014 at 11:41 am

Does the government join two individuals in the eyes of god? No, a church does.

And therein lays the rub.

Robbie April 22, 2014 at 11:59 am

Not really, since the government joins two people together in the eyes of the IRS, so if they’re going to do it, they need to do it equally.

Jackster April 22, 2014 at 1:10 pm

Perhaps I should start selling same sex living trusts.

Jackster April 22, 2014 at 11:39 am

right harry, which is why jews and gentiles got married all the time.

DavidTC April 22, 2014 at 5:10 pm

Wow, you’re an idiot, aren’t you?

There are, indeed, plenty of passages in the Bible that people used to claim forbid such a thing. Just as there are now passages people claim forbid same sex marriage.

For the record, the anti-interracial marriage people probably had a better claim. At least their passages were about *marriage*.

The anti-same-sex marriage people are reduced to pointing at passages about *sex*, there’s literally not a word in the bible about marriages of people of the same gender. Sure, it’s not *mentioned* as something that’s possible, but that also means it’s never forbidden, as inter-racial marriage can be interpreted to be.

Jackster April 22, 2014 at 6:31 pm

I’m willing to be the idiot here, but in my defense, I know jack squat about Talmudic law, which isn’t really covered in its vastness in the bible.

My thought, though, still stands, that most cultures wanted to marry inside their own; however, that was more for family heritage than what the state would like.

greencracker April 23, 2014 at 12:48 am

The Bible also says that Jesus is the savior. But people who don’t believe that are allowed to get married all the time.

Jackster April 23, 2014 at 7:54 am

And I’m sure if the gov’t could tax you after death, there would be laws regulating the resurrection as well.

General Jack D. Ripper April 22, 2014 at 12:08 pm

Green, the illegality of interracial marriages were based on the idea that it would result in children of mixed race. The pseudo-science of eugenics (I even hate to use the word “science” here) was in vogue and keeping the races separated and “pure” was seen as a state interest (mainly so they weren’t denying a partially white person the right to vote, etc). The SCOTUS rightly concluded that the laws were passed to protect white supremacy by eliminating the possibility of legitimate mixed race children.

Same sex marriage would not apply under this rational as a same sex couple cannot have a child who is 1/2 each partner.

Most marriage laws are designed around the production of the next generation, not necessarily around the rights of the individuals getting married. If the laws were focused on the rights of the individuals marrying, there should be no prohibition on consenting adult marriage (regardless of race, gender, current family relationship, or number of partners).

General Jack D. Ripper April 22, 2014 at 12:19 pm

It should be pointed out the restriction in Loving was also against white people only. Non-white races were free to marry anyone of any race, except white.

John Vestal April 22, 2014 at 12:26 pm

That was the case in Virginia, yes, but some states had additional restrictions (e.g., in Maryland, Blacks and Filipinos could not marry)

General Jack D. Ripper April 22, 2014 at 12:39 pm

True, but the issue was miscegenation, which was the illegitimate purpose in all of those laws that were struck down with the case.

It also should be noted the Lovings were legally married in Washington, DC. and were told to either leave VA and not return for 25 years or go to jail. It wasn’t that VA was refusing to recognize their marriage, but had sentenced them to a year in jail. The 25 year period is important is it would have taken them out of the normal range of child bearing years for Mildred Loving.

I don’t hear anywhere talk about imprisoning same sex couples legally married in other states who come to GA. There are also other marriages recognized in other states that are illegal in GA, but are recognized by the state, namely, cousins who are married in states where it is legal. GA doesn’t refuse to recognize those marriages as valid.

General Jack D. Ripper April 22, 2014 at 12:45 pm

Correction, you can marry your first cousin in GA. Only a couple of states won’t recognize such a marriage in their state.

John Vestal April 22, 2014 at 5:07 pm

IIRC, another interesting point in the Loving case was that the Virginia statute differentiated between couples who were legally married in another state (or in D.C.) and moved to Virginia and those who were already Virginia residents who went to other states to marry and then returned. The former were only charged with a misdemeanor, the latter with a felony (again, IIRC).

Three Jack April 22, 2014 at 11:09 am

LGBTers might wake up one day a few years from now and wonder wtf they were thinking when they fought to have equal marriage access. Why would any group want to have access to an ‘institution’ where almost 50% of participants fail? This could very well be an issue that looks like a good thing for LGBTers now, but they end up regretting their inclusion.

Jackster April 22, 2014 at 11:42 am

To quote Melissa Ethridge, “I’m for gay divorce”

saltycracker April 22, 2014 at 12:22 pm

Because in marriage there is opportunity to advantage from other people’s money, risk/reward. The gays want in on this special class of folks and the Feds will be the first to show them the money.

Will Durant April 22, 2014 at 12:32 pm

True separation of Church and State would not have the State catering to the Church definition of marriage in the first place. For the protection of the cheeldrun we need laws for civil unions I suppose or maybe just track the names on the birth certificate and/or guardianship documents afterward? I don’t know, I’m not a lawyer. Take out all of the tax and insurance advantages for being “married” and then the LGBT crowd is just as equal. It is that or you must give them the same advantages to remain Constitutional, in my opinion.

The Constitution was meant to be a living document precisely for situations like this. There is no way the founding fathers could have anticipated IVF and surrogates.

As to the Religious Freedom stuff, be very, very, careful here or you may get more than you bargained for. I could see some Rastafarians having a field day with that one. Or I could set myself up as the Bishop of the Church of Gaming and Prostitution and file for tax free status on my property which will be used for the Poker Tournament sacrament on Sundays. Services denied to Bible toters but all backsliders welcome.

General Jack D. Ripper April 22, 2014 at 1:15 pm

Will, that would be a sound argument…if only Christians recognized the marriage relationship as being between one man and one woman, but that marriage definition was recognized by early pagan cultures and officially atheist states (meaning religion was prohibited or there was limited religious freedom) like the USSR and China.

You could see Rastafarians having a field day…if that issue had not already been decided, along with the Church of Gaming and Prostitution. Like all freedoms, there is a limit so as not to carry to the extreme. You’re not going to be able to include human sacrifice in your religious service either. The case law is long settled.

Will Durant April 22, 2014 at 1:51 pm

We can’t fall back on past law for situations that could not have been anticipated by even the lawmakers in the USSR. They didn’t have IVF then either, or an income tax or health insurance policies to give married couples an advantage. Hell, traditional law would have you take them outside and hang them, or worse. I believe Thomas Jefferson recommended castration in Virginia at one point but that was him being a “liberal” to castrate in lieu of hanging. My point is that the State should treat all as equals, period. With the exception of what to do to make sure minors are guarded the State shouldn’t care what goes on behind closed doors between two or more consenting adults.

And yes I was being facetious of course and you are correct regarding interpretations of current law regarding freedom of religion. However some of this Faith and Freedom stuff doesn’t read too much differently than Mein Kampf to me. If Harry’s Gaydar allows him to discern tops and bottoms and deny them service then who is to say mine can’t determine whether you bow to One God, Three Gods, or Baal and deny you services or goods.

General Jack D. Ripper April 22, 2014 at 2:49 pm

Why do I owe you any good or service?

George Chidi April 22, 2014 at 5:43 pm

That depends entirely on your line of business. Law and common custom require some people to offer compulsory services to all comers on an equitable basis if you’re going to offer services in the market at all.

Harry April 22, 2014 at 5:52 pm

Whose law and common custom? Which “some” people?

saltycracker April 22, 2014 at 5:55 pm

Trying to force Harry to do your taxes again, aren’t you ? :)

Harry April 22, 2014 at 6:41 pm

If someone is an obvious homosexual, or adulterer, or drug user, or alcoholic, or exhibits any other behavior of which I disapprove, then I will consider the person as high-risk and not dealing with them. So audit or sue me I don’t care. That’s not to say I don’t have some of the above among my clients, but either they keep it on the real lowdown or they’re obviously in recovery.

saltycracker April 22, 2014 at 8:16 pm

Well in support of George, he is on the recovery trail, why just recently he offered to occupy the vacating seat of a far right wing cut and paste guy on the radio…..at half the pay scale. :)

Will Durant April 22, 2014 at 6:50 pm

Don’t ever buy a Dennys.

South Fulton Guy April 23, 2014 at 7:45 pm

When you redefine marriage — it’s anything goes. Congrats you I don’t care advocates http://nypost.com/2014/04/23/married-lesbian-threesome-expecting-first-child/

Dave Bearse April 25, 2014 at 12:22 am

A Fox tabloid as a news source?

saltycracker April 25, 2014 at 11:08 am

Now that’s funny, in light of what we see on entertainment/celebrity ABC, CBS, NBC….or any of the cable news channels…..pot/kettle….

Why do the Feds need to get into a legal description of marriage when “individual” should suffice ?