hunter of justice

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

BC Law professor crosses line in ad supporting repeal of Maine marriage rights

Boston College Law Professor Scott Fitzgibbon appears in the ad below for the Yes on 1 campaign seeking to overturn the statute adopted last summer by the Maine legislature which granted equal marriage rights to same-sex couples.  No problem there - he's certainly got every right to do that. But Professor Fitzgibbon lends his imprimatur (he is a jurisprudence and business law scholar) to three canards from the Prop 8 wars that are false: that same-sex marriage will lead to a "flood" of lawsuits against individuals, small businesses and churches; that religious groups will lose their tax exemptions; and that "gay marriage will be taught in the schools -- whether parents want it or not."

How fitting that the ad is titled "Consequences," because it sure ain't the truth. The truth is that:

First - After five plus years of legalized same-sex marriage in Massachusetts, the number of oppressive lawsuits filed that have been based on that law is exactly ... zero.

Second - Not only is it the same number - zero - of  religious groups in Massachusetts that have lost their tax exemption, but no serious scholar believes that the charitable contribution exemption from federal income tax is at risk. The only tax exemption issue that has arisen was a property tax exemption for a church in New Jersey (where marriage for gay couples isn't even legal). There the issue involved a church which advertised that a space that it owned on the boardwalk was open to the public. When it refused to rent the space to a lesbian couple for a civil union ceremony, the property tax exemption (which had been specifically premised on the space being available for public use) was withdrawn. (More here)

Third - The case cited in the ad, Parker v. Hurley, involved whether parents could withdraw their children from a diversity curriculum that included sexual orientation. Some of the materials used by some teachers dealt with marriage. The courts upheld the discretion of the local school board to make curricular decisions. (More background here)

Does this mean that there are no legitimate or difficult issues raised by the conflict between religious beliefs and secular equality principles? No. But in fact they tend to arise more frequently with the application of anti-discrimination laws, not equal marriage laws. The arguments made in this ad are nothing more than scare tactics.

6th Circuit upholds religious group's firing of gay employee, but ACLU may have the last laugh

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or ... her religious differences with KBHC. ... Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof..."

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA - with its broad religious exemption - likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.

Try a complete religious exemption: dis-establish religious marriage

The following post to the Social Science Research Council page is by Janet Jakobseen and Ann Pellegrini, authors of Love the Sin, a great read on the relationship between sex and religion:

This notion that religion and sexuality are somehow in opposition is one of the few beliefs shared by opponents and supporters of gay rights. Yet it has significant policy implications, particularly in recent moves to enact far-reaching “religious exemptions” as a condition of passing state laws permitting same-sex marriage. In New Hampshire, Governor John Lynch threatened to veto same-sex marriage unless state legislators also passed a bill framed as “protecting” religion and extending “religious liberty,” but that in practice exempt religious organizations and their employees from otherwise applicable state anti-discrimination laws. (Legal scholar Nan Hunter has predicted that the New Hampshire language could become a model for same-sex marriage laws nationally.)

In our 2003 book, Love the Sin: Sexual Regulation and the Limits of Religious Freedom, we offer an extensive argument that religious freedom and sexual freedom are actually interdependent rather than oppositional. Unfortunately, the impact of “religious exemptions” like those included in the New Hampshire law is to codify a narrow version of religious freedom in which religious liberty and sexual freedom can only be seen as mutually exclusive. This is not just a loss for sexual freedom; it also significantly narrows the parameters of religious freedom offered by the US Constitution.

If there is a “religion problem” posed by gay marriage, it is not that some religious organizations might be “forced” to provide secular benefits to same-sex couples, such as healthcare or equal access to residential housing; it is rather the entanglement of the state with the business of any couple’s religious marriage. The problem here is that the state legitimates religious marriages, performed by members of the clergy, rather than only civil unions performed by representatives of the state, thus entangling, rather than separating, state and religious practice. When such entanglements are maintained in law, religious practice is not “protected” from the state any more than citizens are “protected” from the imposition of religious convictions they do not share. New Hampshire and other states could actually “protect” both religious practice and those who are not religious (or who are differently religious) by providing civil unions on the basis of equality and letting religious bodies provide for religious marriages. No secular benefits would then flow from religious marriage, and the secular benefits that follow on civil unions would be separated from religious debates over homosexuality....

In a recent issue of the Nation, Lisa Duggan highlighted Equality Utah’s proposal for an Adult Joint Support Declaration, which would allow a legal framework for caretaking—medical decision-making, health insurance benefit designation, and inheritance—among adults who are not necessarily related by sexual or romantic partnerships. Such a proposal separates secular benefits not just from marriage but from sexuality as well, further removing the current entanglement between state benefits and religious debate over sexual practice. As Duggan points out, such a measure could spark unexpected political alliances as well as expand the support for caretaking in our society well beyond the question of marriage or domestic partnership, getting, in her words, “the AARP on board to lobby for medical next of kin, tax and inheritance rights for ‘Golden Girls’ households, or attract libertarians who want to take the state out of the business of ‘recognizing’ sexual or romantic relationships entirely.”

This shift in framework—from gay rights to the basic ground of freedom and equality—would do much not only for gay people and for the Obama administration’s standing with the oft-invoked “gay community;” it could significantly alter how controversial issues are approached in American public life. We might move beyond the identity politics of rights-based movements, even as we preserve the ability to act on identity- and rights-based claims. Who knows, but we might even create the basis for one of the most promising possibilities invoked by the early Obama campaign: not just change we can believe in on given political issues, but the possibility of creating a “new majority” that goes beyond individual issues to larger questions and practices of liberty and justice for all. Achieving this new majority cannot happen if we trade off some people’s sexual freedom for some other people’s religious freedom (or vice versa).

British group issues guide to balancing religion and gay equality in the workplace

The Stonewall Foundation has published a report on "Religion and Sexual Orientation: How to manage relations in the workplace" that Congress ought to read in advance of its consideration of ENDA. Aside from some platitudinous guidelines ("treat everyone with respect"), the core of the document is a series of case studies, including a local clerk who refused to conduct civil partnership ceremonies, a counselor who balked at providing psychosexual counseling to same-sex couples, and a senior employee who constantly quoted Bible passages to a junior employee. The rule in Britain is that religious organizations can discriminate only if the job position or activity in question is directly associated with the doctrine of the faith group.  By contrast, the religious exemption in ENDA would grant religious organizations essentially a blanket waiver of ENDA's requirements. As this report documents, the British system is workable and fair.

Supreme Court denies cert in school religious club case

In a little-noticed order on the last day of its 2008-2009 term, the Supreme Court denied cert last week in Truth v. Kent School District, a Ninth Circuit case in which a high school religious club sought to register with the school in order to use school facilities. In its opinion (542 F.3d 634, rehearing denied 551 F.3d 850), the Court of Appeals rejected the club's claim that enforcement of an anti-discrimination law constituted religious discrimination. The proposed charter filed by Truth restricted membership to those "complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." Voting members also had to sign a "statement of faith" and pledge "acceptance of Jesus Christ as my personal savior."

The school district denied recognition to Truth in part because of the implications of its name that other religions were false and in part because the membership criteria discriminated against non-Christians.  However, the Court of Appeals reversed summary judgment for the district on the ground that there was a triable factual dispute over whether the district consistently applied its anti-discrimination policy to all student clubs equally.

The cert petition filed by Truth challenged the Ninth Circuit's ruling that Truth had no viable claim under the Equal Access [to Schools] Act, absent the possible selective enforcement argument. Truth asserted that under that ruling, "schools are free to discriminate against student religious groups because of their membership criteria." Truth also argued that the Court of Appeals' rejection of its expressive association claim failed to properly apply Boy Scouts v. Dale.

Denials of certiorari in and of themselves do not create precedent, so one should not read too much into this one.  It does, however, seem to bode well for the defendants in Christian Legal Society v. Kane, in which the Ninth Circuit upheld judgment for UC-Hastings Law School (Mary Kay Kane was then dean), rejecting similar claims of expressive association and First Amendment rights by CLS. 2009 WL 69339. The Court of Appeals summarily affirmed a district court decision, citing simply its ruling in Truth v. Kent. Any risk that the latter opinion will be overturned is now over.

Meanwhile, CLS filed a cert petition in its case, which is before the Supreme Court this summer. Based on Truth v. Kent, the prospects for another denial of review, leaving in place a good decision, seem good.

Obama promises "robust" conscience clause exemption for health care workers

Both the Washington Post and the Catholic News Service are reporting that President Obama assured a group of religion writers that he would insist on strong conscience clause exemptions for health care workers who object to certain medical procedures. Shortly before the end of the Bush administration, HHS issued new regulations that would prevent any HCW or hospital from being required to perform an abortion or other procedure to which they had a moral objection. The ACLU filed a lawsuit to stop the regulations from taking effect. Obama withdrew them, but is now promising that his administration's version will also be "robust," although only in the sense that it will be equivalent in strength to the status quo prior to the Bush regs. Especially given the attention being paid to religious exemptions in the same-sex marriage context, I think it's going to be important to watch how the new administration conceptualizes the trade-offs between rights in framing the terms of an exemption.

Here's the more detailed Catholic News Service report:

President Barack Obama told a round table of religion writers July 2 that he continues to be profoundly influenced by the late Cardinal Joseph Bernardin of Chicago, whom he came to know when he was a community organizer in a project partially funded by the Catholic Campaign for Human Development.

Obama said his encounters with the cardinal continue to influence him, particularly his "seamless garment" approach to a multitude of social justice issues. He also told the group of eight reporters to expect a conscience clause protection for health care workers currently under review by the administration that will be no less protective than what existed previously....

The president [said]  that he expects an ongoing review of conscience clause regulations will result in a continuation of protections that have long existed, allowing people who are morally opposed to abortion or contraceptives to decline to provide them in the line of work without repercussions.

Obama said in some ways he sees his first meeting with the pope as the same as any contact with a head of state, "but obviously this is more than just that. The Catholic Church has such a profound influence worldwide and in our country, and the Holy Father is a thought leader and opinion leader on so many wide-ranging issues. His religious influence is one that extends beyond the Catholic Church."...

On conscience clauses, the president said he has consistently believed in them. As a state legislator, he said, he supported "a robust conscience clause in Illinois for Catholic hospitals and health care providers." Soon after he took office as president, the administration reversed what Obama described as "eleventh-hour change(s) in conscience clause provisions that were pushed forward by the previous administration."

According to Obama, the Bush administration change, which took effect two days before the new president was sworn in, hadn't been "properly reviewed and thought through, and he added that there were some concerns about how broad it might be and what its manifestations would be once implemented."

In general, that change codified longtime federal statutes that prohibit discrimination against health professionals who decline to participate in abortions or other medical procedures because of religious or moral objections.

In his speech at Notre Dame, Obama called for a "sensible conscience clause." and said he wished to "honor the conscience of those who disagree with abortion."...

"We will be coming out with, I think, more specific guidelines," he said. "But I can assure all of your readers that when this review is complete there will be a robust conscience clause in place. It may not meet the criteria of every possible critic of our approach, but it certainly will not be weaker than what existed before the (Bush administration's) changes were made."...

Will the New Hampshire religious exemption become a model for new marriage laws?

From The National Journal:

...When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added....

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation....

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples ...

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there....

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."...

Obama Catholics

From The Tablet, a British Catholic publication:

A new kind of Catholic Democrat is emerging in America's corridors of power - young, politically committed and often with the same community organising background as the President himself. So who are these new church advocates with a direct line to Obama? At the time of the Democratic ­primary campaign last year, the patriarch of America's iconic Catholic family, Senator Edward Kennedy, gave then-Senator Barack Obama's campaign a boost with his endorsement. Kennedy hails from an earlier era of Catholic political involvement. For him, as for other prominent Catholics such as Connecticut Senator Chris Dodd or House Speaker Nancy Pelosi, politics is the family business. The culture of Catholicism in the north-­eastern United States is tribal, heavily influenced by the ethnic immigrant experience and its hardships, built upon personal loyalties as much as ideological inclinations, and the politics reflects that culture.

While these traditional Catholics supported Obama, his victory and the power that goes with it have allowed him to patronise a new and different kind of Catholic Democrat, whose source of political involvement is more intentional than tribal and more rooted in ideas. Their curricula vitae are likely to include experience as an activist or community organiser. They are younger and they plug into their constituencies through blogs and emails, rather than visits to the union hall. They are as likely to hail from the Midwest or California as from New England or Maryland. Many of them are Latino. They are Obama's Catholics.

On 27 May, at 8.08 p.m., ... the White House announc[ed] the nomination of a new ambassador to the Holy See, Professor Miguel Diaz. A theologian at St John's University in Minnesota, Diaz is a scholar whose works bring together the ­theology of Karl Rahner with the experience of US Hispanic Catholics, with heavy nods to liberation theology. He is the first theologian to be appointed to the post and the first Hispanic to represent the US at the Vatican...

Catholics in Alliance for the Common Good is the paradigmatic new Catholic advocacy organisation. Chairman of its board is Elizabeth Bagley, an ambassador during the Clinton years, whose husband, Smith Bagley, donated $119,700 to the Democrats' campaign last year. The group's executive director and co-founder, Alexia Kelley, worked at the Campaign for Human Development, the Church's national anti-poverty programme, for years. The other co-founder of the group, Tom Perriello, is now a Democrat congressman from Virginia. ... Kelley is leaving Catholics in Alliance to become director of the Center for Faith-Based and Community Initiatives at the Obama administration's Department of Health and Human Services, a key post. Catholics United is another advocacy group in the new style....

... When Obama nominated Kathleen Sebelius to be Secretary of Health and Human Services, conservative Catholics howled. Sebelius is pro-choice and, as Governor of Kansas, had been prohibited by her bishop from receiving Communion because of her stance. Catholics in Alliance composed a petition of prominent Catholics in support of her nomination. Catholics United issued a press release supporting her as well .... Even four years ago, reporters could write that "Catholics oppose" such a nomination. These new groups have levelled the playing field. ...

...Of course, some Catholics with influence in the White House got there the old-fashioned way, through a career in politics, not a career in Catholic advocacy. Most prominent among them are vice president Joe Biden and former chairman of the Democratic National Committee Donna Brazile. ...

For John F. Kennedy's generation of Catholic politicians, the pressing need was to fight anti-Catholic prejudice and demonstrate their patriotic bona fides. Obama's Catholics, conversely, have had to demonstrate their Catholic credentials, not their American ones. Today, conservative Catholics charge their progressive counterparts with not being sufficiently influenced by their faith, backsliding from the efforts of some bishops to prioritise life issues and claiming the Catholic mantle for social justice concerns about which reasonable Catholics can disagree. The progressives counter that conservative Catholics abandoned the rich social justice teachings of the Church in favour of a one-issue approach to politics centred on abortion. Whether you agree with the Obama Catholics or not, so far they have the President's ear.

Could a religious exemption overturn Prop 8?

A new unreleased poll shows that Californians remain almost evenly divided on gay marriage, with basically no sign of voter remorse over having adopted Prop 8. There is a very slight edge for those seeking to overturn Prop 8 if they wait until 2012 rather than pushing forward in 2010. Most intriguing to me is how much better chance there is to eliminate Prop 8 if a new constitutional amendment includes a religious exemption and/or a schools exemption. 

There is no surprise in these results, but they do illustrate the need, more obvious every day, to formulate reasonable opt-outs for people who object to gay marriage.  I know that sticks in the craw of many lgbt advocates, but it is both right and advantageous. The framing of the debate - when exceptions to the rule should be created for opponents of equality - drives home the point that equality is the norm.

Many advocates believe that the better course is to hold out for laws with no exemptions, that it is worth the wait to eventually win in ways that do not legitimize the opponents of gay marriage. I understand that perspective, but I am comfortable with (some) exemptions that place the clear burden on those who object to same-sex marriage - let them explain to their children why they are going to have go sit in a study hall while all their friends stay in class. And then let's collect the data on how frequently the exemptions are invoked.  My bet - we will see a very small number, that will dwindle down further into marginality as newer generations replace the old folks.

Despite the enormous noise being made now by those who are lobbying for the exemptions, they are relegated to continuously invoking a handful of examples when arguing from real life rather than imagination: one photography studio in New Mexico, one boardwalk in New Jersey, and one adoption agency and one school exemption case in Massachusetts. None of these situations, by the way, had anything to do with a marriage law. The underlying issue is whether there should be exemptions from anti-discrimination laws. Marriage makes a difference because, all of a sudden, openly gay people are inside that category rather than safely, without anyone having to say so, excluded.

Let me be clear that I do not support any and all exemptions - far from it. Crafting the best way to proceed on this issue will be challenging. But that is where the debate is going. And that, I think, is important intellectually, politically and normatively.

Details on the new poll, from the Bay Area Guardian report:

The poll was commissioned by Polling 4 Equality, a broad coalition of large and small state groups (including the Courage Campaign, Equality California, and Marriage Equality USA), and conducted May 9-13 by David Binder of David Binder Research and Amy Simon, a partner at Goodwin Simon Victoria Research. Overall, the poll shows that California is split down the middle when it comes to same-sex marriage, with 47 percent in favor and 48 opposed. Those figures mirror other statewide polls that have been done since last fall's election, suggesting that many voters' minds are made up on the issue and the percentage of persuadable voters is very small, about 5 percent, Binder said Sunday during an informal news conference after the closed session.

The poll also shows the marriage equality side doing better in 2012 than in 2010. On a series of similar questions, the poll results show more support for reinstating the right of same-sex couples to marry (46 percent yes, 49 percent no in 2012, compared to 45 percent to 51 percent in 2010), or a constitutional amendment to end California's ban on same-sex marriage (47 percent yes, 47 percent no in 2012, compared to 47 percent yes, 48 percent no in 2010).

However, Binder noted that a ballot measure in either year would be close. "It's a very close race regardless of whether it's 2010 or 2012," Binder said. "People's opinions are very strong on both sides." ...

Another important finding from the poll is that when a religious exemption is included in the ballot language, support for same-sex marriage increases. Such language means that the initiative would not mandate or require clergy of any church or religious institution to perform a service or duty that goes against their faith. When that question was asked, the results were 52 percent in support for same-sex marriage, compared to 39 percent against, according to the poll....

A question on the poll shows the issue is close and that people are fearful that same-sex marriage will affect their place of worship. The question states, "Churches and religious groups that oppose gay marriage will be punished by the government, fined, or lose their tax exempt status because they can't in good conscience perform same-sex marriages or allow them to be performed in their churches or community halls." Of the respondents, 48 percent found the statement "very" or "somewhat" persuasive, compared to 49 percent who found it "not too" or "not at all" persuasive.

The Binder-Simon poll includes a series of questions that seem to be based on what the Yes on 8 campaign used in its messaging during last year's election. ... The questions [include] the "need to protect traditional marriage as a union between a husband and a wife, in order to have the best moral environment for our families and children" (52 percent of respondents believe that statement is "very" or "somewhat" persuasive, compared to 46 percent who find it "not too" or "not at all" persuasive).

There is also a question, "If same-sex marriage is legal in California, then the public schools will have to start teaching school children that homosexual marriage is just as good as marriage between a man and a woman" (48 percent of respondents believe that statement is "very" or "somewhat" persuasive, compared to 49 percent who said it was "not too" or "not at all" persuasive).

The Binder-Simon poll was a random telephone survey of 1,794 Californians. That figure included oversamples of Latinos (172), African Americans (258), Asian Pacific Islanders (265), and labor households (105). The base number of people surveyed was 1,008. The margin of error was plus or minus 2.8 percent. Of the respondents, 90 percent identified as heterosexual; 3 percent as bisexual, gay, or lesbian; and 7 percent did not know or refused to answer. On political party affiliation, 45 percent identified as Democrats, 34 percent as Republicans, 19 percent as decline to state, and 2 percent belonged to a minor party. Nearly three-quarters of the respondents, 73 percent, said that they personally know or work with someone who is gay or lesbian, while 21 percent did not.

The prospect of religious exemptions in the marketplace

Bill Araiza (Brooklyn Law) has begun an interesting conversation at PrawfsBlawg about the impact of allowing commercial enterprises, or the people who work there, to refuse to provide services or equal treatment to someone because of an objection based on conscience or religion.  He hypothesizes:

...[I]t hit me in a personal way yesterday when, to relieve the tedium of grading, I went to talk to my TIAA-Cref representative (a bad-news-for-bad-news trade if there ever was one).  We had not met before, as it was my first meeting with a rep based in New York.  Early on in the discussion he asked me for whom I was doing retirement saving -- i.e., who was going to rely on my money.  I did my normal split-second assessment and decided to come out and refer to my partner as my husband.  It worked out fine: the rep was perfectly appropriate and we had a good meeting.

But what if he had objected?  What if he had said, "I'm sorry but I can't in good conscience give you financial planning advice designed to take full advantage of your legal and lifestyle status, both of which I disapprove.  If I were to do so I would be acting to promote a relationship I consider immoral and would be a party to the perversion of the concept of marriage."  Could he do that?  Should he be allowed?

Bill's post drew this comment from a reader:

,,,This brings to mind a drivers' ed. instructor I once had. He spent our drive together proselytizing to me. A friend had the same experience. Our parents called the head of the driving school and explained that it was inappropriate for the instructor, who was grading us, to hold us (Orthodox Jewish children) captive to his attempts at religious indoctrination. The owner of the company immediately agreed and spoke with the instructor. The instructor informed him that he had a religious duty to proselytize and wouldn't stop. The owner fired him. All in all, I'm fairly convinced that justice was served here all around. The instructor got to live by his principles, and he also faced appropriate market sanction for them; and the next batch of 16 year olds didn't suffer the same treatment.

One can imagine an almost endless set of scenarios in which, if the law established a religious exemption for ordinary businesses, no "appropriate market sanction" would be possible. Enacting an exemption this broad would set a terrible precedent.

Conservative-gay bedfellows derail NH marriage bill

The Boston Globe reports that anti-gay marriage Republicans in the New Hampshire House, joined by a small number of marriage equality proponents, have halted the revised marriage bill containing the expanded religious exemption requested by the governor.  Now the two chambers, presumably with the governor's office, will attempt to negotiate a compromise.

...A handful of gay-rights proponents sided with Republicans in the Democratic-controlled House to vote down the bill 188-186 Wednesday, hours after the Senate approved the gay-marriage legislation by 14-10 along party lines. ...

The vote against the governor's amendment sends the bill to a committee where lawmakers from both chambers will try to resolve their differences. "We recognize this is part of the normal process of passing significant legislation and I look forward to working with my House colleagues on this bill," said Senate President Sylvia Larsen, a Democrat.

The governor has said he would veto gay marriage if his wording was not adopted. "The governor articulated strong principles that needed to be included in order for him to sign the bill," said the governor's spokesman, Colin Manning. "While he will continue to talk with lawmakers, those principles must be maintained in any final version of the bill."

State Representative Steve Vaillancourt, an openly gay Republican, was a leading voice against the amendment securing religious liberties, saying the House should not be "bullied" by the governor....

"We are pleased that common sense prevailed," said Kevin Smith, executive director of Cornerstone Policy Research, which has campaigned against same-sex marriage in New Hampshire. ...

What does the NH religious exemption mean?

Today the New Hampshire state Senate Judiciary Committee is expected to add the language that Governor Lynch has requested to an unrelated bill and bring it to the full Senate for a vote tomorrow. If it passes the Senate, the plan is that the House also would vote on it tomorrow. If Governor Lynch signs the bill, it will take effect January 1, 2010.

UPDATE: The Judiciary Committee adopted the language below by a 3 to 2 vote.  It rejected an amendment offered by Republicans to extend the exemption to commercial businesses and merchants who claim that providing marriage-related services would violate their religious beliefs.

What does the new language mean?  Is a trojan horse or meaningless redundancy?

Following is the proposed amendment being offered today, which repeats the language proffered by Governor Lynch:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of his or her religious beliefs and faith.  Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

In addition, fraternal benefit societies operated, supervised or controlled by or in conjunction with a religious organization are not required to provide insurance benefits to any person if it would violate the society's free exercise rights under the federal or state constitutions.

The source of this language is two other New England marriage laws, the ones from Connecticut and Vermont, that contain very similar provisions.  The New Hampshire proposal essentially combines language from those two laws to produce the fullest scope for a religious exemption yet enacted in a marriage equality bill.

 When you break down its density, the primary impact of the exemption will be to:

• Exempt a church, temple, mosque or a closely-related ("operated, supervised or controlled by or in conjunction with") non-profit from performing, permitting, facilitating, recognizing or accepting a same-sex marriage (or any other marriage to which they object).
• Exempt any religiously-affiliated school or university from opening married student housing (if they have such) to same-sex married couples, and probably also exempting it from recognizing  the marriage in other ways related to programs or benefits for married couples.
• Bar state and local governments from penalizing or withholding benefits from any religious entity or closely-affiliated non-profit because it refuses to serve, rent to, recognize, etc., same-sex married couples.

There are lots of good questions, however, about what various phrases mean.  (See discussion at Bilerico.) The central ones are these:

How broadly will courts define which entities fall within the scope of "operated, supervised or controlled by or in conjunction with a religious organization"? For example, will hospitals qualify? I would think that some will and some won't, depending on the tightness of the current connection. There was a lot of buying and selling of hospitals in the 1990's.  "Jewish Community Hospital" might now be owned by a big corporation, while "St. Mary's" may still be connected with the Catholic Church. If a hospital does qualify for the exemption, the real life problems could be horrific -- for example, if it makes an institutional decision not to treat married same-sex couples as married, and if it is the only hospital in the region or if someone is taken there in an emergency.

What about an organization like the YM/WCA?  I'm not an expert about the Y system, but I think that they are, now at least, operated independently of a religious organization. A Boy Scout troop sponsored by a church, on the other hand, (as many are) might well fall within the scope of the exemption. There could be many such questions, about many organizations, and the answers will be highly fact-specific to each.

Will commercial transactions by churches, etc. also be exempt from the marriage law?  Yes, religious entities that rent facilities or charge for various services would be able to decline to rent to, etc., same-sex couples if the event was related to their marriage.

Will commercial businesses be able to claim a religious exemption? No - the exemption would apply only to non-profit organizations that are affiliated with a religious entity.

What is "promotion of marriage through religious counseling programs, courses, [or] retreats"? This seems much less problematic to me, so long as the "through" phrase defines and limits the term "promotion." If that is the case, this activity should be protected already through both the free speech and free exercise of religion clauses of the First Amendment.

Will this exemption affect employment? On the face of it, the language seems unrelated to employment issues, unless a job-related benefit falls within "services, accommodations, advantages, facilities, goods or privileges." However, every state law that prohibits discrimination based on sexual orientation in employment has a religious exemption of some sort, so these questions would presumably be covered by that other state law.

What is the scope of "penalize or withhold benefits"? Specifically, can a government agency withdraw its contracts with a social services or health care provider, if that entity refuses to include same-sex married couples eligible for whatever services it provides to married couples? What if the contracts are simply not renewed rather than terminated? This could produce a huge set of problems, and is deeply troubling, since the language seems to assume that receiving funds from the government cannot be the basis for insisting that a religious entity providing care must adhere to the secular law on marriage.

Perhaps these questions will be clarified in the legislative process or in regulations.  If not, I predict litigation.

Gay marriage in, abortion rights out?

I know that's a glib headline, but it's hard not to read the current social issues buzz like those  perennial and glib new years features about trends. Gay marriage is hot; abortion rights, stale. The empirical basis for this sensibility is opinion data: in the midst of a flurry of polls finding rapidly growing acceptance of same-sex marriage, the Pew Foundation poll found slipping support for a woman's right to decide to have an abortion. 

The new NY Times conservative columnist - Ross Douthat - has joined the chatter with a column attributing the gains by gay marriage advocates to their claim of rights and liberty, in contrast to a conservative argument built on tradition, custom and religion. Citing what he calls "a prescient essay" in 2005 by Peter Berkowitz, a senior fellow at the Hoover Institution at Stanford, Douthat seems ready to concede the marriage issue because [this is Douthat quoting Berkowitz], "the expansion of rights 'steadily erodes the limits on individual choice established by law and custom.' Our legal and political debates ... are won by whichever side can argue for the expansion of freedom, and combatants who can’t argue in these terms will 'almost certainly see their cause go down to defeat.'” Douthat sees hope for the anti-choice groups because, he says, they have grown more articulate in arguing for the rights of fetal life.

What Douthat misses (aside from a mountain of other scholarship on rights discourse) is that any side can deploy the power of rights talk on moral questions,with a little savvy and the right historical moment. Whether an argument gains traction is almost always a question of framing, of whose rights and whose freedom are at stake. Rights discourse itself is highly malleable, wildly indeterminate. Witness the very smart political offensive being mounted now by advocates for religious freedom, ie for the rights of the conservative religious minority to be protected from overbearing demands of the new norm of gay marriage equality now in the process of instantiation. 

The traditionalist die-hards, who will decry gay marriage and other rights to the bitter end, are not going away.  But the smart conservatives are those who, like Professor Robin Fretwell Wilson of Washington and Lee Law School, argue that gay marriage is inevitable, and so the focus should be on carving out breathing space for the religious objectors, who represent dissent.

This is the future of the debate over gay marriage, which is taking shape this spring with the string of victories in New England and in Iowa. These questions merit serious consideration, and I'll be writing more about them (as soon as I finish grading).

El Salvador bans gay marriage and adoption rights

From Maggie van Vogt at Narcosphere, the following post describes the abrupt push by the Catholic Church and rightist parties in El Salvador to ban gay marriage, seemingly to embarrass the left party FMLN which holds the presidency, even though marriage rights were not a priority for the LGBT movement there. Sounds eeriy like the Republican playbook, when DoMA was muscled through Congress in the summer of 1996, forcing Clinton to sign or veto just before his re-election campaign.  HT: Lisa Duggan

After weeks of public debate and protest, [last week] El Salvador’s Legislative Assembly approved an amendment to the constitution to ban marriage between same-sex couples and same-sex couples’ ability to adopt a child.  This amendment was proposed in the final hours of the current Legislative Assembly session, which ends April 30th.

“Marriage is only for men and women, born that way.  It remains consecrated in our country that this is not possible for same-sex couples,” (El Diario de Hoy, 30 April 2009) announced Rodolfo Parker, the major proponent of the amendment.

In the period of time leading up to this ratification, the amendment lacked 4 votes to pass.  Those votes needed to come from deputies of the leftist Farabundo Martí National Liberation Front (FMLN).  On Monday, April 27, the party announced that it would not support the amendment because of concerns that it was discriminatory.   The wording of the amendment was negotiated to include the phrase,  “The State shall foment marriage, but the lack of it will not effect the enjoyment of the rights established by law,” after which it attained the number of votes needed to pass.

Politicians have experienced pressure from The Church to ratify the amendment.  Various Catholic and Evangelical leaders publicly targeted the FMLN for not supporting the amendment, particularly San Salvador’s Archbishop José Luis Escobar Alas.  On April 20th Alas presented the Assembly with 300,000 signatures in support of the reform and has made various public statements urging the FMLN to cast the necessary votes for it to pass....

LGBT activists, who have focused their work on providing education, services, and human rights accompaniment to LGBT Salvadoran, immediately mobilized in response.  

The Alliance for LGBT Diversity, a network of Lesbian, Gay, Bisexual, and Transgender individuals and organization has organized a variety of protests, press conferences, vigils, and written a counter amendment proposing the expansion of Article 3 of the nation’s constitution to include sexuality, gender identity, and disability in the non-discrimination clause....