Over on Marriage Debate.com (and in a slightly longer pdf version on his organization’s website) Anthony R. Picarello, Jr. argues that same-sex marriage might be bad for free speech. He makes four points.
So what? Under current law, if a Catholic Church hires a divorced and remarried woman to be a teacher, they cannot legally choose to refuse her spouse the medical plan they extend to the spouses of all the other teachers.
Religious employers have a right to not be discriminated against because of their religion. They don’t have a right to ignore the same laws that all businesses, religious or not, have to obey.
Again, so what?
No one is denying the Salvation Army the right to their religious convictions. However, neither the Salvation Army, nor anyone else, has a right to be free of all consequences for their decisions.
Voters are free, through their elected representatives, to set up rules regarding who the government will and won’t sign contracts with (within Constitutional limits; voters are not free to make a “this city will never contract with Jews” law). All employers – religious or otherwise – can set their hiring rules so that they qualify for government contracts, or not. But when the Salvation Army or any other employer freely chooses hiring rules which exclude them from government contracts, then that’s their own decision, and they’ve freely chosen to suffer the consequences.
In this point and his previous point, Mr. Picarello isn’t calling for free speech for the Salvation Army. In effect, he’s calling for religious employers to be given an absolute pass from employment law. But enforcing the law exclusively against atheist and secular employers isn’t non-discrimination; it’s discrimination against secularists and athiests, which is just as wrong as discrimination against the religious.
It would certainly be wrong if anyone was found guilty of a hate crime just for preaching against gay marriage. But that will never happen in the United States, which – unlike Canada and Europe – has a strong First Amendment guarantee of free speech.
There is a long list of Canadian and European style hate speech laws which have never been made law in the US, because the First Amendment prevents such laws. There is no reason to suppose this will stop being true when same-sex marriage is made legal.
In Massachusetts, Justices of the Peace don’t have a legal right to turn down legal marriages, any more than county clerks have the right to refuse to issue legal marriage licenses. That’s because they’re government functionaries; their job is administrating marriage policy, not picking and choosing who can legally be married.
In contrast, a member of the clergy is free to refuse to solemnize any marriage for any reason. That’s because a rabbi or minister or whatever is not a government employee administering the law; they’re primarily acting as a representative of their religion, which is not a governmental organization.
To bring a real-world example in, Justices of the Peace in Massachusetts can’t legally refuse to perform an interfaith wedding just because they personally disapprove. In contrast, many Rabbis refuse to officiate at weddings between Jews and non-Jews. If Mr. Picarello’s legal theory were correct – if clergy didn’t have more freedom to discriminate than Justices of the Peace (and county clerks) – then Rabbis would have long ago been stripped of the right to solemnize marriages in Massachusetts. Unsurprisingly, Mr. Picarello’s theory is wrong, and Rabbis continue to have the right to choose.
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UPDATE: Some readers may feel I’m overstating the case when I say Mr. Picarello is in effect “calling for religious employers to be given an absolute pass from employment law.” After all, it is only employment law as it relates to a religious belief that religious organizations would seek exemption from.
But any church or religious organization is free (and should be free!) to decide for themselves what is and isn’t a religious belief. Suppose the Phillipine church (some say cult) Iglesia Ni Cristo opened up a location in Oregon – should their religious belief that labor unions are wrong buy them freedom from labor laws?
Suppose the Vatican decided that the minimum wage was wrong. Should Catholic Churches be exempt from paying their employees the minimum wage?
Unless the goverment gets into the business of deciding what is and isn’t a valid religious belief – and I don’t think the goverment should be in that business – then a “religious belief exemption” to employment laws would mean, in practice, that religious employers would be able to pick and choose which employment laws they wish to follow..
and could include speech reflecting perceived “animus” against homosexuality–such as preaching against gay marriage
He knows this is false. If it were true, it would currently be possible to prosecute people for harassment for making racist statements, or for accusing Catholics of being bad citizens, or saying women ought to be kept barefoot and pregnant.
We already know that such a prosecution would be laughed out of court, because harassment is a specific kind of speech beyond giving an opinion. “Jews are evil and control the world” is not harassment. “You Jews take your filthy bank out of our city or we’ll run you out” may be harassment.
If his analysis were correct, then he should be delighted, because it would mean similar negative comments about heterosexuals would be illegal.
Another way around disputes like this is to simply create single-payer health insurance, taking that responsibility out of the hands of employers entirely. For other types of benefits, like life insurance, the employee can already name any person as beneficiary. Maybe religious institutions that have a problem with gay partners could push for that instead. Then everyone would get health care and they wouldn’t have to acknowledge any relationship they don’t like.
Or, they could allow the employee to name any person (say, a mother or a brother or a friend) to receive medical benefits.
Another 4 years of Dubya and the same sex marriage debate will be moot. We’ll be discussing whether the corpses of gay people are better disposed of through incineration or burial in trenches. This is truly a gang of evil, vile, murdering thieves we’re saddled with.
It’s interesting that because we don’t have civil rights laws about individuals as consumers the religious institutions can and do decide which services should be available for all. Think of Catholic hospitals and their policies about vasectomies and abortions. In fact, it’s sort of curious that the federal laws provide no protection for discrimination when we act in the role of consumers.
Maybe this is what should be corrected, rather than a further reduction of the protections via the manipulation of employment protections?
Um, Steve? What’s wrong with you?
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