# The District of Columbia and Gay Marriage.
**URL:** https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512
**Category:** Great Debates
**Created:** [December 16, 2009, 7:32pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512 "2009-12-16T19:32:09Z")
**Posts on this page:** 12
**Page:** 5
### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [December 18, 2009, 3:19pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/81 "2009-12-18T15:19:39Z")
> [@Mr.Moto](#):
>
> There are some exemptions present in the ADA - the cite is obviously the law in question. The ADEA does not seem to have similar provisions - I would assume that this is not much of an issue, but if it ever came up the religious organization would have a First Amendment claim.
Under what precedent? By that I’m looking for an example of courts reading in a religious exemption to anti-discrimination laws when none is present in the legislation itself.
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### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [December 18, 2009, 3:57pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/82 "2009-12-18T15:57:54Z")
> [@villa](#):
>
> Under what precedent? By that I’m looking for an example of courts reading in a religious exemption to anti-discrimination laws when none is present in the legislation itself.
Not necessarily religious - other First Amendment protections also apply. And the _Dale_ decision is especially applicable here.
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### Author:  [@The\_Lurker\_Above](https://boards.straightdope.com/u/The_Lurker_Above)
#### Post date: [December 18, 2009, 5:01pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/83 "2009-12-18T17:01:55Z")
> [@Bricker](#):
>
> So the laws of the Church are quite clear. It’s true that, if investigated, a Vegas quickie wedding may reveal itself to have been lacking some essential element, such as consent. But no one may undertake to challenge the validity of the marriage except the spouses themselves, or, as Can. 1674 provides, competent authority _when the nullity of the marriage has already been made public, and the marriage cannot be validated._
>
> So here’s where you miss the Catholic boat: all those other marriages could be valid; the Church doesn’t know and doesn’t inquire, except if the question is raised. A same-sex marriage by its nature is invalid, its lack of validity is public, and that is the distinction.
You seem to be suggesting that the only difference is that the lack of validity is obvious to anyone who sees the couple in question. So two questions:
1. Does the section in italics actually happen here? Has there ever been a case where a sacramentally invalid marriage between opposite sex spouses was obviously invalid enough to a competent authority that spousal benefits were refused or cut-off. And what would that take, the employee complaining about having to get a divorce before their current marriage? The couple marching down the street wearing signs saying ‘I divorced and then remarried’?
2. Could I, as a hypothetical employee of Catholic Charities in DC marry ‘Pat’. Never mention their sex, bring pictures in, or have anyone that would count as a competent authority meet Pat and get spousal employee benefits for them? The (possibly) sacramentally invalid nature of our marriage should never come up if there truly is a don’t-ask-don’t-tell policy in place.
Because as an outsider it seems to be that the church’s real policy is ‘Sure, now that you mention it, we don’t _like_ giving spousal benefits to our employee’s spouses if they’re not in a sacramentally-valid marriage. But we’ve never cared enough to do anything about it. But queers?? No way are we giving benefits to them!’
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [December 18, 2009, 5:07pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/84 "2009-12-18T17:07:13Z")
> [@Mr.Moto](#):
>
> Not necessarily religious - other First Amendment protections also apply. And the _Dale_ decision is especially applicable here.
I don’t think _Dale_ is. If I am not misreading this totally, the Catholic Chuch isn’t saying “we won’t hire homosexuals” it is saying “we don’t want to give the spouse of a homosexual employee the same benefits as the spouse of a heterosexual one.”
_Dale_ was about freedom of association. It was seen as contrary to scouting’s mission (the inculcation of certain values) to have gay members. The Catholic church isn’t in that situation here. They have already ‘associated’ with gay people.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [December 18, 2009, 5:16pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/85 "2009-12-18T17:16:51Z")
> [@The\_Lurker\_Above](#):
>
> You seem to be suggesting that the only difference is that the lack of validity is obvious to anyone who sees the couple in question. So two questions:
>
> 1. Does the section in italics actually happen here? Has there ever been a case where a sacramentally invalid marriage between opposite sex spouses was obviously invalid enough to a competent authority that spousal benefits were refused or cut-off. And what would that take, the employee complaining about having to get a divorce before their current marriage? The couple marching down the street wearing signs saying ‘I divorced and then remarried’?
It’s happened in canon law tribunals, but never, so far as I can tell, involving an employee benefits issue.
It’s worth pointing out, too, that a person who obtains a civil divorce and then remarries is presumptively committing adultery, because the prior marriage is presumed valid. But if that person subsequently obtained a decree of nullity, then there was no adultery; the decree shows that, despite that presumption, the former marriage was never valid at all. In other words, even in the case of a divorced and remarried person, it is possible that the only sin involved was the failure to follow Church process.
> [@](#):
>
> 1. Could I, as a hypothetical employee of Catholic Charities in DC marry ‘Pat’. Never mention their sex, bring pictures in, or have anyone that would count as a competent authority meet Pat and get spousal employee benefits for them? The (possibly) sacramentally invalid nature of our marriage should never come up if there truly is a don’t-ask-don’t-tell policy in place.
Without being too specific, I am personally acquainted with a same-sex couple in a nearly identical position following a Massachusetts wedding, where one of the spouses works for a Catholic organization in the DC metro area and has the other spouse covered. Interestingly enough, the names are not even that gender neutral. It’s hard to give a flavor and not say the names themselves, because opinions will differ, but I think two reasonable aliases are Lynn and Frances, with Frances the employee. There are men named Lynn, but it’s not common. (This should not be taken as a statement that the couple are female, just that the names are similar in flavor to the names involved). This couple has been in this employment/insurance position since mid-2006. Their only insurance problem has been a temporary denial of benefits after the insurance company raised a question about other coverage from Lynn’s other job.
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### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [December 18, 2009, 5:19pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/86 "2009-12-18T17:19:23Z")
> [@villa](#):
>
> I don’t think _Dale_ is. If I am not misreading this totally, the Catholic Chuch isn’t saying “we won’t hire homosexuals” it is saying “we don’t want to give the spouse of a homosexual employee the same benefits as the spouse of a heterosexual one.”
>
> _Dale_ was about freedom of association. It was seen as contrary to scouting’s mission (the inculcation of certain values) to have gay members. The Catholic church isn’t in that situation here. They have already ‘associated’ with gay people.
But hiring isn’t the only decision affected here - the provision of benefits is also at issue. And for better or worse religious organizations typically have more latitude in this area than other employers specifically because the First Amendment comes into play.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [December 18, 2009, 5:32pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/87 "2009-12-18T17:32:47Z")
> [@Mr.Moto](#):
>
> But hiring isn’t the only decision affected here - the provision of benefits is also at issue. And for better or worse religious organizations typically have more latitude in this area than other employers specifically because the First Amendment comes into play.
Well, hiring isn’t what is being discussed at all. This is about a religous organization that has (in the employment arena, which is treated very differently to the sort of voluntary situation being discussed in _Dale_) already chosen to associate with homosexuals, and then is wondering whether it can discriminate in something more minor - the payment of benefits, not to the homosexual employee, but to the spouse of that employee. You simply are not going to be able to shoehorn that into _Dale_, which was based on freedom of association, a right which isn’t at stake here.
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### Author:  [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)
#### Post date: [December 18, 2009, 5:46pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/88 "2009-12-18T17:46:09Z")
> [@villa](#):
>
> Well, hiring isn’t what is being discussed at all. This is about a religous organization that has (in the employment arena, which is treated very differently to the sort of voluntary situation being discussed in _Dale_) already chosen to associate with homosexuals, and then is wondering whether it can discriminate in something more minor - the payment of benefits, not to the homosexual employee, but to the spouse of that employee. You simply are not going to be able to shoehorn that into _Dale_, which was based on freedom of association, a right which isn’t at stake here.
Certainly that right is at stake, as rights of association can turn not only on who an organization hires but other transactions. And let’s keep in mind that James Dale was an adult Scoutmaster - a position akin to an employee since the Scouts rely on volunteers.
Since we have established that that right exists, it certainly does not make sense to posit that it exists to a lesser degree than fully. To say the Church has the right to not hire a homosexual but does not have the right to make coverage decisions based on homosexuality - that’s nuts.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [December 18, 2009, 5:59pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/89 "2009-12-18T17:59:07Z")
Have you read _Dale_, **Mr. Moto**?
In the first place, the distinction between volunteer and employee is a major one in legal analysis. Secondly, _Dale_ was based on the BSA’s claimed view that association with homosexuals was contrary to its values and purpose. Therefore it chose to not associate with homosexuals. Do you not see a fundamental difference between saying that, and saying "we are OK with associating with homosexuals, with even paying salary and benefits to homosexuals, to associating with homosexuals who are married, to paying benefits to employees who are married and homosexual, but we are not OK with paying benefits to the spouse of the homosexual with whom we have chosen to associate…’
It just doesn’t work under a _Dale_ analysis, and reading the case will show you that. It isn’t irrational given that case to say that you might have the right not to allow a group to join, but if you do allow them to join, you cannot discrimiante in lesser ways, because you have made clear that you don’t have a problem with associating with that group.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [December 18, 2009, 6:31pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/90 "2009-12-18T18:31:21Z")
> [@jayjay](#):
>
> That’s not what’s happening here. What’s happening here is that the DC City Council is deciding what _its contractors’ duties to their employees under DC non-discrimination measures are_. Also, what agencies contracted to the DC city government may or may not do to discriminate against those agencies’ clients.
>
> It all comes back to the fact that IF discriminating against homosexuals is more important for the Church than ministering to the poor and helping orphans or adoptees to find good homes, then the Church is welcome to step off. They have a choice…no one is forcing them to do anything.
>
> The fact that doing what they actually WANT to do makes them look like rigid, uncaring assholes isn’t the DC City Council’s fault.
But isn’t that just taking an end run around the freedom of religion issue? Could East Bumfuck, AL pass a city code saying that their contractors must be Christian owned businesses, and then when someone objects, you simply point out that nobody is denying their right to worship as they please, just that if you aren’t Christian, then you do without the city money.
Just because you WANT to be Jewish or Agnostic isn’t the East Bumfuck city council’s fault.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [December 18, 2009, 6:56pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/91 "2009-12-18T18:56:44Z")
> [@jtgain](#):
>
> But isn’t that just taking an end run around the freedom of religion issue? Could East Bumfuck, AL pass a city code saying that their contractors must be Christian owned businesses, and then when someone objects, you simply point out that nobody is denying their right to worship as they please, just that if you aren’t Christian, then you do without the city money.
>
> Just because you WANT to be Jewish or Agnostic isn’t the East Bumfuck city council’s fault.
No.
At its heart, the First Amendment requires government neutrality towards religion.
When the DC City Council says, “Our contractors must behave neutrally towards religion,” they are not violating the First Amendment – even if a particular contractor is religious.
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### Author:  [@jayjay](https://boards.straightdope.com/u/jayjay)
#### Post date: [December 18, 2009, 7:22pm UTC](https://boards.straightdope.com/t/the-district-of-columbia-and-gay-marriage/521512/92 "2009-12-18T19:22:22Z")
> [@jtgain](#):
>
> But isn’t that just taking an end run around the freedom of religion issue? Could East Bumfuck, AL pass a city code saying that their contractors must be Christian owned businesses, and then when someone objects, you simply point out that nobody is denying their right to worship as they please, just that if you aren’t Christian, then you do without the city money.
>
> Just because you WANT to be Jewish or Agnostic isn’t the East Bumfuck city council’s fault.
No, it’s not taking an end run. DC is not withholding anything from the Archdiocese or its agencies. The Archdiocese has a situation (“anyone contracting with the city must not discriminate on the basis of sexual orientation, including (now) spousal benefits”), and the Archdiocese has a choice (“grant spousal benefits or don’t contract with the city”). There is no freedom of religion issue.
If the city were saying “You must grant spousal benefits whether you’re contracting with us or not”, then there is a 1st Amendment problem. But not in this instance.
The side effect of the Church looking petty and bigoted is a cultural artifact, not a Constitutional one.
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