Sure, the Constitution guarantees freedom of religion but that freedom has many restrictions. I couldn’t sacrifice babies to Baal, for instance. I’d be in breach of the law and my pleas of religious freedom would fall on deaf ears.
But there are other laws which protect individual rights. I can’t refuse to sell my house to a black man because of his color. I can’t refuse to bake a cake for a gay couple because they’re gay. And yet churches are allowed to refuse their gay parishioners a church marriage? What happened to equality there? The law jumps fiercely on the baking of cakes but turns a blind eye to one of the most important ceremonies in a person’s life?
Oh, but a gay couple can marry in a secular ceremony or change their religion to one that is more accepting. But if they are devout Roman Catholics why the hell should they be forced to repudiate their faith?
Isn’t it about time we forced religions to obey the same laws as the rest of us?
I’m Mormon, and my church will deny a temple wedding to members of the religion for all sorts of reasons: drinking coffee, smoking, not paying your tithing, fornication, etc. It’s their church and they get to set the rules.
In the US there are several different categories of organizations. For example, while the government is generally not allowed to censor speech because they dislike the content of that speech, private businesses, like Facebook, Twitter, or the Straight Dope, can, and do. So you’ve got differences there between “public” and “private” entities. There are nuances amongst private entities as well. “places of public accomodation”, like businesses, generally have less rights to restrict or prohibit people than do more private organizations like clubs with memberships, or private homes. as a rule of thumb, religions get some of the broadest protections, largely because of the First Amendment, although as you pointed out, even these are not unlimited.
Should we force churches to marry people they don’t want to? Or force priests and pastors to perform marriages for people they’d rather not marry? I don’t think so.
I am not a lawyer, but as I understand it, the difference is whether the church is a business and whether there is money involved. If the church is charging a fee for conducting wedding ceremonies, then it is a business and cannot discriminate, but if it is not charging a fee, then it is not and is perfectly free to conduct or not conduct weddings for whomever it pleases, regardless of sexual orientation.
By the way, many churches won’t do weddings for polygamous marriages; where’s the equality/inequality there?
Incidentally, the topic of religion came up in another SDMB thread. Someone was saying that it was bigoted to be prejudiced on the basis of things that are intrinsic; such as race, gender, etc. Others then pointed out, what about religion, which is a matter of choice?
There were those who tried to thread around by saying that religion is a matter of choice, but it’s also a matter of intrinsic identity, so it should be considered the same as race, gender, etc. That then led to a quandary: Muslims and anti-gay Christians are lumped together in the religion, “intrinsic” category. Should one oppose both Muslims and anti-gay Christians? Or should one excuse/defend both Muslims and anti-gay Christians?
Religion isn’t the sole area in which you can discriminate. For one, sexual orientation, gender identity, and various other aspects of a person are not Federal protected classes for most purposes (not on par with race, gender, age, disability or veteran status–which are Federally protected classes.) Supreme Court rulings have extended some protections to these people (like in Obergefell v Ohio), but broadly speaking you can still discriminate against them as a matter of Federal law.
I can refuse to rent a residence to a gay person, solely because he is gay, as long as my State or locality doesn’t prohibit it. Many States and localities have prohibitions against this, but many (particularly in red states) do not.
Further, freedom of association allows broadly for the formation of private clubs and groups which can be as exclusionary as they want, as long as that club doesn’t develop into a de facto public accommodation.
I can also, under the freedom of the press, establish a newspaper that only reports on stories involving white people, no matter what. The courts and the government cannot tell me I cannot discriminate in story selection because it infringes on the freedom of the press.
The first amendment rights often must be weighed against one another and against societal interests. When it comes to religion, the rights-weighing we’ve chosen is that on matters of faith the State will take no position–because the State cannot adjudicate religious belief. For that reason liturgies, rituals and et cetera of a religion are generally outside of government scrutiny.
Why are enshrined beliefs special? The liberty a citizen may exercise is between him and the State, why is it relevant at all how many others have that belief? Does the 1st Amendment kick in when you get enough people to agree with you?
The default is that you (and me, and everyone else) are free to discriminate.
(And we do. For example, I will only date people of one particular gender, which is clearly discriminatory on the grounds of gender. I will not date people who are under a certain age, which is discriminatory on the grounds of age.)
Occasions where discrimination is legally forbidden are the exception, not the rule. We have laws which forbid discrimination on specified grounds (and not on any other grounds) and in specified circumstances (and not in any other circumstances). And even where we do that, these restrictions are peppered with exceptions so that, e.g., elementary school admission decisions can take your age into account, which would be unlawful if there were a general prohibition on discrimination on the grounds of age in public accommodations.
The constitutional free exercise guarantee makes it a slam-dunk that religious practice should not by constrained by anti-discrimination laws. There’s nothing fundamentally anomalous about this, such such non-constraint is the default legal position.
Actually it does. If my religion demands that I rob banks, think I won’t be arrested? If it requires me to spit in the face of non-believers, will I be given a pass? If I worship Priapus and in his holy name am duty bound to dispay my erect penis in shopping malls, won’t the state tell me in no uncertain terms that religion or no religion I’m breakng the law?
In other words freedom of religion does not give you a license to disobey the laws of the land. Of course the state can tell churches how to practise their religion if that practice involves breaking the law. But the dicrimination law doesn’t apply to churches! That’s my whole point. Why shouldn’t it? Yes, I personally am free to discriminate but churches, although private institutions, serve the public and parts of that public face the most outrageous discrimination.
Consecration of a sacramental matrimony is a rite of the religion. In places like the USA it has been legally allowed to incidentally include the officialization of a civil marriage within the same event – the priest(ess)/minister/rabbi still has to sign a government-issued license. THAT is where people got hung up in the lead-in and are getting hung up in the aftermath.
Now contrary to, say, human sacrifice, in this society this is already limited to involve willing participants who agree to abide by the doctrines of the religion (and the RCC, CJCLDS and other such are not democratic bodies, the parishioners don’t get to demand that they change the doctrine to suit them) and the forms of the ritual matrimony do not violate the civil restrictions (voluntary[including of sound mind], monogamous, of age, non incestuous).
All through the marriage equality struggle we argued and insisted that we were only dealing in the civil realm, and that no, there was no need to worry, we did not in any way shape or form intend for religious institutions to be* forced *to perform weddings contrary to their doctrine.
Now we’ve got people asking why can’t do just that, or at least punish the churches (take away their tax and protected-classification status) if they don’t. Because, I suspect, many people actually won’t be satisfied until religion qua religion IS divested of its privileged position, because, Religion, Bad! Or else they just are the type who believe justice = payback and want to spit the face of their former opressor.
The straighforward solution to this, that has been done in other places but that alas may be a nonstarter in the USA, is to legally segregate sacramental matrimony from civil marriage. This is already the legal reality – you can be wed at St. Patrick’s by the Cardinal himself and that will mean *nothing *to your tax and pension and healthcare status, without the signed license issued by civil authority – but since it happens at the same time, people think it’s one and the same thing. The churches could *already *have ministers/priests just refuse to process civil licenses and merely limit themselves to consecrating the matrimony. So we may have to explicitly *mandate *that the legal civil status of marriage is one that is officialized at the Courthouse, and that the religious ritual of Matrimony is purely a sacramental rite with no civil legal effect. Good luck.
The point is, as others have illustrated, you’re making a false equivalence here. There’s a pretty broad difference between a religion requiring specific acts and what is essentially free association. If a particular religion requires human sacrifice, that the government doesn’t allow them to do so isn’t them quashing their right to practice religion as much as it is balancing that against the right to life of whatever individual they might kill. And this is the same as along the sorts of examples you gave, stealing, public indecency, etc.
What religions that discriminate are doing is more along the lines of like a fraternity/sorority refusing to accept members outside of whatever gender they accept. It fundamentally goes against the purpose of a fraternity to legally force them to accept women, and the same for a sorority forced to accept men. It defeats the concept of free association because by forcing them to accept someone, you’ve forced the many (members of the group) to give up the same right you’re trying to grant the individual, so it’s a net loss. I think this is comparable to religious protections, except even more strongly protected precisely because it is explicitly stated in the First Amendment.
Now, to a certain extent this does get fuzzier in certain situations, but it still seems pretty clear to me in a situation like a marriage. Yes, it is a state function but it is also a religious one. Everyone can (and imo should) marry whomever they like, but if that goes against the religious doctrine, especially given that there are other equivalent alternatives, that doesn’t seem like a great trade-off. However, like with the baking of the cake, you’re not forcing a whole congregation, it’s just an individual, and just asking someone else to do it isn’t necessarily going to be equivalent (baking is an art, after all).
And you might make an argument that someone might be a devout follower of that faith, but really, how can one be a devout follower of a belief system and still be or do something that is fundamentally at odds with it? I am a theist, but I’m not religious, nor am I gay, but if I were, I’d be looking for a church that celebrated and corroborated my beliefs and my very nature. Hell, there are churches that refuse weddings or other sacraments for all kinds of things. I don’t agree with many of those reasons, hence why I’m not a member of those religions/sects, but I do believe keeping the government out of religious practice as much as possible is every bit as imperative as the reverse.