primitives discuss religious protections in New York gay "marriage" bill

[franksolich]

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x1361212

Oh my.

MineralMan  (1000+ posts)        Sat Jun-25-11 10:58 AM
Original message
 
About the religious protections in the NY same-sex marriage bill.

I've been thinking about the parts of the bill that make it possible for religious people and organizations to refuse to perform these marriages. It was written in a way that assures that if those provisions are negated by a court, the whole bill is lost. That was causing a lot of people to worry. I don't think there is any need for worry on that account.

I think it was written that way to prevent those in support of same-sex marriage from selectively getting those provisions tossed by a court. It's a way for the Republicans to make sure that those provisions will stand. I can't imagine that any group will challenge the bill on that basis, so I think it's safe.

Of course, the provisions were unnecessary, since nobody can be forced to perform marriage ceremonies or to allow their facilities to be used. That's been the case all along. Churches have always had the right to refuse to marry any couple, for whatever reason. The Catholic Church does it all the time. There are so many other ways to get married than in one, specific church and by one specific minister that there's no real reason for a challenge.

That's how I see it, anyhow.

yardwork  (1000+ posts)      Sat Jun-25-11 11:21 AM
Response to Original message
 
1. Reserving church-owned property for some people but not everybody is unconstitutional.

That's the logic that allowed Jim Crow laws in the south for so long. It's wrong. The fact that New York has plenty of secular venues for gay couples to choose does not negate the fact that that provision is wrong.

I guess that sooner or later somebody will challenge it.

Edited to add - we're not talking about sacred spaces. We're talking about church-owned parks and other recreational spaces that churches routinely rent for secular use.

MineralMan  (1000+ posts)        Sat Jun-25-11 11:23 AM
Response to Reply #1
 
3. Actually, the First Amendment pretty much protects churches from serving people they don't want to serve. There are conflicting rights in play. Churches have been doing this for years, and it's extremely unlikely that will change. No challenge on that basis would ever succeed in court. Churches are protected in believing what they believe. You wouldn't expect, for example, a Catholic church to perform a wedding for a Muslim couple, and the law would not force them to. There are many things churches are protected against being forced to do, like pay property taxes on their buildings. It's all part of the separation of church and state. It's all very well supported by legal precedent.

Besides, who would want to get married in a place that didn't want to marry you?

yardwork  (1000+ posts)      Sat Jun-25-11 11:25 AM
Response to Reply #3
 
5. I think that you are missing my point. See my post downthread.

Edited to add - I'm talking about church-owned property like waterfront parks, meeting halls, etc. Secular spaces. I predict that sooner or later there will be a challenge to this when a gay couple is refused the right to rent a secular space owned by a church.

MineralMan  (1000+ posts)        Sat Jun-25-11 11:37 AM
Response to Reply #5
 
10. Thanks for expanding.

Personally, I think it would be foolish to challenge this. It would be the very definition of cutting off one's nose to spite one's face.

A successful challenge would throw out the entire bill, thus ending the ability to marry. That would be foolish. Seriously foolish. Just my opinion.

Mz Pip  (1000+ posts)      Sat Jun-25-11 11:38 AM
Response to Reply #6
 
11. but would a Catholic Church refuse to rent its hall or garden to a Jewish couple for a reception? The Church wouldn't perform the wedding but I doubt it would object to a reception being held. I can see Churches being really selective about this.

MineralMan  (1000+ posts)        Sat Jun-25-11 11:43 AM
Response to Reply #11
 
12. Good question, but it's not really enough reason to challenge the bill and have the whole thing thrown out. Lots of halls around for weddings and receptions.

That's why the provisions were included the way they were. I believe the right to marry trumps the smaller issue to the extent that nobody will challenge those provisions. Why on earth would someone challenge and risk losing the whole thing?

I agree that it's unfair, but not as unfair as being unable to marry. I wouldn't give up the more important thing for the less important thing. But that's just me.

classof56  (1000+ posts)      Sat Jun-25-11 11:21 AM
Response to Original message
 
2. Good points, MM

Not long ago an acquaintance of mine had her pastor refuse to perform her ceremony because her husband-to-be wasn't "saved". Almost 44 years ago, my spouse and I were married by a justice of the peace. And we're still married!  Go figure...

Not sure what my point is, except that the big church/married by the clergy thing is 'way overblown and has nothing to do with the success or failure of a marriage. I'm relieved that same-sex unions are now legal in so many states, and given the divorce rate among heterosexuals, I think those who are opposed should now sit down, shut up and work on their own unions.

Tired Old Cynic

yardwork  (1000+ posts)      Sat Jun-25-11 11:25 AM
Response to Reply #2
 
4. There are plenty of churches that perform same-sex marriages. Finding them is no problem.

Nobody wants to force churches to perform religious ceremonies. That has never been the issue or even a barrier. There are plenty of clergy who are happy to perform marriages for gay couples. Happens all the time. The problem has been that the government doesn't recognize those unions as legal.

The provision that is of concern in New York is the one that allows churches to disciminate in renting their property. Churches own a lot of property that is routinely rented to non-church members for events. Allowing those churches - already tax-exempt - to disciminate against gay people is clearly unconstitutional. It's like reserving water fountains for whites only.

dipsydoodle  (1000+ posts)      Sat Jun-25-11 11:29 AM
Response to Reply #4
 
8. like reserving water fountains for whites only ?

That is an offensive comparison.

MineralMan  (1000+ posts)        Sat Jun-25-11 11:31 AM
Response to Reply #4
 
9. I see what you're saying. You may be right.

In that case, though, the provisions should still prevent challenges from occurring, since that would defeat the entire law. Which is what I said. The reason it's in there the way it is is to keep the provisions from being challenged. It's a trade-off. I say that the ability to marry pretty much trumps the church's ability to keep you from doing it in a building they own. I can't imagine that anyone would seriously consider a challenge. It wouldn't make sense. I don't think it would succeed, either.

I'm an atheist. Frankly, I'd like to see the churches stripped of all those protections. I doubt it will happen, though.

joshcryer  (1000+ posts)        Sat Jun-25-11 11:56 AM
Response to Reply #9
 
14. Oh, no, there will be a challenge, surely. But it will fail on First Amendment grounds instantly.

Religion is not the same as race or sexual orientation whatsoever. It, almost ironically (and I understand why you're an atheist on this point), by its very nature is discriminatory. And our First Amendment has given us the right to be discriminatory on those grounds.

Religious discrimination is a right.

MineralMan  (1000+ posts)        Sat Jun-25-11 12:08 PM
Response to Reply #14
 
15. Yes, most likely it would fail on those grounds. Lots of precedent out there. I don't think a challenge will come, though. It would just be foolish.

joshcryer  (1000+ posts)        Sat Jun-25-11 11:50 AM
Response to Reply #4
 
13. This will be trivial to circumvent, all a Church has to do is mandate a clergyman...

...to be present, either for pre-or-after marriage events, and not rent out services to individuals if they are not intending to use those services for marriage specifically. Once a clergyman refuses to do so (since he would be present for all marriage activities up to and including solemnization) then he is invoking the clause and the Church itself is immune from civil suits.

This is so easy to get around I believe that the OP is correct that it will never happen.

There may be a tiff here or there with a couple that wants to make money off of a Church but the lawyers will make the loophole happen very quickly.

BattyDem  (1000+ posts)      Sat Jun-25-11 12:10 PM
Response to Original message
 
16. I don't understand how they can write a law that says ... if the courts strike down PART of it, than the whole thing is null and void. How is THAT provision legal or constitutional? They vote on a bill, it gets signed into law by the Governor and, if necessary, the courts decide whether or not all or part of the bill is constitutional. That's the way it works.

By adding the "if-part-of-it-is-declared-unconstitutional-than-the-rights-are-automatically-revoked" clause, aren't they interfering in the judicial process? Courts strike down parts of laws all the time, but the remaining parts of the law are still valid and if a legislature is unhappy about that, it's up to them to revisit the issue and vote on it again. They simply can't override a Governor's signature because a legal challenge didn't go their way. I don't get it.

[Ballygrl]

Of course, the provisions were unnecessary, since nobody can be forced to perform marriage ceremonies or to allow their facilities to be used.

Yeah, A Judge would never find Religious institutions in violation of "discrimination" and force them to either do what they're against and if not they'd lose their tax exempt status.