Monday, June 21

Oh God! We Won! What Do We Do Now?

skepticIn the wake of the recent Obergefell v. Hodges decision recognizing a national right for same-sex marriage (SSM), the question that now preoccupies us – supporters of marriage equality and opponents alike – is whether businesses that oppose SSM should be granted an exemption if their opposition is based on religious objections. What I have observed in following the debate on both marriage equality itself and State-level religious freedom restoration acts (RFRAs) is a super-abundance of heat and, often, very little light and dispassionate reflection. Given the passions aroused on both sides by the debate, this is probably to be expected. It need not turn out that way. Dare I suggest that those of us who agree with the Obergefell decision can afford some forbearance and magnanimity? We need not react with or to the visceral crudity of Huckabee or Walker or Jindal, but with civility and conciliation. Toward that end, I propose taking a page out of, e.g.,  the history of the draft in the late 1960s and allowing a non-military version of conscientious objection for individuals and businesses that oppose SSM.

James Obergefell

Something about the entire SSM / State-RFRA debate had been bothering me for some time. But I was unable to put my finger on just what it was that was bothering me about the debate until – don’t ask me why -- the following thought occurred to me: if someday the draft were to be reinstated, I am sure we would allow conscientious objection just as we did in the late ‘60s … so is there not a certain anomaly in allowing people an exemption from military service, prompted by an at least alleged and ostensible threat to national security … without, for all that, allowing bakers and caterers and florists to demur from providing cakes, punch, and petunias for a same-sex wedding? I can only speak for myself, but, to me, there is something deeply and profoundly “bass-ackwards” if our moral reasoning arrives at such a conclusion. Why should taking up arms to defend one's country in a time of national emergency be, in some sense, optional – even with Pearl Harbor still in flames and the entire West Coast open and vulnerable, the Nation still allowed conscientious objection -- whereas providing flowers and church decorations for a same-sex wedding should be square-jawed-“hard-coded”-by-God mandatory, potentially on pain of criminal and / or civil penalties? Why should rifles be optional, but roses compulsory?


For a long time, I got stuck there. I believed – note the use of the past tense here! – that allowing people a religiously based exemption from providing service to same-sex weddings would set a dangerous, camel’s-nose-in-the-tent precedent that could be used to resegregate lunch counters, to resegregate housing, etc. – in short, to roll the clock back to the era before Brown v. Board of Education in 1954 – all justified by “free exercise”-clause-motivated deference to the religious beliefs of restaurant owners and landlords. But then the question occurred to me: why has such a catastrophe not happened already? Having grown up with fundamentalist Christianity, I can say with certainty that many, perhaps all, fundamentalist Christians of my acquaintance were throw-an-embolism apoplectic when the 1964 Civil Rights Act, under Title II, forbade all discrimination by race in “public accommodations”. On religious grounds, they opposed all – this was the term at the time – “race mixing”.

Suffice to say that, yes, the fundamentalists of my teen-age years did and do have a fundamental right to believe as they wish regarding race and “race mixing”. (Note my careful use of the word "believe".  When subjective beliefs eventuate in objective criminal acts -- lynchings, cross-burnings, church-dynamitings, voter intimidation, etc. -- then we are in different territory.) But that is only half the story. The Nation has rights, also, and one of those rights, under Article I, Section 8, paragraph 3, is the regulation of interstate commerce by the Congress. Congress has a corresponding responsibility to ensure the smooth and seamless flow of commerce across State lines – a goal that cannot be attained if African-American businessmen and employees are required, while on business trips, to go out of their way and to drive all over Hell’s-half-acre searching for a place to stay or a place to eat or a place to buy gas for their car. Fundamentalists do have a fundamental right to believe as they wish, but the Nation-as-a-whole has a supervenient “compelling interest” in the free flow of commerce. Because the latter affects the entire Nation – fundamentalists included, but also everyone else – the latter takes precedence over the former. So whatever State RFRAs were to be enacted – assuming they are constitutional in all other respects – there need be no fear that 21st-century civil rights activists would have to stage lunch-counter sit-ins, get maple syrup and hot coffee poured on them, etc., as they did back in the early ‘60s. Title II of the 1964 Civil Rights Act would still stand – because the justifying principles and rationale would remain untouched and in effect. In that sense and to that extent, nothing would change.

Rainbow flag flies in the Castro.

This brings me to my one serious reservation ... well ... OK ... maybe two serious reservations ... about allowing a non-military version of conscientious objection as the basis of State RFRAs. In a kind of rough-and-ready sense, the justification for Title II of the Civil Rights Act of 1964 is that, religious objections to “race mixing” notwithstanding, allowing public accommodations to self-segregate by race would inhibit interstate commerce by “Balkanizing” the economy into a fragmented collection of zones or areas: black folks are served here but not there, whites and blacks are served there but not here, etc., etc., etc. (Add in other racial / ethnic groups and the various permutations become prohibitively complex very quickly.) The Nation’s economy would end up looking like the Holy Roman Empire in the 1500s, except much more so. (Why not just cite the “equal protection” clause of the 14th Amendment and … badda-bing-badda-bang! … be done with it? Congress tried that with the Civil Rights act of 1875, but the Supreme Court struck it down in 1883, arguing – with considerable justification, given the repeated “No State shall … “ locution of Section 1 – that the “equal protection” clause was only applicable at the State level. Hence the recourse to the “commerce” clause of Article I, Section 8, paragraph 3, which is indisputably Nation-wide in scope.) Note that I phrase the following as a question, not a statement, because I do not know the answer: would allowing businesses and business owners to essentially self-segregate according to religious convictions result in the “Balkanization” of the Nation’s economy, not according to race, which would still be forbidden by Title II, but by sexual orientation … and whatever other criteria might turn out to be the subject of religious proscriptions? Remember: we are talking about more than just sexual orientation.


And therein ... maybe ... perhaps -- remember, I'm "blue-skying" here -- lies a potential solution:  tailoring State RFRA laws so as to provide "conscientious objection" in serving sexual orientation minorities, no less -- but no more.  But this brings up serious reservation number two, at which point things get very complicated  very quickly. Have sexual-orientation minorities been held to constitute a "discrete and insular minority" within the meaning of the fabled Footnote 4 of Carolene Products? (I do not know for slam-dunk certain, but I seriously doubt that sexual-orientation minorities constitute such a minority within any interpretation of the meaning of that Footnote. For example, members of that group are not identifiable by any obvious characteristics and, given recent events, one could hardly argue that sexual-orientation minorities are without political power, whatever may have been the case in the past.)  And if so, would the associated State-level RFRA laws be subject to strict scrutiny as to constitutionality in court tests? And if so, could State RFRA laws be tailored so as to survive such rigorous examination? Most laws subject to strict-scrutiny levels of judicial review do not.  So if the consequences to the economy of State RFRA laws turned out to be nil or negligible, would such laws stand the test of constitutionality?  I don't know.  I'm asking.

What I am after with all the foregoing is to resurrect the old-fashioned -- as in late-1780s -- phrase "liberty of conscience".  Early drafts of (what eventually became) the First Amendment promised "liberty of conscience" to all Americans:  no one would be compelled against their will to violate the moral principles at the core of their very souls. Yes, of course, there would be the usual "compelling interest" / "least restrictive means" limitations (as in, e.g., United States v. Lee). But the goal of such considerations was always to minimize the extent to which the state could intrude into the Holy of Holies of the individual citizen's spirit by interposing a great Curtain of legal protection between the power of the state and one's conscience. The whole point is to avoid a repeat of Employment Division v. Smith -- which was what started the entire RFRA tumult in the first place. Building that great Curtain was the goal of military conscientious objection, and it would still be a no-less-worthy goal for florists, bakers, etc. and other business owners with reservations about SSM.  There should be criteria for assessing the sincerity and permissibility of the latter just as there were for the former. But the principle would be the same in both cases. And as you can see, the air is getting very thin now.

As the Carpenters sang back in the 1970s "We've only just begun".

James R. Cowles

PS -- As I moved this post from "Draft" to the scheduler, I became aware of the cases in Portland and Denver as examples of the kind of (what I regard as) legal but invidious abuse that should not be permitted to occur in the absence of true "compelling interest" justifications -- my personal support for marriage equality notwithstanding. One could argue "scratch a conservative conscience and you will find a homophobe", but only on condition that both (a) one has comprehensive, even god-like, telepathic access to the heart and conscience of the defendant; and (b) that one is equally willing to argue "scratch a conscientious objector -- say, Gandhi or Albert Schweitzer-- and you will find a coward". Even my skepticism, omnivorous as it is, does not reach to either (a) or (b).


  • What about the First Amendment? So charitable of you to support an “exception” to accommodate the absolutely guaranteed freedom of expression and free exercise of the prejudiced morons who believe what the Church of Jesus Christ has always and everywhere believed, taught and confessed regarding the nature of marriage. What admirable forbearance.

    • The First Amendment is precisely my concern, as you will realize if you re-read my post. Part of the First Amendment is the “free exercise” clause, which gives religious groups the right to practice and to express their beliefs, subject only to the usual “no-false-yelling-of-fire-in-a-crowded-theater” limitations. I agree with your characterization of LDS. But the government cannot — because of the First Amendment — limit the “free exercise” rights of ANY religious group based on invidious judgments like being “prejudiced morons”. What if the next group of people judged to be “prejudiced morons” were atheists, agnostics, and skeptics? Should THEIR “free exercise” rights be curtailed?

      As I said in the post, which I recommend you read again, the only justifiable limitations on “free exercise” are those, like inhibiting interstate commerce, that infringe on some “compelling interest” of the society as a whole, and even then such limitations must be the “least restrictive means”. This is not allowing the “prejudiced morons” to run rampant. It is standard practice in constitutional law vis a vis fundamental rights.

      Yes, it is “admirable forebearance”. The downside of having a polity founded on a Constitution that respects individual rights is that, to some significant extent, we have to put up with the whack-jobs and propeller-beanie wearers. The RFRA / religious exemption issue is one of those areas where disagreement with what others say does not free us of the obligation to defend their right to say it.


      • The Bob Jones case is ample precedent to justify denying charitable status to any religious group that doesn’t get its mind right on “marriage equality.” Your admirable willingness to go slow with extending Obergefell will not be shared by the homosexualists. They’ve only just begun.

        My problem with your approach is the “conscientious objection” analogy. You begin with the same assumption as Justice Kennedy in the Windsor case: any objection to same-sex marriage is can only be the result of irrational animus. The First Amendment requires that we allow these bigots their bigotry, because gays are (not yet) a suspect classification and their bigotry is therefore not invidious.

        Reasonable persons can disagree over the wisdom of a public policy that limits marriage to a single man and woman. Reasonable persons can also disagree with the proposition that homosexuality is innate. That’s why the Obergefell decision belongs on a jurisprudential dung heap along with Dred Scott and Roe v. Wade.

        Jim Lung, Greensboro, NC

    • “The Bob Jones case is ample precedent to justify denying charitable status to any religious group that doesn’t get its mind right on “marriage equality” …

      You’re talking apples and oranges … “Denying charitable status” to BJU is not the same thing as infringing on BJU’s right to believe and teach according to its religious convictions. Frankly, the government could lift the tax exemption and all tax advantages for all religious institutions tomorrow without, for all that violating, either of the “religion” clauses of the First Amendment.

      “You begin with the same assumption as Justice Kennedy in the Windsor case: any objection to same-sex marriage is can only be the result of irrational animus.”

      I make no such assumption about the origin of objection to SSM … any more than I presume to assess the motivations of anyone applying for CO status. The former may be camouflage for homophobia — or not; the latter, camouflage for cowardice — or not. It is POSSIBLE for someone to object to SSM on the basis of sincere religious conviction. It is POSSIBLE for someone to object to combatant military service on the same grounds. Unless we are willing to say a priori — as I am NOT — that anti-SSM people are perforce homophobes and that all pacifists are cowards, then due allowance has to be made for those who are not. As I understand it, there was due process for assessing the claims of both as to sincerity.

      “The First Amendment requires that we allow these bigots their bigotry, because gays are (not yet) a suspect classification and their bigotry is therefore not invidious.”

      Yes, which would, as I note in “potential objection number 2”, be a game-changer. But to get to that point you have to deal with the “identifiable-as-such” and political powerlessness issues. The latter may have been true, probably was true, at one time, but is at least eminently debatable now. Footnote 4 is not going to simplify matters, realistically speaking.

    • Regarding a priori assumptions about motivations for conscientious objectors in both cases, I repeat:

      “One could argue ‘scratch a conservative conscience and you will find a homophobe’, but only on condition that both (a) one has comprehensive, even god-like, telepathic access to the heart and conscience of the defendant; and (b) that one is equally willing to argue ‘scratch a conscientious objector — say, Gandhi or Albert Schweitzer– and you will find a coward’. Even my skepticism, omnivorous as it is, does not reach to either (a) or (b).”


      • Of course, you correctly distinguish the Bob Jones case. You also correctly analyze the cases.

        My argument is not based upon the ever-evolving jurisprudence of our platonic guardians on the Supreme Court. I realize that they’ve conjured up all kinds of theories, emanations, and three-part analyses.

        My point is rather about First Things. In my Clarence Thomas world, religious liberty exists in the real world. The constituional right to homosexual sodomy does not. Your analysis presupposes the upside down world of current constituional law-making.

        I commend you for not thinking yourself to be God in evaluating the motives of your co-religionists. Justice Kennedy does not agree with you.

  • I would not want bigoted cake bakers to bake my wedding cake. However, the hardware store in Tennessee ( causes a problem, IMHO.

    I also think that the states like Arkansas and Tennessee that are passing laws FORBIDDING equal protection for those in the LGBTQIA community are horrible.

    There’s something floating around in my brain about Stonewall, segregated neighborhoods like Capitol Hill in Seattle (where the LGBTQIA flock to), recognizability (hello, you’d recognize my kids as in the LGBTQIA community in a heartbeat) and the potential for harm. Why else would the suicide rates and being bullied rates for the community be so high?

    And given the ridiculously high attempted suicide rates (and actual suicide rates) among the LGBTQIA community, especially the T portion of that community, I say that in the interest of supporting life and making sure people live, allowing people to post signs like idiot Tennessee hardware store and to deny business is tantamount to flying the confederate flag. Maybe it should not be illegal, but it should definitely not be on state-sponsored-land.

    • “I also think that the states like Arkansas and Tennessee that are passing laws FORBIDDING equal protection … ”

      Yes, which is why such State-level RFRAs need to be vetted as to constitutionality. Laws like in TN and AR are explicitly violative of the “equal protection” clause of the 14th Amendment.

      I see this whole issue as a replay of cases like “Employment Division v. Smith” (woman who smoked peyote as part of a religious ritual was fired for drug use … overturned) and “Sherbert v. Verner” (unemployed worker who turned down a job that would require her to work on her Sabbath — I think she was 7th Day Adventist — was denied unemployment comp … overturned). More than likely, a case is going to end up before a Federal appellate court — ultimately SCOTUS — in which a business owner was penalized for NOT serving an LGBTQ customer (catering a wedding or whatever) in conformance to religious beliefs. Absent some “compelling interest” justification, I think it will play out like “Smith” and “Sherbert”: the court will uphold the business owner’s “free exercise” rights.

      There was such a “compelling interest” in the case of African Americans — the “commerce” clause issue I referred to — but it would be difficult to make an analogous “commerce”-clause argument in the case of LGBTQIA people because, unlike African-Americans (especially in the South), they make up some single-digits percent of the population. OTOH … do we really KNOW that, or does the proportion of sexual-orientation minorities in the population only APPEAR low because, out of fear, they remain “closeted”?

      And, as you say, you can make the case that the sign in the store in TN is NOT protected speech because of its social / psychological consequences.

      • Your invidious characterization of “CloakedMonk” aside, to me it is a matter of the confluence of the “equal protection” clause of the 14th Amendment and the “establishment” clause of the First, with considerable help from the “free exercise” clause of the latter.

        It is necessary up front to realize that, because of the latter, there is and can be no such thing as a “secular theology” of marriage. Or a “secular theology” of anything else. In fact, the phrase “secular theology” is itself an oxymoron, because the “establishment” clause gets the government out of the religion / theology business, as well as the business of assessing theological bases for social practices like marriage. From the standpoint of civil law, therefore, marriage is just another type of contract, not essentially different from a contract with Verizon for cell-phone service or a contract with a gardening company to mulch one’s lawn. So asking if gay people should have the right to enter into the contract known as “marriage” is like asking if gay people should have the right to enter into the contract known as “cell-phone service” or “lawn-mulching”. I.e., there is no religious dimension. Given that, the “equal protection” clause mandates that all types of contracts, including marriage, be available to gay people who are otherwise competent to enter into same. From the standpoint of con law, asking about the religious dimension of marriage is like asking what color the square root of 2 is. There is a religious dimension to marriage for most people, but the religious dimension of marriage is within the exclusive ambit of religious organizations, not the government. This is a point that I have never — as in “not one single time” — managed to get across to conservative / evangelical / fundamentalist people with religious objections to SSM, who seem to want to “religionize” everything.

        So if that is what Mr. Justice Kennedy believes about SSM objectors, he is wrong. But the question of whether he is right or not is utterly irrelevant to arguing the merits of the constitutional issue at hand.


    • BTW … I’m not familiar with the exact language of those anti-protection laws, but in light of “Romer v. Evans”, which struck down anti-protection / Amendment 2 in CO, forbidding the extension of special protections to LGBTQIA people, the constitutionality of those laws would probably be dubious … and for the same reason.

  • I think there are certain areas of the economy — regardless of race, gender, sexual orientation, or any other extraneous consideration — in which the state has a “compelling interest” that there be no discrimination, even for religious reasons. One is housing. Housing should be available to all, irrespective of race, gender, sexual orientation, etc, because the state has a “compelling interest” in seeing that everyone can obtain housing. (BTW, such a housing policy would also prohibit invidious discrimination in the form of banks “red-lining” certain neighborhoods … or certain groups like LGBTQIA people.) Another is employment, and for the same reason. Ditto health care and health insurance. There will be disagreements over what those areas of the economy are, but all would have in common that any undue difficulty in obtaining housing, employment, health care, health insurance, etc., would have an adverse impact on the economy or some other adverse impact not connected with religious objections. “It pisses off Jesus” would not be a viable defense against charges of discrimination in these areas.

    That said, there could nevertheless be “carve-outs” for areas that are less critical, and where “free exercise”-clause rights could enable people to demur for “conscientious-objector”-like reasons, e.g., catering gay weddings, doing photography for same, etc., etc. There could be some interesting grey areas, even so. E.g., would churches be liable to charges of discrimination if they declined to hire a janitorial company owned and operated by a gay / lesbian couple to sweep, clean, shampoo carpets, etc.? Are janitorial services a “protected area” of the economy like in the first paragraph, and if so, would making the church liable for not hiring a gay-owned janitorial business violate the church’s “free exercise” rights?

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