OTHER RIGHTS AT STAKE?: Barry Deutsch replies to Anthony R. Picarello, Jr.

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.

"First, as employers, educators and service providers, religious institutions often provide special benefits to married couples. But if those benefits aren't now extended to legally married gay couples, discrimination claims will soon follow."

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.

"Second, resisting churches may face targeted exclusion from public facilities, public funding streams and other government benefits. [...] For example, religious groups have already been excluded from public contracts. New York City has passed a law requiring any contractor doing more than $100,000 in business with the city to extend health benefits to same-sex domestic partners. Groups such as the Salvation Army--which has provided the city with millions in contract services for the needy--will be excluded from participation in those contracts because of their religious convictions."

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.

"Pennsylvania's hate crimes law has been amended to add the crime of 'harassment by communication' and the impermissible motive of 'sexual orientation.' As a result, hate crime prosecutions could be based on speech alone, and could include speech reflecting perceived 'animus' against homosexuality--such as preaching against gay marriage. This isn't as far off as it may seem: Following similar cases in Europe, Canadian officials have recently used similar laws to target religious preaching against homosexual conduct as 'hate speech.'"

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. ...

"Finally, objecting religious groups could be stripped of the marriage licensing function. A Massachusetts justice of the peace was forced to resign because she could not in good conscience perform same-sex marriages. What are the implications for priests, rabbis or other religious ministers who are also authorized by the state to witness legal marriages, but who object to performing gay marriages? It is, of course, exceedingly unlikely that local governments could ever force religious ministers to perform same-sex marriages. It is likely, however, that government could force a choice: Either agree (like all others who hold state authority to solemnize marriages legally) to perform gay marriages, or relinquish that authority."

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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posted by Eve at 6:14 PM | Link |

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