When does “religious belief” become illegal discrimination?

Roger-Rabbit-icon1While America is a diverse society with nearly all religions represented in its population, Christianity is the predominant religion, and several branches of Christianity, especially in the south, regard homophobia not as an ugly form of discrimination but as a core element of their faith. Obviously, such beliefs, when acted upon in civil society, are prone to clash with the civil rights of others.

The belief systems of people who insist homosexuality is a chosen and evil behavior, and those born into what science recognizes is a naturally-occurring biological condition, are irreconcilable. When that happens, society has a legal and moral duty to keep the opposed groups from victimizing each other. People are entitled to their beliefs, and to express them, but as an old saw puts it, “one person’s freedom to swing his fist stops where another person’s nose starts.”

Injury can take many forms — de jure discrimination through laws and official actions, and de facto discrimination by individuals in denying services, housing, employment, or engaging in intimidation or harassment. One especially troubling form of homophobic discrimination is “gay bashing,” the practice of physically assaulting persons perceived to be gay, which came to a head with the notorious torture-murder of Matthew Shepard in 1998.

Last week’s Supreme Court ruling that same-sex marriage is a constitutional right inevitably will spawn many new legal fights. Any efforts to evade or skirt the “law of the land” by state and local officials opposed to same-sex marriage will quickly reach the courts. The legal arguments in these cases will be framed as a clash between a public servant’s right to his or her personal religious beliefs and a same-sex couple’s right to exercise their constitutional right to get married.

It’s clear to me, as a lawyer and career public servant, how the courts should resolve this particular issue. Government is supposed to be religion-neutral, and while people do not give up their personal beliefs by accepting public employment, when acting in an official capacity they must fulfill their public duties regardless of their personal beliefs. If they are unwilling to do so, the agency should replace them with someone who doesn’t suffer that incapacity.

This issue may soon come to a head in a few states where top officials are not only voicing their displeasure with the Supreme Court’s ruling, but also signaling an intention to not comply with it. That’s intolerable. The Supreme Court’s orders are the law of the land, and complying with them isn’t discretionary. Several decades ago, when Arkansas’ governor defied the Supreme Court’s desegregation decision, President Eisenhower sent federal troops to enforce it. When push comes to shove, that’s the remedy.

Today, CBS News took a closer look at several hotbeds of resistance against the Supreme Court’s marriage ruling. I’ll briefly discuss only the most salient ones.

In Alabama, the court system is ruled by an obstinate state chief justice, Roy Moore, who in 2003 refused to comply with a federal court order to remove a Ten Commandants monument from the state judicial building. That led to his removal from office by the state judicial commission, but voters elected him to that post again in 2012, and he once more rules the judicial roost in his state. Moore is a homophobe and virulent opponent of same-sex marriage, and ordered the state’s probate judges to refuse to issue marriage licenses to same-sex couples. Yesterday, his court issued a writ of mandamus suspending same-sex marriages throughout Alabama for 25 days pending further legal proceedings, although Moore himself abstained from voting on that order (probably to avoid a repeat of his 2003 disciplinary problems). The state’s governor also opposes same-sex marriage, and signaled he has no intention of enforcing the Supreme Court decision in Alabama. This makes Alabama ground zero of the resistance. No doubt lawsuits will be filed and federal courts will step in. The Supreme Court’s decision is clear that same-sex marriage is a constitutional right, issuing marriage licenses to same-sex couples is not discretionary, and states can neither prevent nor refuse to recognize same-sex marriages, so it’ll be interesting to see how the ruling is enforced against these stubborn religion-driven state officials who are determined to thwart it.

In Arkansas, whose former governor and current GOP presidential candidate Mike Huckabee blatantly called the Supreme Court decision “illegitimate” and said it should be disobeyed, the current governor (who also personally opposes same-sex marriage) said he will order state agencies to comply but asserts it applies only to states and not to churches or pastors. He suggested churches not only don’t have to perform same-sex marriages, but don’t have to recognize them, either. This is a yet-to-be-resolved issue that eventually will reach the courts.

It’s a complicated legal problem. Under First Amendment religious freedom principles, churches shouldn’t be required to perform marriages that conflict with their canons or beliefs. The Catholic Church’s position on divorce provides an obvious parallel, as Church doctrine opposes both divorce and same-sex marriage. The Church imposes canonical restrictions on divorce, and divorced Catholics must jump through certain hoops to get Church recognition of their divorce and to remarry within the Church. The Church does recognize marriages performed outside the Church, but may bar such couples from participating in certain sacraments. I don’t think courts should interfere with this, as these are internal affairs of the Church.

But the issue gets sticky where church practices intersect with government action. The granting of a tax exemption to a religious organization, for example, clearly is a governmental action. Should the IRS deny a tax exemption to a church that excludes blacks? If it doesn’t, should a court overturn the tax exemption? This same question could come up in relation to numerous other governmental actions, all the way down to granting a building permit for a church structure. People with irreconcilable views are going to take these issues to the courts, and there will be many legal fights over how far any right to discriminate against homosexuals in the name of religious freedom will be allowed to extend into civil society.

Louisiana is another state with a governor who is adamantly opposed to same-sex marriage and is running for president. But unlike Huckabee, Gov. Jindal says Louisiana must comply with the Court’s decision. I suppose that’s the difference between being an out-of-office ex-governor and a sitting governor who has to make actual executive decisions. Meanwhile, the state’s attorney general is waiting for an order making the ruling effective, and has stayed the issuance of same-sex marriage licenses for 25 days like Alabama has done. While this delay based on a legal technicality is frustrating to some, it’s probably correct, and will be mooted long before it gets to any court. But I could see a court issuing an emergency mandamus if, for example, a same-sex partner is dying and the couple wants to effectuate a legal marriage before his death, and his medical condition is such that they can’t wait for the state to come around.

Mississippi’s governor and attorney general, who disagree with the Supreme Court’s decision, similarly are waiting for a federal appeals court to lift a stay against same-sex marriages and the issues there are similar.

Texas’ attorney general denounced the Supreme Court decision and issued an opinion stating that county clerks and judges with religious objections to same-sex marriage don’t have to issue same-sex marriage licenses or perform same-sex weddings. Realizing this will be challenged in court, he promised legal assistance from his office to those who get sued, but didn’t promise they won’t be fined or sanctioned. Expanding on my comments about this issue above. I think it’s possible that courts would permit public agencies to grant their employees individual exemptions from performing these duties in order to accommodate their personal religious beliefs, so long as the agencies provide the public with someone willing to carry them out. But what if an agency gave exemptions to all its employees, so there was no one available to issue the marriage license or perform a civil wedding for gay couples within its jurisdiction? That clearly shouldn’t be permissible.

Given such a contentious issue, a lot of whining and teeth gnashing was to be expected. Procedural stalling also goes with the territory. The question is whether any of these recalcitrant public officials will dig in their heels and actually refuse to obey the Court’s ruling. That’s not only possible, but probable. Court decisions, like traffic laws, aren’t self-executing. It takes traffic cops to enforce speed limits and red lights, and I won’t be surprised if some public officials have to be forced to respect gay couples’ constitutional rights with a string of court orders and enforcement actions. It wouldn’t be the first time in our history. People who violate the civil rights of others usually don’t change their behavior because of a court ruling. They have to be forced to comply. The Civil Rights Movement taught us that.




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