Sometimes there are unreasonable lawsuits. Sometimes there are unavoidable corner cases that give rise to reasonable lawsuits. Neither of these means that the law is wrong.
I’m not sure exactly what point you’re arguing now.
The original question: Are religious organizations at risk of being obliged to endorse same-sex marriages despite their traditions against such marriages?
VoiceOfRa’s example doesn’t seem to me to be any evidence that they are; the organization in question isn’t (or at least wasn’t at the relevant time) a religious organization, the threat to it shows every sign of being basically made up to support its lawsuit, and the result of the legal action it initiated seems to have been that indeed it could operate the way it wanted.
The question I think your last comment is addressing: Is the particular law we’re discussing drafted in some less-than-perfect way?
Maybe. The fact that there was a lawsuit could be evidence of that. Or it could just be that the ADF is rather trigger-happy about filing certain kinds of lawsuit.
Clearly you find something unsatisfactory here. Could you describe how the law could look, such that there would be no risk of lawsuits like the Knapps’?
Obviously one way to do that would be not to permit same-sex marriages after all, but it appears that the Will of the People is to permit them[1], and if we have to choose between “one business was worried that some day hypothetically it might be required to conduct a same-sex wedding, which for religious reasons its owners don’t want it to do” and “many thousands of couples who want to get married are forbidden to do so” it doesn’t seem like a difficult choice.
Or you could nominally permit same-sex marriage but provide a blanket exemption saying that no person or institution can ever be compelled to marry any same-sex couple if they don’t want to. The likely effect is that in large regions of the USA any same-sex couple wanting to get married has to travel a long way to find anyone who’ll marry them. Again, that seems like a pretty bad outcome.
Or you could have an exemption specifically for religious institutions because those are the ones that have the deepest-rooted, hardest-to-get-around, most-sympathized-with objections to same-sex marriage. Which is a common state of affairs now, and generally seems to work OK. But as soon as you do anything like this, you open up the possibility of lawsuits like the Knapps’.
(Or you could have no exemptions and say to hell with religious organizations that have a problem. Which I would regard as a bad option, but it’s pretty much symmetrical with the “no same-sex marriage” option except that fewer people get screwed over.)
So if there’s an actually possible option that rules out the possibility of lawsuits like this one, while not harming a whole lot more people, I’m not seeing it. What do you think they should have done instead and why?
[1] In jurisdictions where same-sex marriage is a thing, that is.
Could you describe how the law could look, such that there would be no risk of lawsuits like the Knapps’?
In order for the law to be a law that works, there has to be no significant risk of lawsuits [1]. It is possible that in the current political climate, there is no way the law could look that makes there be no risk of lawsuits. This would mean that in the current political climate, there is no way the law could work.
And if there’s no way the law could work, that answers the first question: religious organizations are at risk of being forced to perform gay marriages, and laws that try to prevent such force don’t work.
[1] Again, preemptive lawsuits count if they are meant to prevent a real risk of normal lawsuits and are not a slam dunk.
I see that I have been unclear, and I’ll try to fix that. When I said “how the law could look”, I didn’t mean “the law permitting same-sex marriage”, I meant “the law as a whole”. So, in particular, “same-sex marriage stays illegal” is one possible way the law could look.
Regardless, I’m puzzled by two features of your answer.
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
(Of course there might then be a risk of lawsuits from same-sex couples who want to get married but can’t. But your second paragraph makes it clear that you aren’t counting that under the heading of “no way the law could work”.)
Second: there are what look to me like some serious gaps in your reasoning. To explain the gaps I think I see, I’ll begin by repeating your argument in more explicit form; please let me know if I misrepresent it. I’ll consider the law as it currently is rather than the more general question of whether any modified version might be better.
A. The Knapps’ lawsuit happened.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
C. Therefore, there was a real risk that the Knapps would be forced to perform same-sex marriages.
D. Therefore, there was a real risk that religious organizations would be forced to perform same-sex marriages.
Now, of course I agree with A. I do not agree with B; there are other reasons why the Knapps and/or the ADF might have chosen to file their lawsuit even if there was never a real risk that the Knapps would be required to perform same-sex marriages. I agree that C is a reasonable inference from B (and indeed might be correct even if B isn’t). I do not agree with the inference from C to D; the Knapps’ institution wasn’t a religious organization in the relevant sense, and if it had been then they would have been at no risk of coercion.
It seems, as I mentioned above, that shortly before filing the lawsuit the Knapps made a number of changes to the Hitching Post’s stated principles and practices. Perhaps after those changes it was a religious organization in the relevant sense. I hope it’s clear that “My organization was told it might have to conduct same-sex weddings; then a bunch of things about it changed; now my organization is a religious organization; therefore religious organizations are at risk of being forced to conduct same-sex weddings” is not good reasoning.
So: I still don’t see how the Knapps’ story is good evidence against Nancy’s denial that “forcing ministers and priests to perform gay weddings is at all likely”.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why? (For instance, do you think it would be best to forbid same-sex marriages altogether, on the grounds that if they are legal then it’s possible that some day a religious organization might have to conduct one?)
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
I didn’t say there was no way the law could work. I said it was possible there was no way the law could work (this questioning your implicit assumption that I had to tell you a way for it to work.)
At any rate, I can easily see how that law might not work either. The law is passed, then someone takes the religious group to court claiming that the law violates equal protection.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
This is an incorrect description of my argument. It is not true, in general, that preemptive lawsuits indicate a real risk. But it is true in this case, because what they were told by the city attorney’s office.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why?
I don’t know that there was anything they could have done instead. It may just be that they were screwed.
(This discussion doesn’t seem to be generating much light. I think I might drop it somewhere around now.)
I didn’t say you did say there was no way the law could work; I said you said that perhaps there was no way the law could work, because there might be no way to avoid the risk of lawsuits, and then I explained why it seemed obvious that there is a way to avoid that risk.
I already commented on the possibility of lawsuits going the other way, and explained why I didn’t think it relevant to your argument.
it is true in this case, because [of] what they were told by the city attorney’s office.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer. If you look at the actual wording of the attorney’s comments, it’s full of hedging.
Also, let me remind you: they were a purely commercial outfit offering weddings to anyone, religious or not; they talked to the attorney and were told that yes, in principle it could happen that they’d be obliged to conduct same-sex marriages; then they rewrote all their promotional materials to present them as a super-religious organization, and then they sued for the right not to marry same-sex couples. The “real risk” is that commercial wedding-sellers might be obliged to conduct same-sex marriages, which is not news and has nothing to do with the alleged risk to actual religious institutions.
I don’t know that there was anything they could have done instead.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer.
If that’s the explanation, then as soon as he sued the city, the city would have immediately said “given what you described in your lawsuit papers, what you want to do is legal” and ended the lawsuit right there.
I don’t know that there was anything they could have done instead.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
The argument is that religious leaders can be forced to perform gay marriages. Making them go through an expensive lawsuit if they don’t counts as force. If there’s nothing they or the lawmakers can do to prevent being forced, it’s still true that they can be forced, so the argument remains valid.
If that’s the explanation, then [...] ended the lawsuit right there.
It looks as if the city very quickly (1) stated explicitly that the Knapps were not in danger of being forced to perform same-sex marriages or punished for not doing so, and (2) attempted to settle. However, on further investigation it seems that the case is still going on. I have no inside knowledge as to what the obstacles to settlement are. Unless the city’s attorney is lying outright, they have explicitly said to the Knapps “We’re not going to pursue you, you’re good to go and you’re a religious corporation exempt under our ordinance”. (I assume that’s a paraphrase, but it’s a paraphrase by someone officially representing the city.)
So I think the city did do exactly what you say; but it’s not their lawsuit, they can’t dismiss it unilaterally, and for whatever reason the Knapps and/or the ADF aren’t satisfied and want more.
(Here is my guess at what more they want. The lawsuit requests not only an injunction telling the city not to take action against the Knapps for not marrying same-sex couples, but a declaratory judgement that the city’s ordinance as applied to the Knapps violates the First and Fourteenth Amendments. Given that the city hasn’t actually taken any action against the Knapps, that seems to be the same thing as a demand for a declaratory judgement that the city’s ordinance itself is unconstitutional. I can see why they might be unwilling to accept that.)
the argument remains valid
The fact that an ideological advocacy group can file a frivolous lawsuit simply isn’t much evidence that there’s an actual danger of the kind of coercion they claim to be worried about.
The original question: Are religious organizations at risk of being obliged to endorse same-sex marriages
Actually, I think the original question wasn’t about organizations, it was about individuals.
it appears that the Will of the People is to permit them … in large regions of the USA any same-sex couple wanting to get married has to travel a long way to find anyone who’ll marry them
I think these two sentence fragments directly contradict each other. And the second looks silly, too—what, there would be literally not one single person willing to marry them?
Legally speaking, in the US the issue is basically Constitutional. The question is whether forcing people to perform actions contrary to their religious beliefs infringes on their right to the “free exercise” of their religion.
the original question wasn’t about organizations, it was about individuals
It was phrased that way, but I think it’s obviously a Wrong Question when phrased that way and I’m fairly sure that what makes it sound worrying when someone talks about “the left forcing ministers to perform gay weddings” is not the idea that ministers might be treated in such a disagreeable way, but the idea that churches (and other such entities—but in the US it’s usually churches) might be. That is: If the Reverend Bob Smith, a minister of the Fundamental Free Fundamentalist Church of Freedom, stops being (or never is) a full-time minister of religion, and starts up Bob’s Wedding Shack providing weddings for anyone who’ll pay, then even though Bob may still be an ordained minister of the FFFCoF he’s no longer acting as one, he’s providing a commercial service and should be subject to the same terms as anyone else providing a commercial service.
(This is the way other similar religious exemptions tend to work. The FFFCoF may refuse to employ women as ministers and that’s fine, but Bob’s Wedding Shack isn’t allowed to refuse to employ women as secretaries. It may deny evolution and no one will force its services to put a reading from the Origin of Species alongside Genesis 1, but if Bob’s next job is as a biology teacher then the fact that he’s an ordained minister gives him no special right to tell his students that life on earth is less than 10,000 years old. The point isn’t special rights for ministers, it’s special protections for religious groups.)
So: yeah, there might be a risk that ministers will be forced to conduct same-sex weddings—in the sense that someone who is an ordained minister might take some entirely different job that involves marrying people. But that’s not what any reasonable person is actually worried about. (Unless they are worried more generally that religious people might be forced to conduct same-sex weddings despite disapproving. But that’s got nothing to do with ministers as such.)
I think these two sentence fragments directly contradict one another.
No, because The People are not unanimous and their opinions are not uniformly distributed geographically.
what, there would be literally not one single person willing to marry them?
Take a look at the distribution of abortion clinics in the southern United States some time. E.g., if you’re in the Rio Grande Valley in Texas, you may be 150 miles from the nearest one. The reasons for this are much the same as the reasons for which a same-sex couple might have trouble finding people to marry them in some scenarios. And it’s perfectly compatible with its being the Will of the People for abortion to be legal.
Well, what I said is “it’s perfectly compatible with …” rather than “it’s also true that …”. But:
Gallup polling finds that the US population splits roughly 2:3:5 between unconditionally illegal, conditional, and unconditionally legal. More than 50% of people polled way Roe v Wade should not be overturned; fewer than 30% say it should be. (There are a lot of undecideds.) On the other hand, further questioning of the ~50% who say abortion should be legal sometimes but not always shows that they mostly want it to be available in “few” rather than “many” cases, which may mean that they want it to be more restricted than it is now, which I’m not sure how to square with opinions on Roe v Wade.
So. US law permits abortion in some cases. A large majority of US citizens think US law should permit abortion in some cases. It’s been many years since Roe v Wade and the people of the US have conspicuously not voted in governments that have tried to get Roe v Wade overturned. So yeah, I think it’s fair to say that for abortion to be sometimes legal is the Will of the People.
It may indeed not be the Will of the People of Texas. It very likely isn’t the Will of the People of (say) Odessa, Texas. But it’s a matter of federal law, rather than anything more local.
(Same-sex marriage is currently a matter of state rather than federal law in the US, and in the particular state under discussion it’s legal. Given how it became so and that because it was fairly recent it’s hard to gauge public opinion from subsequent events, I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.)
I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.
Consider who it came to be the “law” of Idaho. Did the Idaho legislator pass legislation permitting it? No, the Idaho supreme court re-interpreted the existing laws to basically declare that it is and has always been the law.
This is very strange. I say: actually, considering how it came about, it isn’t necessarily the Will of the People. You say: Hey, you need to consider how it came about, and then you might realise that it isn’t necessarily the Will of the People.
(Perhaps you’re saying that we shouldn’t regard the process that made it law in Idaho as legitimate. If so, I think rather more argument needs deploying to that end than you have presented so far. In particular, the ideas (1) that laws can turn out to be unconstitutional and need undoing and (2) that interpretation of the constitution can change over time so that different things are deemed unconstitutional at different times, are both pretty firmly established in US jurisprudence, and all you’re pointing out here is that this is an example of that process.)
It means what the people actually want. That’s kinda ill-defined given that different people want different things, so we have systems for aggregating the wills of individual people to make decisions.
Example: It is the will of the people in the US, collectively, that abortion be legal in certain circumstances. The fact that the law actually permits it is on its own only weak evidence for this (what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection), but it’s also what opinion polls say, and The People have had plenty of chances to elect people who might change the law and it hasn’t happened.
There are individuals and communities whose will is something else. It happens that in US law the scale at which the WotP is aggregated is national. (For this specific issue.)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho. All of which is why, on reflection, I retracted my earlier claim that legal same-sex marriage is the WotP in this context.
I repeat: the WotP isn’t perfectly well defined. In some cases there will be no answer, or at least no answer not subject to vigorous disagreement even between reasonable and well-informed people.
what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection
(..)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho.
Well, the fact that support for gay marriage is strongly correlated with the amount of indirection should give you a hint.
For example, look at what actually happened in Idaho, the people’s direct representatives passed a law (and then a constitutional amendment) against gay marriage, and a federal judge (who isn’t even appointed by the state) declared it unconstitutional.
Or look what happened in Oregon (which is where the case under discussion happened), a county official started issuing same-sex “marriage” licenses, the People then passed a constitutional amendment banning it. Then a federal court declared the ban unconstitutional.
the fact that support for gay marriage is strongly correlated with the amount of indirection
Is it? Could you show me the numbers?
I’m not saying it isn’t, by the way. It might well be. But what would be particularly uninteresting would be if what you mean is this: that among states where same-sex marriage is legal, there is a correlation between popular support for same-sex marriage and how direct the most direct sort of WotP-ness of same-sex marriage is there. Because that is automatically true whatever the actual facts.
What I’m saying is that ballot initiatives almost always (maybe there are one or two exceptions) go against gay “marriage”. Legislators mostly vote against gay “marriage”. Most places where gay “marriage” is legal it is this way due to court decisions.
It seems like that (assuming it’s true, which I haven’t checked) might be telling us much more about the strategies of different lobbying groups than about actual popular support for same-sex marriage.
Legislators [...]
For obvious reasons legislators’ opinions may lag voters’ by a couple of years. Support for same-sex marriage has been on the increase recently. So if it’s true that legislators usually vote against, even though popular support is somewhere around 60% nationally, that might be why. But, again, I haven’t checked whether it’s true that legislators mostly vote against. (This, also, might be a function more of when the question gets put to the vote rather than of general opinion among legislators.)
Most places [...]
This one, again, I haven’t checked, and I’m a bit skeptical about it. Do you have figures? Yet again, though, this could be true for reasons that have nothing to do with the one I take it you’re trying to suggest (i.e., that same-sex marriage is unpopular and foisted on the populace by the judiciary). For instance, consider a hypothetical world where the following things are true:
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
There is enough popular opposition to same-sex marriage for many of those initiatives to succeed.
However, popular opinion is shifting in the direction of same-sex marriage.
(Note that all these things could be true for a wide range of actual national popular support for same-sex marriage.)
In this hypothetical world, many states pass anti-SSM laws which are subsequently overturned when they are challenged on constitutional grounds; in those places there is no need for further action to make same-sex marriage legal; accordingly, where it’s legal the proximate cause is usually that a court has decided it must be. After a while, though, even in most of those places there is in fact enough popular support for same-sex marriage that a law explicitly permitting it would pass—but there’s no need for such a law, because the question has been effectively resolved at national level.
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
This is a complete dodge, since it dodges the question of why the SCOTUS will make this interpritation, or whether it should.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
And why would they adopt that strategy? Is it because they have popular support behind their position?
However, popular opinion is shifting in the direction of same-sex marriage.
Again you avoid the issue of why the popular opinion is shifting. Especially when a lot of it may well be preference falsification, given what can happen to people who openly oppose it.
The implicit argument you seem to be trying to make is “we must support gay marriage because it is the wave of the future”. The problem is that this argument is basically circular.
In what sense? I’m not proposing that the possible world I described is an admirable one, only that it’s a possible one that somewhat resembles the real world and that in it (1) the pattern of SSM legislation you describe obtains and (2) popular sentiment favours SSM.
And why would they adopt that strategy?
Popular support would be one reason (though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws). Other possible reasons: it’s a more effective way of publicizing the issue, it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California), if you make it a constitutional amendment you can make it harder for elected politicians to reverse later, it avoids entanglement with other political issues.
Again you avoid the issue of why the popular opinion is shifting.
I’m not deliberately avoiding that issue; I wasn’t aware it was an issue. Why do you think it’s an issue?
preference falsification
Yeah, that can happen. But unless you have actual evidence for it and some quantification, appealing to it leaves you with an unfalsifiable theory: the people oppose same-sex marriage, and the fact that 60% of them tell pollsters they approve of it is no evidence against it because maybe 1⁄6 of the people who say that are lying about their preferences. That figure could be 100% and for all I know you’d just say “That shows how strong the social pressure is!”. Is there any possible evidence that you would accept as showing that same-sex marriage actually has majority popular support in the US?
given what can happen
There’s a lot that could be said about that, but rather than getting into a lengthy digression here I’ll just say: At most, that indicates that there are risks in making sizeable public donations to an anti-SSM campaign. It doesn’t indicate that any risk attaches to giving an honest answer in an anonymous poll.
“we must support gay marriage because it is the wave of the future”
I promise you that that in no way resembles any argument I was trying to make or ever intend to make. I have not, in fact, argued that we must support same-sex marriage; I have not made any claim about its likely support in the future; I think you must be wildly misinterpreting my hypothetical example—which, I repeat, is intended descriptively and not normatively.
Whether something is “the wave of the future” has approximately nothing to do with whether we should support it now. (Not exactly nothing; sometimes we might have reason to think that the people of the future will have a clearer view than we have now; or we might choose not to change something now on pragmatic grounds, because it will only be overturned in a few years.)
Incidentally, it seems that every time I have a reply from you I also have a freshly minted downvote. Is it your opinion that there’s something wrong with my comments other than that you disagree with them? If you make a habit of downvoting everyone you disagree with, you may find that some people choose to respond to you with downvotes instead of disagreement. (That is not my practice; I don’t think I’ve downvoted anything you’ve written in this discussion.)
(though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws).
Less so, since that strategy results in you getting it mixed up with other random issues, and also relies on politicians keeping their promises.
it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California),
Much smaller then the funds raised against it.
if you make it a constitutional amendment you can make it harder for elected politicians to reverse later,
Or more importantly state supreme courts. In fact, in many cases, e.g California, the reason for the amendment was to reverse a state supreme court decision.
it avoids entanglement with other political issues.
Yes, which is only to your advantage if you have popular support for this particular issue.
Is it your opinion that there’s something wrong with my comments other than that you disagree with them?
The fact that your trying to pass of large amounts of dark arts and indirection as an argument.
The fact that your trying to pass large amounts of dark arts and indirection as an argument.
Not intentionally; could you please be specific? I remark that you have made at least one extremely wrong claim about what I’m arguing (claiming I’m saying “we must support gay marriage because it is the wave of the future”, which I am not and never have and never would), and suggest that you consider the possibility that you are wrong about what I am trying to do.
[EDITED to add: oops, sorry, you didn’t claim I’m saying that, only that I’m implicitly trying to argue that. Again, that is no part of my intention.]
I think it’s obviously a Wrong Question when phrased that way
That’s not obvious to me. Let me explain.
My understanding of who can marry whom is hazy, but as far as I know in the US it works as follows. There are two classes of people who have the power to marry. The first class is government officials and if you want a civil (non-religious) marriage, you just go to the City Hall and get married there. No problems and we’re not talking about those people. The second class is priests/ministers/rabbis/imams/etc. of a recognized religion.
The thing is, Bob Smith as a plain-vanilla citizen has no right to marry anyone. Even is he opens a business and calls it Bob’s Wedding Shack, he still has no right to marry anyone. He can only marry people if he is acting as a priest/minister/rabbi/imam/etc. And if he’s one, he doesn’t need to have a business to do so—he can marry people for fun in his spare time, if he wishes.
Rights come in pairs with duties. If you want to give a gay couple the right to be wed, it means that somebody has a duty to marry them. City officials have such a duty and that’s fine. The question is whether priests have a duty to marry them. And it’s a person who does marriage rite, not an organization.
Take a look at the distribution of abortion clinics in the southern United States
That’s not really comparable. To conduct abortions you need to be a licensed MD, have a clinic, etc. etc. To marry people you need nothing.
The question is whether priests have a duty to marry them.
And no one is suggesting that they do or should. If you are a priest and I go to you and say “hey, you’re a priest, marry me” you are not under the slightest obligation to comply. You are, I think, entirely within your rights to say that I’m not religious enough or that you think the marriage I propose to make is unwise. I’m not even sure I have any recourse if you won’t marry me because you don’t like the colour of my skin.
But if you are running a commercial wedding business and I go to you and say “hey, you run this business, marry me” you are not supposed to discriminate on the basis of those things. Religious establishments get all kinds of special dispensations to do things their own way, but commercial businesses have legal obligations to treat customers equally in certain respects.
And I don’t see that any of this is, or should be, invalidated merely because the guy who does the weddings at Bob’s Wedding Shack happens to be entitled to do weddings because he’s an ordained religious minister rather than because he’s a judge or a notary or a marriage commissioner.
Sometimes there are unreasonable lawsuits. Sometimes there are unavoidable corner cases that give rise to reasonable lawsuits. Neither of these means that the law is wrong.
I’m not sure exactly what point you’re arguing now.
The original question: Are religious organizations at risk of being obliged to endorse same-sex marriages despite their traditions against such marriages?
VoiceOfRa’s example doesn’t seem to me to be any evidence that they are; the organization in question isn’t (or at least wasn’t at the relevant time) a religious organization, the threat to it shows every sign of being basically made up to support its lawsuit, and the result of the legal action it initiated seems to have been that indeed it could operate the way it wanted.
The question I think your last comment is addressing: Is the particular law we’re discussing drafted in some less-than-perfect way?
Maybe. The fact that there was a lawsuit could be evidence of that. Or it could just be that the ADF is rather trigger-happy about filing certain kinds of lawsuit.
Clearly you find something unsatisfactory here. Could you describe how the law could look, such that there would be no risk of lawsuits like the Knapps’?
Obviously one way to do that would be not to permit same-sex marriages after all, but it appears that the Will of the People is to permit them[1], and if we have to choose between “one business was worried that some day hypothetically it might be required to conduct a same-sex wedding, which for religious reasons its owners don’t want it to do” and “many thousands of couples who want to get married are forbidden to do so” it doesn’t seem like a difficult choice.
Or you could nominally permit same-sex marriage but provide a blanket exemption saying that no person or institution can ever be compelled to marry any same-sex couple if they don’t want to. The likely effect is that in large regions of the USA any same-sex couple wanting to get married has to travel a long way to find anyone who’ll marry them. Again, that seems like a pretty bad outcome.
Or you could have an exemption specifically for religious institutions because those are the ones that have the deepest-rooted, hardest-to-get-around, most-sympathized-with objections to same-sex marriage. Which is a common state of affairs now, and generally seems to work OK. But as soon as you do anything like this, you open up the possibility of lawsuits like the Knapps’.
(Or you could have no exemptions and say to hell with religious organizations that have a problem. Which I would regard as a bad option, but it’s pretty much symmetrical with the “no same-sex marriage” option except that fewer people get screwed over.)
So if there’s an actually possible option that rules out the possibility of lawsuits like this one, while not harming a whole lot more people, I’m not seeing it. What do you think they should have done instead and why?
[1] In jurisdictions where same-sex marriage is a thing, that is.
In order for the law to be a law that works, there has to be no significant risk of lawsuits [1]. It is possible that in the current political climate, there is no way the law could look that makes there be no risk of lawsuits. This would mean that in the current political climate, there is no way the law could work.
And if there’s no way the law could work, that answers the first question: religious organizations are at risk of being forced to perform gay marriages, and laws that try to prevent such force don’t work.
[1] Again, preemptive lawsuits count if they are meant to prevent a real risk of normal lawsuits and are not a slam dunk.
I see that I have been unclear, and I’ll try to fix that. When I said “how the law could look”, I didn’t mean “the law permitting same-sex marriage”, I meant “the law as a whole”. So, in particular, “same-sex marriage stays illegal” is one possible way the law could look.
Regardless, I’m puzzled by two features of your answer.
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
(Of course there might then be a risk of lawsuits from same-sex couples who want to get married but can’t. But your second paragraph makes it clear that you aren’t counting that under the heading of “no way the law could work”.)
Second: there are what look to me like some serious gaps in your reasoning. To explain the gaps I think I see, I’ll begin by repeating your argument in more explicit form; please let me know if I misrepresent it. I’ll consider the law as it currently is rather than the more general question of whether any modified version might be better.
A. The Knapps’ lawsuit happened.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
C. Therefore, there was a real risk that the Knapps would be forced to perform same-sex marriages.
D. Therefore, there was a real risk that religious organizations would be forced to perform same-sex marriages.
Now, of course I agree with A. I do not agree with B; there are other reasons why the Knapps and/or the ADF might have chosen to file their lawsuit even if there was never a real risk that the Knapps would be required to perform same-sex marriages. I agree that C is a reasonable inference from B (and indeed might be correct even if B isn’t). I do not agree with the inference from C to D; the Knapps’ institution wasn’t a religious organization in the relevant sense, and if it had been then they would have been at no risk of coercion.
It seems, as I mentioned above, that shortly before filing the lawsuit the Knapps made a number of changes to the Hitching Post’s stated principles and practices. Perhaps after those changes it was a religious organization in the relevant sense. I hope it’s clear that “My organization was told it might have to conduct same-sex weddings; then a bunch of things about it changed; now my organization is a religious organization; therefore religious organizations are at risk of being forced to conduct same-sex weddings” is not good reasoning.
So: I still don’t see how the Knapps’ story is good evidence against Nancy’s denial that “forcing ministers and priests to perform gay weddings is at all likely”.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why? (For instance, do you think it would be best to forbid same-sex marriages altogether, on the grounds that if they are legal then it’s possible that some day a religious organization might have to conduct one?)
I didn’t say there was no way the law could work. I said it was possible there was no way the law could work (this questioning your implicit assumption that I had to tell you a way for it to work.)
At any rate, I can easily see how that law might not work either. The law is passed, then someone takes the religious group to court claiming that the law violates equal protection.
This is an incorrect description of my argument. It is not true, in general, that preemptive lawsuits indicate a real risk. But it is true in this case, because what they were told by the city attorney’s office.
I don’t know that there was anything they could have done instead. It may just be that they were screwed.
(This discussion doesn’t seem to be generating much light. I think I might drop it somewhere around now.)
I didn’t say you did say there was no way the law could work; I said you said that perhaps there was no way the law could work, because there might be no way to avoid the risk of lawsuits, and then I explained why it seemed obvious that there is a way to avoid that risk.
I already commented on the possibility of lawsuits going the other way, and explained why I didn’t think it relevant to your argument.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer. If you look at the actual wording of the attorney’s comments, it’s full of hedging.
Also, let me remind you: they were a purely commercial outfit offering weddings to anyone, religious or not; they talked to the attorney and were told that yes, in principle it could happen that they’d be obliged to conduct same-sex marriages; then they rewrote all their promotional materials to present them as a super-religious organization, and then they sued for the right not to marry same-sex couples. The “real risk” is that commercial wedding-sellers might be obliged to conduct same-sex marriages, which is not news and has nothing to do with the alleged risk to actual religious institutions.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
If that’s the explanation, then as soon as he sued the city, the city would have immediately said “given what you described in your lawsuit papers, what you want to do is legal” and ended the lawsuit right there.
The argument is that religious leaders can be forced to perform gay marriages. Making them go through an expensive lawsuit if they don’t counts as force. If there’s nothing they or the lawmakers can do to prevent being forced, it’s still true that they can be forced, so the argument remains valid.
It looks as if the city very quickly (1) stated explicitly that the Knapps were not in danger of being forced to perform same-sex marriages or punished for not doing so, and (2) attempted to settle. However, on further investigation it seems that the case is still going on. I have no inside knowledge as to what the obstacles to settlement are. Unless the city’s attorney is lying outright, they have explicitly said to the Knapps “We’re not going to pursue you, you’re good to go and you’re a religious corporation exempt under our ordinance”. (I assume that’s a paraphrase, but it’s a paraphrase by someone officially representing the city.)
So I think the city did do exactly what you say; but it’s not their lawsuit, they can’t dismiss it unilaterally, and for whatever reason the Knapps and/or the ADF aren’t satisfied and want more.
(Here is my guess at what more they want. The lawsuit requests not only an injunction telling the city not to take action against the Knapps for not marrying same-sex couples, but a declaratory judgement that the city’s ordinance as applied to the Knapps violates the First and Fourteenth Amendments. Given that the city hasn’t actually taken any action against the Knapps, that seems to be the same thing as a demand for a declaratory judgement that the city’s ordinance itself is unconstitutional. I can see why they might be unwilling to accept that.)
The fact that an ideological advocacy group can file a frivolous lawsuit simply isn’t much evidence that there’s an actual danger of the kind of coercion they claim to be worried about.
Actually, I think the original question wasn’t about organizations, it was about individuals.
I think these two sentence fragments directly contradict each other. And the second looks silly, too—what, there would be literally not one single person willing to marry them?
Legally speaking, in the US the issue is basically Constitutional. The question is whether forcing people to perform actions contrary to their religious beliefs infringes on their right to the “free exercise” of their religion.
It was phrased that way, but I think it’s obviously a Wrong Question when phrased that way and I’m fairly sure that what makes it sound worrying when someone talks about “the left forcing ministers to perform gay weddings” is not the idea that ministers might be treated in such a disagreeable way, but the idea that churches (and other such entities—but in the US it’s usually churches) might be. That is: If the Reverend Bob Smith, a minister of the Fundamental Free Fundamentalist Church of Freedom, stops being (or never is) a full-time minister of religion, and starts up Bob’s Wedding Shack providing weddings for anyone who’ll pay, then even though Bob may still be an ordained minister of the FFFCoF he’s no longer acting as one, he’s providing a commercial service and should be subject to the same terms as anyone else providing a commercial service.
(This is the way other similar religious exemptions tend to work. The FFFCoF may refuse to employ women as ministers and that’s fine, but Bob’s Wedding Shack isn’t allowed to refuse to employ women as secretaries. It may deny evolution and no one will force its services to put a reading from the Origin of Species alongside Genesis 1, but if Bob’s next job is as a biology teacher then the fact that he’s an ordained minister gives him no special right to tell his students that life on earth is less than 10,000 years old. The point isn’t special rights for ministers, it’s special protections for religious groups.)
So: yeah, there might be a risk that ministers will be forced to conduct same-sex weddings—in the sense that someone who is an ordained minister might take some entirely different job that involves marrying people. But that’s not what any reasonable person is actually worried about. (Unless they are worried more generally that religious people might be forced to conduct same-sex weddings despite disapproving. But that’s got nothing to do with ministers as such.)
No, because The People are not unanimous and their opinions are not uniformly distributed geographically.
Take a look at the distribution of abortion clinics in the southern United States some time. E.g., if you’re in the Rio Grande Valley in Texas, you may be 150 miles from the nearest one. The reasons for this are much the same as the reasons for which a same-sex couple might have trouble finding people to marry them in some scenarios. And it’s perfectly compatible with its being the Will of the People for abortion to be legal.
Is it? The Will of the People, especially the Will of the People of Texas, for abortion to be legal is a rather dubious claim.
Well, what I said is “it’s perfectly compatible with …” rather than “it’s also true that …”. But:
Gallup polling finds that the US population splits roughly 2:3:5 between unconditionally illegal, conditional, and unconditionally legal. More than 50% of people polled way Roe v Wade should not be overturned; fewer than 30% say it should be. (There are a lot of undecideds.) On the other hand, further questioning of the ~50% who say abortion should be legal sometimes but not always shows that they mostly want it to be available in “few” rather than “many” cases, which may mean that they want it to be more restricted than it is now, which I’m not sure how to square with opinions on Roe v Wade.
So. US law permits abortion in some cases. A large majority of US citizens think US law should permit abortion in some cases. It’s been many years since Roe v Wade and the people of the US have conspicuously not voted in governments that have tried to get Roe v Wade overturned. So yeah, I think it’s fair to say that for abortion to be sometimes legal is the Will of the People.
It may indeed not be the Will of the People of Texas. It very likely isn’t the Will of the People of (say) Odessa, Texas. But it’s a matter of federal law, rather than anything more local.
(Same-sex marriage is currently a matter of state rather than federal law in the US, and in the particular state under discussion it’s legal. Given how it became so and that because it was fairly recent it’s hard to gauge public opinion from subsequent events, I concede that we don’t know that legal same-sex marriage is the Will of the People of Idaho. It is, however, the law of Idaho.)
Consider who it came to be the “law” of Idaho. Did the Idaho legislator pass legislation permitting it? No, the Idaho supreme court re-interpreted the existing laws to basically declare that it is and has always been the law.
This is very strange. I say: actually, considering how it came about, it isn’t necessarily the Will of the People. You say: Hey, you need to consider how it came about, and then you might realise that it isn’t necessarily the Will of the People.
(Perhaps you’re saying that we shouldn’t regard the process that made it law in Idaho as legitimate. If so, I think rather more argument needs deploying to that end than you have presented so far. In particular, the ideas (1) that laws can turn out to be unconstitutional and need undoing and (2) that interpretation of the constitution can change over time so that different things are deemed unconstitutional at different times, are both pretty firmly established in US jurisprudence, and all you’re pointing out here is that this is an example of that process.)
Ok, now I officially have no idea what you mean by “Will of the People” since it seems to bear no relation to what the people actually want.
It means what the people actually want. That’s kinda ill-defined given that different people want different things, so we have systems for aggregating the wills of individual people to make decisions.
Example: It is the will of the people in the US, collectively, that abortion be legal in certain circumstances. The fact that the law actually permits it is on its own only weak evidence for this (what it shows is that the people elected presidents who nominated SC judges who interpreted the constitution that way, and that’s a lot of indirection), but it’s also what opinion polls say, and The People have had plenty of chances to elect people who might change the law and it hasn’t happened.
There are individuals and communities whose will is something else. It happens that in US law the scale at which the WotP is aggregated is national. (For this specific issue.)
It’s not very clear to me what the best scale is for aggregating the WotP about same-sex marriage, nor what the actual WotP is nationally, nor what the actual WotP is in Idaho. All of which is why, on reflection, I retracted my earlier claim that legal same-sex marriage is the WotP in this context.
I repeat: the WotP isn’t perfectly well defined. In some cases there will be no answer, or at least no answer not subject to vigorous disagreement even between reasonable and well-informed people.
Well, the fact that support for gay marriage is strongly correlated with the amount of indirection should give you a hint.
For example, look at what actually happened in Idaho, the people’s direct representatives passed a law (and then a constitutional amendment) against gay marriage, and a federal judge (who isn’t even appointed by the state) declared it unconstitutional.
Or look what happened in Oregon (which is where the case under discussion happened), a county official started issuing same-sex “marriage” licenses, the People then passed a constitutional amendment banning it. Then a federal court declared the ban unconstitutional.
Is it? Could you show me the numbers?
I’m not saying it isn’t, by the way. It might well be. But what would be particularly uninteresting would be if what you mean is this: that among states where same-sex marriage is legal, there is a correlation between popular support for same-sex marriage and how direct the most direct sort of WotP-ness of same-sex marriage is there. Because that is automatically true whatever the actual facts.
What I’m saying is that ballot initiatives almost always (maybe there are one or two exceptions) go against gay “marriage”. Legislators mostly vote against gay “marriage”. Most places where gay “marriage” is legal it is this way due to court decisions.
It seems like that (assuming it’s true, which I haven’t checked) might be telling us much more about the strategies of different lobbying groups than about actual popular support for same-sex marriage.
For obvious reasons legislators’ opinions may lag voters’ by a couple of years. Support for same-sex marriage has been on the increase recently. So if it’s true that legislators usually vote against, even though popular support is somewhere around 60% nationally, that might be why. But, again, I haven’t checked whether it’s true that legislators mostly vote against. (This, also, might be a function more of when the question gets put to the vote rather than of general opinion among legislators.)
This one, again, I haven’t checked, and I’m a bit skeptical about it. Do you have figures? Yet again, though, this could be true for reasons that have nothing to do with the one I take it you’re trying to suggest (i.e., that same-sex marriage is unpopular and foisted on the populace by the judiciary). For instance, consider a hypothetical world where the following things are true:
It is clear to most judges that the constitution implies, or will be interpreted by SCOTUS as implying, that laws forbidding same-sex marriage are improper.
Opponents of same-sex marriage choose to adopt a strategy of getting anti-same-sex-marriage laws on the books via ballot initiatives.
There is enough popular opposition to same-sex marriage for many of those initiatives to succeed.
However, popular opinion is shifting in the direction of same-sex marriage.
(Note that all these things could be true for a wide range of actual national popular support for same-sex marriage.)
In this hypothetical world, many states pass anti-SSM laws which are subsequently overturned when they are challenged on constitutional grounds; in those places there is no need for further action to make same-sex marriage legal; accordingly, where it’s legal the proximate cause is usually that a court has decided it must be. After a while, though, even in most of those places there is in fact enough popular support for same-sex marriage that a law explicitly permitting it would pass—but there’s no need for such a law, because the question has been effectively resolved at national level.
This is a complete dodge, since it dodges the question of why the SCOTUS will make this interpritation, or whether it should.
And why would they adopt that strategy? Is it because they have popular support behind their position?
Again you avoid the issue of why the popular opinion is shifting. Especially when a lot of it may well be preference falsification, given what can happen to people who openly oppose it.
The implicit argument you seem to be trying to make is “we must support gay marriage because it is the wave of the future”. The problem is that this argument is basically circular.
In what sense? I’m not proposing that the possible world I described is an admirable one, only that it’s a possible one that somewhat resembles the real world and that in it (1) the pattern of SSM legislation you describe obtains and (2) popular sentiment favours SSM.
Popular support would be one reason (though that would roughly-equally favour the different strategy of electing politicians who would vote for anti-SSM laws). Other possible reasons: it’s a more effective way of publicizing the issue, it’s easier to raise funds for (look e.g. at the huge sums raised for the Prop 8 vote in California), if you make it a constitutional amendment you can make it harder for elected politicians to reverse later, it avoids entanglement with other political issues.
I’m not deliberately avoiding that issue; I wasn’t aware it was an issue. Why do you think it’s an issue?
Yeah, that can happen. But unless you have actual evidence for it and some quantification, appealing to it leaves you with an unfalsifiable theory: the people oppose same-sex marriage, and the fact that 60% of them tell pollsters they approve of it is no evidence against it because maybe 1⁄6 of the people who say that are lying about their preferences. That figure could be 100% and for all I know you’d just say “That shows how strong the social pressure is!”. Is there any possible evidence that you would accept as showing that same-sex marriage actually has majority popular support in the US?
There’s a lot that could be said about that, but rather than getting into a lengthy digression here I’ll just say: At most, that indicates that there are risks in making sizeable public donations to an anti-SSM campaign. It doesn’t indicate that any risk attaches to giving an honest answer in an anonymous poll.
I promise you that that in no way resembles any argument I was trying to make or ever intend to make. I have not, in fact, argued that we must support same-sex marriage; I have not made any claim about its likely support in the future; I think you must be wildly misinterpreting my hypothetical example—which, I repeat, is intended descriptively and not normatively.
Whether something is “the wave of the future” has approximately nothing to do with whether we should support it now. (Not exactly nothing; sometimes we might have reason to think that the people of the future will have a clearer view than we have now; or we might choose not to change something now on pragmatic grounds, because it will only be overturned in a few years.)
Incidentally, it seems that every time I have a reply from you I also have a freshly minted downvote. Is it your opinion that there’s something wrong with my comments other than that you disagree with them? If you make a habit of downvoting everyone you disagree with, you may find that some people choose to respond to you with downvotes instead of disagreement. (That is not my practice; I don’t think I’ve downvoted anything you’ve written in this discussion.)
Less so, since that strategy results in you getting it mixed up with other random issues, and also relies on politicians keeping their promises.
Much smaller then the funds raised against it.
Or more importantly state supreme courts. In fact, in many cases, e.g California, the reason for the amendment was to reverse a state supreme court decision.
Yes, which is only to your advantage if you have popular support for this particular issue.
The fact that your trying to pass of large amounts of dark arts and indirection as an argument.
$39M for, $44M against. Much smaller?
Not intentionally; could you please be specific? I remark that you have made at least one extremely wrong claim about what I’m arguing (claiming I’m saying “we must support gay marriage because it is the wave of the future”, which I am not and never have and never would), and suggest that you consider the possibility that you are wrong about what I am trying to do.
[EDITED to add: oops, sorry, you didn’t claim I’m saying that, only that I’m implicitly trying to argue that. Again, that is no part of my intention.]
That’s not obvious to me. Let me explain.
My understanding of who can marry whom is hazy, but as far as I know in the US it works as follows. There are two classes of people who have the power to marry. The first class is government officials and if you want a civil (non-religious) marriage, you just go to the City Hall and get married there. No problems and we’re not talking about those people. The second class is priests/ministers/rabbis/imams/etc. of a recognized religion.
The thing is, Bob Smith as a plain-vanilla citizen has no right to marry anyone. Even is he opens a business and calls it Bob’s Wedding Shack, he still has no right to marry anyone. He can only marry people if he is acting as a priest/minister/rabbi/imam/etc. And if he’s one, he doesn’t need to have a business to do so—he can marry people for fun in his spare time, if he wishes.
Rights come in pairs with duties. If you want to give a gay couple the right to be wed, it means that somebody has a duty to marry them. City officials have such a duty and that’s fine. The question is whether priests have a duty to marry them. And it’s a person who does marriage rite, not an organization.
That’s not really comparable. To conduct abortions you need to be a licensed MD, have a clinic, etc. etc. To marry people you need nothing.
And no one is suggesting that they do or should. If you are a priest and I go to you and say “hey, you’re a priest, marry me” you are not under the slightest obligation to comply. You are, I think, entirely within your rights to say that I’m not religious enough or that you think the marriage I propose to make is unwise. I’m not even sure I have any recourse if you won’t marry me because you don’t like the colour of my skin.
But if you are running a commercial wedding business and I go to you and say “hey, you run this business, marry me” you are not supposed to discriminate on the basis of those things. Religious establishments get all kinds of special dispensations to do things their own way, but commercial businesses have legal obligations to treat customers equally in certain respects.
And I don’t see that any of this is, or should be, invalidated merely because the guy who does the weddings at Bob’s Wedding Shack happens to be entitled to do weddings because he’s an ordained religious minister rather than because he’s a judge or a notary or a marriage commissioner.