With NOM collapsing like a crumbling tenement, the main political force opposing same-sex marriage seems to the Heritage Foundation, working through its resident expert Ryan T. Anderson, a co-author on Robert George’s egregious What is Marriage?
Ryan, of course, is a big supporter of Turn-Away-the-Gay bills. Yesterday, in quick succession, he issued a series of tweets explaining why, in language that made me laugh out loud.
Let’s keep these handy for when he turns his attention back to banning same-sex marriage. But wait, he doesn’t do that, because there are no bans on same sex marriage. From the day before:
Of course, because laws that only allowed men to vote didn’t ban women voters, and that only allowed Christians to hold office didn’t ban Jewish office-holders, and that only allowed men to be King of Gondor didn’t ban orcs from ascending the throne.
Sorry about that last one. For a moment there I suffered a bout of Ryan-itis: the inability to distinguish fact from my fantasy.
Media reports are understating the horror of Uganda’s Anti-Gay Law. For instance, from the Associated Press:
It sets life imprisonment as the maximum penalty for “aggravated homosexuality,” defined as repeated gay sex between consenting adults and acts involving a minor, a disabled person or where one partner is infected with HIV.
In fact, it’s much worse than that. In fact, Uganda’s Anti-Gay Law can put you away for life just for opposing Uganda’s Anti-Gay Law.
The logic is pretty simple:
- The law says: “A person who commits the offence of aggravated homosexuality shall be liable, on conviction, to imprisonment for life.”
- One way of committing aggravated homosexuality is to be a “serial offender” against the law.
- A serial offender is “a person who has previous convictions of the offence of homosexuality or related offences.”
- Related offences include a variety of things, like counseling someone to have gay sex; getting same-sex married; or “promotion of homosexuality,” a grab bag covering any activity that:
- “funds or sponsors homosexuality or other related activities” or
- “offers premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality” or
- “uses electronic devices which include internet, films, mobile phones for purposes of homosexuality or promoting homosexuality” or
- “acts as an accomplice or attempts to promote or in anyway abets homosexuality and related practices.”
The penalties vary for a single related-offence violation, but if you’re convicted of a combination of these offences, or convicted of one offence multiple times, then you’re a serial offender, guilty of aggravated homosexuality, and subject to life imprisonment. So if you speak out against this law, and you keep speaking out against it, then you’re someone who “attempts to promote or in anyway abets homosexuality and related practices.” On your second or third conviction they can put you away for life.
This law is worse than the news accounts are making it out to be. It doesn’t just imprison gay people. It imposes a lifetime sentence on our allies, too. It doesn’t just make us into criminals and pariahs. It condemns anyone who might question this horrid law. It doesn’t just put Uganda in the dark ages. It’s built to keep the country there forever.
I could use some lawyers to chime in here, because to me it looks like Arizona is on the verge of abolishing the rule of law statewide.
Arizona legislators, as you know, are working on a “religious freedom” bill to keep the state a safe haven for anti-gay discrimination. Critics have pointed out the bill would legalize discrimination against just about anyone, but I don’t think that description goes far enough.
As far as I can tell, the bill could theoretically suspend just about every Arizona state and local law — at least temporarily — and introduce a new legal era in which citizens, businesses, and organizations get to decide which laws apply to them.
I can imagine the many sensible objections to this interpretation, so let me bring them up and address them.
Isn’t this just about anti-gay discrimination? Would it really bring all laws into question?
The bill says:
Except as provided in subsection C of this section, state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
But that’s just about exercising your religion. How do you get to “all laws”?
According to the bill:
“Exercise of religion” means the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief—
So at least they’d have to show it’s official religious doctrine!
Let me finish:
“Exercise of religion” means the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
Emphasis added. That means you can do something ordinarily illegal (or decline to do something the law requires) as long as you claim a religious reason, even if your choice isn’t mandated by your religion, important to your religion, or really even part of your religion — or rather, your “larger system of religious belief.”
But the lawbreakers have to prove their case, right?
They have to prove three things:
- That the person’s action or refusal to act is motivated by a religious belief.
- That the person’s religious belief is sincerely held.
- That the state action substantially burdens the exercise of the person’s religious beliefs.
We’ve already shown that (1) is vague enough to include just about anything, which makes it easier to prove (2), especially in the absence of mind-reading juries.
That still leaves the “substantial burden” requirement. In fact doesn’t the law say “the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions”?
But what is a substantial burden? UCLA law school professor Eugene Volokh explains the Supreme Court’s treatment of the concept:
Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice….So does requiring people not to do something that is required by their faith……
“While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.”…And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court… “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.”
Read the whole thing. Basically, though, you don’t have to establish the law is making you personally violate your religion (or, in the case of this Arizona bill, whatever vague religious sentiment you have even if it’s not really part of your declared religion). All you need to show is that you feel somehow involved in someone else’s violation of your religious hunch, even if that connection seems inconsistent or unsound to the court.
So the “substantial burden” requirement is satisfied almost by tautology: any perceived violation of religious freedom, however tenuous the link to your actual religion, and however unreasonable it may seem to the court, is by definition a substantial burden. Is that the most expansive possible interpretation of the law? I would hope so. Is that the interpretation that the bill’s advocates will push for in court? I can’t imagine otherwise.
Does the bill ever allow the government to enforce its laws?
To a degree. It says:
State action may substantially burden a person’s exercise of religion only if it the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person’s exercise of religion in this particular instance is both:
- In furtherance of a compelling governmental interest.
- The least restrictive means of furthering that compelling governmental interest.
In some cases, this is easy to establish. If you want to go all Leviticus and start stoning the wicked, the state can argue preventing murder is a compelling government interest and that laws against murder are the least restrictive way of accomplishing that. Same thing for a corporation that decides it can pollute a river because the Bible gives man dominion over the earth; laws against dumping toxic waste into a river are probably the least restrictive means of preventing toxic waste from getting dumped in a river. Depending, I suppose, on your definition of “toxic.”
(It is fun, as a twisted sort of game, to think of all the things an imaginative mind could justify under this bill.)
This two-step justification, though, isn’t always that easy. In fact, it’s part of the “strict scrutiny” standard, which is so tough and has been the death of so many laws that it’s been jokingly dubbed “strict in name, but fatal in practice.” At the very least, Arizona courts will have to step in and make some decisions, many of them extending up to the state Supreme Court. Some of these issues are already decided; others will be settled will quickly and easily; many, many others will not. But until that process is done (and here’s the complete set of Arizona state law; see how long it takes you just to read it, and then move on to the city and local law), we’re in legal limbo.
Of course, in reality the courts will immediately stay this entire law, and then find it unconstitutional. On the other hand, I say “of course” only because I hope/assume who reads the bill will find it clearly insane, and on that count I’m clearly wrong.
Hold on, you mentioned corporations. This is just about clergy and fundamentalist bakers. Corporations don’t have religious beliefs. Corporations aren’t even people!
Aren’t they? But I don’t have to invoke Supreme Court rulings. It’s all right there in the Arizona law, which “protects” the religious freedom of a whole motley crew of non-human people:
“Person” includes any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.
Okay. So that takes me back to where I started: As far as I can tell, the bill could theoretically suspend just about every Arizona state and local law — at least temporarily — and introduce a new legal era in which citizens, businesses, and organizations get to decide which laws apply to them.
That doesn’t sound so crazy now. Or it’s just as crazy, but it also seems plausible. And it’s based on a few simple points:
- The bill expands the definition of “person” to include, well, anything.
- The bill expands the notion of religion to include things that are not compulsory, central, or possibly even part of your religion — in other words, just about anything.
- The exceedingly subjective interpretation of “substantial burden” can include things that do not seem reasonable, sound, or consistent in a court of law; the tautological definition of “substantial burden” can include just about anything, given the wording of this bill.
- The mandated standard of strict scrutiny can strike down, well, not anything, but a huge and not entirely predictable chunk of the state’s laws.
Again, I’ll admit this is the most extreme interpretation of the law. But that’s no stumbling block for some of our opponents.
I’ll go even further with my speculation. A few years back I predicted that when NOM and their cohorts realized they couldn’t ban marriage equality in the courts, and then in the legislature, and then in direct votes by the people, they’d resort to going back to the courts to argue that our marriages violated their religious freedom. It’s hard to remember that some people rolled their eyes at me back then.
Now I have to wonder if the sweeping nature of this bill doesn’t represent a flaw in the eyes of their proponents, but is in fact a feature. This truly may not just be about discriminating against gays. Perhaps they’re thrilled at the idea that the bill would gut anti-discrimination laws in general. And perhaps they’re thrilled it would throw the entire legal structure into anarchy. The Tea Party wants a revolution. Perhaps this is their way of getting it.
As I said up top, I’d appreciate the input of any lawyers on this. Does the vague language of the law open the door to all manner of chaos? Let us know what you think. Also, check out Jim Burroway’s intriguing take on the bill.
Two and a half years ago, I offered up this ridiculous, extreme scenario as I tried to puzzle out just how far the advocates of “religious liberty” want to take us:
Suppose an on-duty police officer sees a known homosexual getting stomped to death in an alley by two men shouting, “Die, faggot, die!” He does nothing to stop it, and he lets the thugs escape, because he believes in Leviticus 20:13:
If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death. Their blood shall be upon them.
His religious beliefs make it impossible for him to intefere with what he views as God’s will, or even to hold the assailants responsible.
Should this officer be penalized? Or would that violate his religious freedom?
That’s not ridiculous or extreme anymore. Kansas is right now passing a law that could make this a reality.
Kansas House Bill No. 2453 (already passed by the state House and on its way to the Republican Senate and Governor) begins like this:
Section 1. Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;
(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or
(c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
And later in Section 2, police and other government employees are explicitly exempted:
(d) If an individual employed by a governmental entity or other non religious entity invokes any of the protections provided by section I, and amendments thereto, as a basis for declining to provide a lawful service that is otherwise consistent with the entity’s duties or policies, the individual’s employer, in directing the performance of such service, shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer.
That bit I emphasized is a great loophole. It means if you simply change my scenario from a gay individual to a gay couple, then police officers could invoke their religious right to let the bashing continue, and then the station would have to send out another officer — unless this would cause “undue hardship to the employer,” in which case…sorry!
(Actually, as Mark Joseph Stern points out in Slate, it may not even need to be a couple; it could be an individual as long as the officer perceives that individual as celebrating a — well, not necessarily a marriage, but even just a “similar arrangement” to marriage.)
I have to hope the bill’s authors never intended this, or even better, that I’m misinterpreting the words that appear on the page. Perhaps the gay bashing would be such clear danger to public safety that it would override this new law. But the major effect, the simpler, obviously deliberate effect, is this:
No one in Kansas will have to recognize a same-sex marriage as valid. No one. Which leads to an inevitable conclusion:
Either these religious activists are frauds who don’t give a damn about religious liberty, or they’re on a path to destroying civil marriage for everyone.
Let’s take up the fraud question first. If religious liberty is such an issue, why does the bill focus on the gender of married persons — in other words, why only carve out a religious exemption for same-sex marriage? Some religions don’t recognize the unions of those who have divorced and remarried. Or who married outside the faith. Why not include those as exemptions, too? Basically, this Kansas law privileges some religious beliefs above others, which not only raises constitutional questions, but also signals that its advocates don’t care about religious liberty in general, but only leap into action when it comes to dealing with those homosexual people. They aren’t champions of religious freedom at all. They’re just frauds.
Unless I’m judging them too harshly, and this is just a first step. Unless they’re really not motivated by anti-gay animus, and want to create this exemption for all sincerely-held religious beliefs.
In that case we face the complete destruction of civil marriage. You can always find some religious reason not to recognize a union. I listed a few above but it’s easy to come up with more. The couple’s using birth control; the man is permanently sexually incapacitated; one partner is gold-digger and married under false pretenses; the bride was not a virgin and should have been stoned the next day; the bride is a widow, and should have only married her husband’s brother.
These reasons don’t have to be good or rational or even traditional. They just have to be sincere. And what an incentive to put on a show of sincerity. Employers could calculate all the money they’d save by refusing spousal benefits to their divorced/remarried staff and pow! they have a new sincere religious belief. Hell, sudden conversions happen all the time. Sudden conversions are traditionally a cause for joy.
Once that happens, the legal status of marriage means nothing. No individual, privately or publicly employed, will be legally obliged to acknowledge married couples as married. We’ll have nothing but a loophole so big it ravages marital law to the point where nothing is left.
But let me pull back from this slippery-slope argument. Instead of spinning wild-yet-perfectly-plausible scenarios, let’s put the burden on the people pushing these laws. Let’s hammer them with a few simple questions:
If this is about the principle of religious freedom, why the narrow focus on same-sex marriage?
Do you believe all sincere religious beliefs about marriage should be likewise privileged (and if not, why not)?
Do you a have a limit, a line beyond which religious beliefs no longer supersede law (and if so, where is it and why)?
I don’t mean these as rhetorical questions. They may have answers, good ones, but I haven’t seen them articulated. And in their absence, we see only two choices: either these religious freedom advocates are frauds, or they’re initiating the destruction of civil marriage.
What can you say about Jennifer Thieme, Finance Director of NOM’s former affiliate, the Ruth Institute? Well, as my southern friends would slyly declare: Bless her heart. She tries her best to be a good anti-gay activist, with decidedly mixed results. Now she has a post up at Matt “Barb Wire” Barber’s new website, and she ends it by suggesting that folks on her side should engage people with a series of “conversation starters” — leading questions that turn out to be remarkably easy to answer. This strategy has been tried before and it didn’t work out well for them. Let’s see how it turns out this time:
Did you know that man/woman marriage is being removed from legal recognition?
No, because that’s not happening. Every man/woman marriage that was recognized before the passage of marriage equality will be recognized after the passage of marriage equality.
Is removing the gold standard from policy going to increase or decrease the power of the government over the individual over the long term? Will it be good for children?
Opponents of marriage equality tried and failed to show that same-sex parenting is inferior to opposite-sex parenting, so the whole premise of the question is false. Meanwhile it’s obvious that giving people more freedom over their personal lives will decrease the power of the government over the individual. And of course it will help children: the children of same-sex couples who will now have the legal family protections they deserve. It will help other kids too — see my next answer for more.
What sort of a message are we sending to children by removing the gold standard from policy?
It sends the message to gay kids that they are not disgusting, deviant, loathsome creatures incapable of love and doomed to life of loneliness, regardless of what they might hear from anti-gay activists.
Further, the message that you can live a life of love, commitment, and fulfillment, whether you’re straight or gay, will help all kids navigate the fears and uncertainties of adolescence. We’ve learned that gay-straight alliances in schools reduce the risk of suicide for all students, gay and straight, so there’s every reason to believe this message sent by marriage equality will help all kids, gay and straight.
Why is the radical Left in love with marriage now, when they have historically reviled marriage?
Have they? All of them? Anyway, I don’t know — I’m not part of the radical Left. But perhaps because they believe in equality under the law for all citizens? Really, though, you should just ask them — while remembering that the “radical Left” represents only a small fraction of all those who now support marriage equality.
If this was only about civil marriage, why are we seeing religious liberty issues arise?
These “religious liberty” issues arise from non-discrimination law, and some people are using their religion to demand a special right to ignore those laws. I understand that this demand for special rights is not how you want to spin your cause, but that’s what it is.
You really ought to advocate abolishing all discrimination law, because it all restricts the liberty (including the religious liberty) of people to choose whom they will associate and work with. That’s a much harder sell, of course, but if this is a sincere issue of principle then that shouldn’t dissuade you. If this is just about disliking gay people, though, then stick to your present course.
Should we take the radical Left seriously when they tell us where they’re going?
Again, the “radical Left” represents only a small fraction of all those who now support marriage equality, so I’m not sure how this is relevant.
Well, that was easy. And you know what? It just gets easier every year.
“But the truth is, you don’t have a choice.”
Uber anti-gay Matt Barber has gone on the offensive with his own website called BARBWIRE. Whether that moniker’s another sad attempt to bolster his tough masculine toughness, or just his drag name, I can’t say. But it is a hoot. Bryan Fischer (!) has a column on “defeating Darwinism in four easy steps” and it’s marvelous display of studied ignorance. Scott Lively (!) has an article proving that the anti-gay violence in Russia is probably perpetrated by other gays because, well, Nazis.
Think twice before you visit, though. I already wasted too much time today in the comments, feeding my outrage addiction. You know, one paranoid theory on the right is that the Democratic party pays its minions to post comments on right-wing fringe websites (where’s my money?) but I could almost entertain an opposing and corresponding theory that these sites are set up just to suck us into channeling our energy there instead of into more useful activism.
Hell, it’s almost more plausible than thinking these folk could be for real.
My favorite part of Opening Ceremonies was at the end, when Putin declared the Games open and they lit the Eye of Sauron.
It’s not enough to have the better message. We also have to make sure it reaches people in their head, their heart, and their gut. This woman, in mere moments, does a brilliant job.