More on Vermont
CommentsI wrote what appears to be the first piece anywhere highlighting the Vermont Clause I blogged about earlier in the New York Daily News (online) today. An excerpt:
…the Vermont Clause certainly could go farther. I would like to see protections for individuals - not just organizations. Still, it’s a vast improvement over the other states that have implemented gay marriage without concern for its repercussions on the traditionally religious.
Without serious religious freedom guarantees, disturbing punishments have been meted out to people and groups who have acted consistent with their belief that marriage is between a man and a woman and that children are best served with both a mother and a father….
Being forced to perform a medical procedure or take photographs when you don’t want to smacks of involuntary servitude. Why do organizations like “Freedom to Marry” feel that gay freedom has to be won on the backs of other people’s lack of freedom to work or not work based on their beliefs?
If some states are going to have gay marriage, people like me need to be protected if we choose to continue to behave as if the definition of marriage that we think comes from God is correct, rather than that of the gay and lesbian community - and the government.
It’s not a coincidence that the first real protections for religious organizations in a gay marriage state came in the first place to implement same-sex marriage by legislative action rather than judicial fiat. The legislative process usually involves compromise, and the need to get a majority often leads to amendments that incorporate each side’s concerns.
The courts in Massachusetts, California, Connecticut and Iowa, however, have implemented same-sex marriage unilaterally, with dissenting voices relegated to, well, the dissents. It’s much healthier for our democracy to deal with its most heated issues in the legislative arena rather than in the courts.
Ideally, we would have federal legislation guaranteeing individual conscience rights when it comes to marriage. Barring that, conservative lawmakers ought to push for strong “Vermont clauses” in all future gay marriage legislation.
I don’t fully understand what the ‘Vermont clause’ does that other states — Massachusetts, Iowa, California, and Connecticut specifically — do not. Though Vermont’s statutory language seems to codify the principle, don’t each of the states imply such a religious exemption already? In fact, California’s In re Marriage Cases specifically said that there would be no infringement of religious freedoms and even applied it to individuals as well as organizations, something you criticized Vermont for falling short of doing.
I think you might be confusing state laws regarding non-discrimination and religious freedom with federal tax codes. Even with Vermont’s law stating that places of public accommodation will not be required to serve as sites for same-sex marriage ceremonies, federal tax law still dictates that such places will lose property tax exemption for refusing to serve gay and lesbian patrons — which is what happened in New Jersey, a state that you criticize for not having a law like Vermont’s.
Perhaps I am misunderstanding your point, but it seems to me that Vermont is not doing anything differently than the other states. They are merely explicitly codifying what the law already requires.
Thank you for your clarification.
Do you really believe what you wrote?
So if I own a store and put a sign out front saying “Will not serve Jews” or “Blacks not welcome” you would be supportive of my right to do that?
At root the problem is the false equivalence posited — unlike the textual reasons and the extraordianry historical basis for gaurding against racist identity politics, it does not seem possible to provide a coherent formulation for a classification based on “sexual orientation”
Besides, sexual orientation is not relevant to marriage which does not classify based on sexual orientation.
The arguments that claim it does so classify are self-defeating.
There is no sexual aspect that can provide a basis for SSM that would compare with the longstanding and vigorously implemented marital presumption of paternity, the provisions for consumation, and even lines drawn against adultery — all based on opposite-sexed sexual relations.
To read the arguments in favor of SSM as standing on a sexual aspect of an all-male or an all-female type of relationship or living arrangement is to ignore the lack of a sexual behavior or sexual attraction requirement in the law that would make it mandatory.
Yet SSMers will claim that, despite the marital presumption of paternity for example, the centrality of procreation is bogus simply because there is no law making procreation compulsory for each and every marriage.
Do away with the both-sexed basis of marriage, and you do away with the sexual aspect upon which marriage is recognized as a sexual type of relationship with public significance. It becomes sex-neutral in the bargain.
So the religious liberty and the freedom of conscience issues arise from the truth about marriage being denied by the Government — for the sake of identity politics alone. This undermines the basis for having laws and objective criteria for anti-discrimination. It goes much deeper than even the appropriation of marriage for nonmarriage purposes.
Family Fairness-
I didn’t know that federal tax codes had a sexual orientation non-discrimination provision. Can you provide a link?
Matt-
Of course I believe what I wrote. I happen to think that the government needs to have a high bar of reason to discriminate on the basis of race, but that private businesses shoul usually be free to do whatever they want without government interference. But even if I didn’t, our country has a consensus that racism is unacceptable. When it comes to gay marriage, the consensus is that it is not equivalent to marriage marriage. So for the minority to shove its opinions down the throats of the majority is what is unacceptable in my view.
I’m sorry, David. In re-reading my comment, I see that I was very unclear.
What I meant to communicate is that it was my understanding that the ‘Vermont clause’ was no different from any other state’s policies with the exception that Vermont’s is codified. The First Amendment already allows religious organizations the freedom to associate with whomever they please. A Vermont organization has no more protections after the enactment of this clause than they did before; never could they be forced to accommodate a same-sex wedding.
What happened in New Jersey is that an organization lost its property tax exemption on a pavilion because the state’s law requires that tax exempt locations be areas of public accommodation. Even if this clause were in effect in New Jersey, the outcome would be the same. The ‘Vermont clause’ opens with the language: “Notwithstanding any other provision of law”. The rest of the clause would have protected the organization from being forced to conduct the civil union ceremony (which they were already protected from anyway), but that “other provision of law” in the state’s property tax code would still be in force, would it not?
In short, I had thought that New Jersey and Vermont were no different before the adoption of the ‘Vermont clause’ and are no different after the adoption of the ‘Vermont clause’.
Now I could be incorrect in this analysis, which is why I previously asked for clarification. I am not an expert in property tax, so your insight into this area is welcome.
Family Fairness-
Are we both interpreting “Notwithstanding” the same way? If I say “Notwithstanding your desire for sushi, I’ve decided we’re having Italian,” then the first doesn’t happen and the second does. So “Notwithstanding any other provision of law” means *this* law overrules the others. Does that make sense? I could be wrong.
That would be the common definition, yes, but as we both know, the law has a fondness for being complex for complexity’s sake.
The phrase “notwithstanding any other provision of law” tends to be interpreted narrowly, and typically confines the preclusive effect only to other laws within the same scope. In this case, my reading of the entire clause is that it bars only civil remedies. Actions taken by the state (e.g. revoking property tax exemption) would not fall within the scope of the law and would still be permissible.
I understood this law to preempt those permitting civil suits against religious organizations for discrimination — an outcome I believe we both think just — but not those of the property tax code.
Since when should doctors be allowed to refuse anyone medical treatment on the basis of personal belief? The fact that doctors do it is bad enough, but justifying it or allowing it? No. That’s dangerous. A physician in the reproductive field must be prepared to deal with the whole spectrum of human sexuality. Religious convictions can easily be used to justify refusals to treat STDs or other medical conditions. Equally important: the mere fear that religion could be used as justification prevents people in need of medical care from seeking it out.
CO: ‘At root the problem is the false equivalence posited — unlike the textual reasons and the extraordianry historical basis for gaurding against racist identity politics, it does not seem possible to provide a coherent formulation for a classification based on “sexual orientation”’
Que? It’s perfectly possible, you just don’t want to hear. Sexual orientation is standardly defined in terms of consistent sexual attraction to persons of the same sex (”gay”) or opposite sex (”straight”) or some mixture (”bi”). People with a sexual orientation of “gay” exist and have a fair degree of common interest, in that they’re not well-served by the opposite sex relationships that society wants to foist on them. You can huff and puff and go into obscurantist denial about all this and probably convince a bunch of people who want to believe that gay people are just contrary, but increasingly you’re just going to look like a pompous and ignorant fool.
That does not withstand the rule used by SSM argumentation to attack the centrality of responsible procreation.
Marriage law does not use “consistent sexual attraction” for eligibility nor for ineligibilty.
And no place that issues a license to SSM has a legal requirement for “consisten sexual attraction”.
There is a public sexual aspect to marriage but it is extrinsic to the one-sexed arrangement — sexualized or not. See the sexual basis for the presumption of paternity. See the man-woman criterion which stands for sex integration. Marriage combines these as a coherent whole.
SSM argumentation attacks the coherency of marriage but also destroys the coherency of SSM. All that is left standing is the pro-SSM assertion of supremacy via gay identity politics. And that directly contradicts the SSM campaigns complaint about the supposed arbitariness of the marriage law.
Some SSMers are more pompous than others; and some are more ignorant; but all foolishly insist upon self-defeating rules of argumentation.
If “consistent same-sex sexual attraction is of such societal importance that it merits a special status, if that supplies the special reason for special status, then make SSM stand on its own two feet. Make the independant claim for a license to SSM based on what you imagine to be the public sexual aspect of SSM, at law.
Nah. Don’t bother. Identity politics trumps everything. Obscurantist denial? Really.