Almost there...

Monday, June 16, 2008

Finding Balance

It's a tricky thing. I can't tell you how happy I'll be to celebrate Suzi and Sandy's legal marriage. They were married in the eyes of their god and their community eight years ago, but starting tomorrow, they'll be able to have a marriage licensed by the state.

And yet, there is a balance that needs to be found. A story on Morning Edition reminded me how easy it is to tip over the other side. A basic separation of church and state is what drives this issue for me. The religious beliefs of some should not be able to overwhelm the reasons behind our laws. There is little difference between a man and woman and a man and man marrying in terms of the legal implications. There's little needing rewriting beyond some basic pronounce and replacement of "spouse" for "husband" or "wife." There is nothing about the legal status of one homosexual couple getting married in the eyes of the government that in any way damages the meaning of a hetero couple getting married in the eyes of the government, their church, or their community. It does not destroy the "sanctity of marriage." But the tricky bit is when it comes to all of the social and commercial implications. Can a wedding photographer only choose to photograph hetero weddings? Can a bakery only sell cake to hetero couples? As it turns out, we answered this question as a nation years ago with our repudiation of the idea that restaurants could be whites only and such. But what about the church that gets a special tax-exempt status from the government and hosts weddings. Can they refuse to rent their space on the basis of gender of the couples? What if they rent willingly to hetero couples who are not part of the congregation? What if that homosexual couple is part of the congregation? Where is that line? Where does the right to exercise religious freedom versus the right of couples to equal access tip? This is the really dangerous stuff that will make a backlashing constitutional amendment much more likely to pass.

And yes, we've drawn that line, but have we drawn in it exactly the right place? I'm not sure. Reading Carol Lloyd's article on ADA compliance in San Francisco reminds me how easy it is to err on the wrong side of the line. There's an unreasonable burden being placed on many small business owners to retrofit spaces to be ADA compliant in a city that is old, built on hills, and full of odd spaces that hardly fit the mold of a modern business. Does the need of one or two potential patrons in wheelchairs necessarily fully trump all other needs? How long before so many of these weird, odd-shaped spaces are simply shuttered in favor of things moving to cheaper, modern strip malls in the 'burbs, or worse yet, until those unique businesses are lost forever?

So how do we find balance? How do we accommodate the needs of the handicapped and fit them into our quirky, mismatched world? How do we find a balance to live and let live and let those with different beliefs coexist without running over each other? Is it even possible? Or do we have to adjudicate and legislate every trade-off and make winners and losers in every case?

10 Comments:

  • I think its a very tricky line between a civil ceremony and a marriage.

    I believe that Homosexual adult couples are entitled to the same rights and privileges that Heterosexual couples are afforded. In other words I think San Fransisco is doing the right thing. I also think they will be rewarded monitarily for this decision which probably had something to do with it.

    I also do believe that churches and other religious bodies should also have the right to define marriage however they choose. I don't feel that the Catholic church or any other belief system need change simply by popular opinion.

    The state does sorta operate on a vox populi system and does need to attend to its citizens demands.

    The church is ostensibly doing God's (or Zool's) will and should carry on according to that directive as best they can determine it.

    By Blogger mice, at 4:48 PM  

  • As it turns out, we answered this question as a nation years ago with our repudiation of the idea that restaurants could be whites only and such.

    The issues are not the same, however. Religion is treated differently to personal bias, and the court has not so ruled in the case of religious freedom.

    Where does the right to exercise religious freedom versus the right of couples to equal access tip?

    It tips precisely where the court tries to force people to act against their own religious beliefs. No organization opposed to any act on religious grounds should be forced to subvert its beliefs. There is no fundamental right to be married at any given venue or be photographed by any given professional.

    How do we find a balance to live and let live and let those with different beliefs coexist without running over each other?

    Church A won't marry you? Fine, get married in church B. Photographer C won't take your photos? Big deal: hire photographer D.

    This is classic hypocrisy: don't force your beliefs on me, but I'm going to run to the court to force my beliefs on you.

    It should be no surprise that the same left-leaning courts which legalized homosexual marriage are those which oppress religion. This will eventually go to the Supreme Court.

    Lustberg says. "Religion shouldn't be about violating the law."

    Nonsense. He has it exactly backwards: law shouldn't be about violating religion.
    How does that first amendment go? Ah yes: make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

    By Blogger Michael, at 11:59 PM  

  • The Catholic Church is the single most successful corporation of all time

    Technically it is not a corporation but a sovereign state. And I bet you can think of a few states worth more than a mere $100 billion! :-) Even as a corporation it would be lucky to make 20th on the Forbes 500.

    they get huge tax breaks because why?

    Because it is an establishment of religion (see above), and hence immune to tax law.

    In some slight … defense of the Catholic Church, I'd point out that in terms of its impact in the U.S., it has been far less extremist, conservative, politically-directive, and violence-sponsoring than the Fundie Protestant religions.

    Would this include or exclude withholding communion from proponents of abortion? And please name a mainstream fundamentalist Protestant denomination that sponsors violence or retract this calumny.

    I find Falwell and his compatriots far more terrifying than the Pope. (Of course, I'm not an altar-boy.)

    Clearly, but perhaps you should have been. If you actually knew Falwell as Al Sharpton did, you would know better.

    By Blogger Michael, at 12:55 AM  

  • I hate to throw gas on this fire, but the Catholic church is not an establishment of religion. "Establishment" in that context in American constitutional law means something that is given official status over other, otherwise similar, things. If the Catholic Church got tax breaks but other churches didn't, or if the Catholic Church got better tax breaks than other churches, then it would (probably) be an "established" religion, and the law(s) creating that scenario would constitute an "establishment" of the Catholic Church.

    Churches are given tax breaks because the IRS has decided to give them tax breaks for whatever inscrutable reasons the IRS has for doing anything. They are permitted to give churches tax breaks because Congress has the power to decide what the tax laws are. Churches aren't entitled to preferential tax treatment; it's just long-standing tradition in this country to give it to them.

    By Blogger Natalie, at 10:18 AM  

  • It's a tricky line. While I feel strongly that homosexuals should be allowed to marry, I do not think every church should be required to allow them to be married in their church. Causing them to violate some point of their religion is not going to promote social harmony. (even if that point seems to violate higher principles of their religion like universal love). I see a similar point being that says a Catholic church shouldn't be required to perform a Hindu marriage for Hindus. (not perfect example, yes I know).
    Then again, there are religious precepts that fly in the face of established laws and most people would agree those laws are good. A church that explicitly discriminated on the basis of race would be a problem. Religious organizations which use peyote in ceremonies have run into legal trouble.

    The ADA issue is tougher. I think some grandfather clause or business size limit or even govt help is in order there. As a society, it's important that disabled people are able to participate in society as fully as possible. Especially simple things, like crossing the street (which requires curb cuts) and being able to go grocery shopping and basic stuff. For some smaller shops, in certain locations it may be a financial burden, rather than lose the store some exemption should be given, but you can't give so many exemption, that the disabled person is back where they started from. I wonder how Cambridge with it's hundreds of years old buildings handles those issues with Stephen Hawking.

    By Blogger Chris, at 11:05 AM  

  • Michael (not mice),
    The Amendments are not absolutes, but rather intended to be interpeted with some common sense (which incidentally is why jurists who describe themselves as a strict literalists are hypocrites, jokes or both).
    The First Amendment also says "no laws abridging the freedom of speech" and yet, fraud, slander and even noise ordinances exist. In the same way, religious organizations are required to follow the laws of the country. You can't break a law and then claim religious exemption.
    There's building codes, wage and labor laws, food safety laws, all of which apply to churches.

    By Blogger Chris, at 11:59 AM  

  • In answer to your question, Ammy, I think the answer is to give way to one another in a spirit of humility. Constitutions and statutes create winners and losers, by definition. Laws create rights, and rights create power. In turn, rights impose obligations on others, and the powers they invest in some take away the powers of others. That's just the fundamental nature of rights.

    Operating within a rights-based framework will create winners and losers, and there's no way to help that while still using the concept of rights as the basic framework. That's fine in some cases - sometimes it's necessary to make somebody a loser. But if one is looking to create balance and harmony between people, then in my opinion everybody involved needs to drop the rights framework - stop talking about, insisting on, defending, and vindicating them - and start over with a different governing principle altogether.

    By Blogger Natalie, at 2:10 PM  

  • the Catholic church is not an establishment of religion.

    "Establishment: an organized staff of employees or servants, often including … the building in which they are located: … [a] public institution, a school, factory, house of business, etc" (OED).

    "Establishment" in that context in American constitutional law means something that is given official status over other, otherwise similar, things.

    It is not so simple. There are competing schools of thought, separationist and accommodationist. You take the former; I take the latter, which seems a more natural reading of the literal text.

    Churches are given tax breaks because the IRS has decided to give them tax breaks for whatever inscrutable reasons the IRS has for doing anything. … it's just long-standing tradition in this country to give it to them.

    On the contrary: while a tax exemption is explicitly neither prohibited nor required under the First Amendment, "[t]he reasoning behind making churches tax-exempt and unburdened by IRS procedures stems from a First Amendment-based concern to prevent government involvement with religion" (John Ferguson, "Tax Exemptions", The First Amendment Center).

    Causing them to violate some point of their religion is not going to promote social harmony. (even if that point seems to violate higher principles of their religion like universal love).

    Indeed, but "seems" would be the operative word: this stems from a fundamental confusion between eros and agape.

    Michael (not mice)

    I'm afraid you've lost me here! :-) What is the deficiency in my education?

    The Amendments are not absolutes, but rather intended to be interpeted with some common sense

    There are few absolutes in law, but is this common sense to be activist or originalist? After all, "[i]t is the law that governs, not the intent of the lawgiver".

    (which incidentally is why jurists who describe themselves as a strict literalists are hypocrites, jokes or both).

    Because they disagree with your opinion?

    The First Amendment also says "no laws abridging the freedom of speech" and yet, fraud, slander and even noise ordinances exist.

    Simply put, no arbitrary law may restrict speech (or an establishment of religion for that matter). Under the doctrine of strict scrutiny, only in the case of compelling governmental interest will a law be sustained by the High Courts. For example, in 2000 the Virginia Court of Appeals reversed the conviction of Charles D Johnson, a street preacher convicted under Richmond's noise ordinance.

    By Blogger Michael, at 3:44 AM  

  • It is not so simple. There are competing schools of thought, separationist and accommodationist. You take the former; I take the latter, which seems a more natural reading of the literal text.

    You're confusing two schools of thought as to how religions can be established for two schools of thought as to what establishment means for purposes of the Establishment Clause. Both the separationist and accomodationist views of the Establishment Clause are views of what it means to "establish" a religion. The separationist view of the Establishment Clause says that what it means to "establish" a religion is to make it the officially recognized religion of the state (this was the dominant view of what "establish" meant with respect to religions in the 18th century). By corollary, modern separationists argue that the Establishment Clause prohibits the government from aiding religion in any way. The accommodationist view of the Establishment Clause says that government aid of religion is not per se an establishment of religion, so long as all religion is helped equally and the aid is given for a secular purpose or in order to achieve the aims of the Free Exercise Clause. The Catholic church is an "establishment" of religion in the vernacular sense, yes. But it is not an establishment for purposes of the Establishment Clause of the United States Constitution.

    On the contrary: while a tax exemption is explicitly neither prohibited nor required under the First Amendment, "[t]he reasoning behind making churches tax-exempt and unburdened by IRS procedures stems from a First Amendment-based concern to prevent government involvement with religion" (John Ferguson, "Tax Exemptions", The First Amendment Center).

    That's true, but not the only reason. Everyone agrees that tax breaks are neither required nor prohibited, and the federal Supreme Court has recognized at least three grounds on which tax breaks for religions may be found not to violate the Constitution. The first is historical (beneficial tax treatment of religions pre-dates independence in this country); the second is that churches are good for the community (the government is entitled to use tax laws to promote religion on the theory that religion generally is good for the state, just as it can use the tax laws to promote secular charities on the theory that charities are good for the state - so long as all religions receive equal treatment); the third is that doing anything else might constitute excessively entanglement of the government with the church. See Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970). Any of those grounds, according to the Walz court, would be sufficient to support tax breaks for religions.

    By Blogger Natalie, at 7:04 AM  

  • Both the separationist and accomodationist views of the Establishment Clause are views of what it means to "establish" a religion.

    We disagree: you appear to assume that "establishment" has the same meaning in both interpretations, which is not necessarily so.

    The accommodationist view of the Establishment Clause says that government aid of religion is not per se an establishment of religion

    Accommodationists interpret the Establishment Clause to prohibit the preference of one (establishment of) religion over another (establishment of religion). Preference does not necessitate federal establishment.

    Now you can certainly argue that it should be interpreted as "Congress shall make no law establishing religion", as one early version was written. But that goes to intent, and it is the law and not the intent of the lawgiver that counts. And so we must look at the plain meaning, which refers to "an establishment" rather than "the establishment" of religion. The latter would lend itself to your view, whereas the former supports mine.

    The Catholic church is an "establishment" of religion in the vernacular sense, yes. But it is not an establishment for purposes of the Establishment Clause of the United States Constitution.

    By whose diktat? Those in Congress voted for the language; those in the States who voted to ratify it read it in the vernacular.

    the third is that doing anything else might constitute excessively entanglement of the government with the church.

    Which refers directly back to the First Amendment, and as such should be seen as the strongest of the three bases.

    See Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970)

    In particular: "It is significant that Congress, from its earliest days, has viewed the Religion Clauses of the Constitution as authorizing … tax exemption to religious bodies."

    By Blogger Michael, at 9:24 AM  

Post a Comment

<< Home