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Justice, marriage and religious liberty

March 5th, 2011

by Sheila Liaugminas

The Obama administration made the incoherent declaration last week that it will no longer defend in court a federal law it must enforce. And thus the Justice Department signaled the likelihood that injustices may lie on the landscape for a host of issues.

Starting with religious liberty and marriage law.

Robert P. George, perhaps the nation’s top Catholic scholar on marriage, described [U.S. Attorney General Eric] Holder’s defense of the administration’s position as “extremely worrying.”

He said Holder’s statement was “dripping with animus” against people who believe that marriage is “the conjugal union of a husband and wife.”

“He treats that belief as if it were a mere prejudice, as though it is motivated by a desire to cause harm to people,” George told CNA Feb. 24. “Of course, nothing could be further from the truth. It is a legitimate moral belief that has informed our law throughout history.”

The statement suggests to George the possibility that the Justice Department will “abuse its authority to suppress the religious liberty of people who dissent.”

“It raises the concern that the Justice Department will treat believing Christians, Jews, Muslims and others as though they are the equivalent of racists,” he warned…

George believes it is “imperative” for religious believers and those who support the traditional definition of marriage to defend their religious liberty. Believers should make clear to the Justice Department that they intend to fight any effort to restrict their liberty and their rights of conscience.

He said recognizing marriage as only between one man and one woman is “absolutely not” discriminatory in terms of constitutional law. He cited Justice Anthony Kennedy’s ruling in Lawrence v. Texas, a landmark 2003 case that declared laws against homosexual acts to be unconstitutional. That ruling, George said, has “no implications whatsoever for marriage.”

As Prof. George has pointed out to me on radio, emphatically, in 31 out of 31 times this issue has been put before the electorate in a vote, American citizens have upheld the traditional definition of marriage.

For George, these defeats for advocates of same-sex “marriage” explain why they are trying to prevent the issue from being decided in an election.

“If they really thought that the people were going their way… they would be out there ahead of us trying to get the issue on the ballot.”

Found here.

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  1. Sean
    March 5th, 2011 at 15:54 | #1

    Professor George may well be an expert on the catholic interpretation of marriage but by no means does he speak for all Americans on the topic. He is free to practice his faith beliefs, including whatever the Vatican dictates to him on marriage. He is not free to impose his faith beliefs on others. In no way are his faith beliefs on marriage imperiled, any more than his faith beliefs are imperiled when divorce is legal, or pre-marital sex, or adultery.

    A little honesty from “the faithful” would be awfully refreshing right about now.

  2. Heidi
    March 5th, 2011 at 18:39 | #2

    “The statement suggests to George the possibility that the Justice Department will ‘abuse its authority to suppress the religious liberty of people who dissent.’

    ‘It raises the concern that the Justice Department will treat believing Christians, Jews, Muslims and others as though they are the equivalent of racists,’ he warned…

    George believes it is ‘imperative’ for religious believers and those who support the traditional definition of marriage to defend their religious liberty. Believers should make clear to the Justice Department that they intend to fight any effort to restrict their liberty and their rights of conscience.”

    Paranoid much? Wow. He makes it sound like all the gays will be dragging straight people out of their homes or something!

    “He said recognizing marriage as only between one man and one woman is ‘absolutely not’ discriminatory in terms of constitutional law. He cited Justice Anthony Kennedy’s ruling in Lawrence v. Texas, a landmark 2003 case that declared laws against homosexual acts to be unconstitutional. That ruling, George said, has ‘no implications whatsoever for marriage.’”

    Well, had he bothered to read Justice Scalia’s dissent in that same case, he would learn that one of the stalwart conservatives of the Court believed that the Lawrence decision was the precursor to same-sex marriage. Lawrence stands for the proposition that anti-gay laws and unequal treatment need some kind of rational justification for them. Since there aren’t any rational justifications for the lack of marriage equality, same-sex marriage WILL eventually become the law of the land…it’s only a matter of time, whether it happens from the efforts of my generation or from those of my daughter’s generation, I do believe I will see it in my lifetime. It could even happen in the next five years, once a big enough case hits the Supreme Court.

  3. Bob Barnes
    March 5th, 2011 at 19:06 | #3

    Isn’t funny that the discrimination of a group of people is considered a neccesary part of religious freedom?

  4. words
    March 5th, 2011 at 19:23 | #4

    “Professor George may well be an expert on the catholic interpretation of marriage but by no means does he speak for all Americans on the topic.”

    This is true. Professor George is very much an expert on small c catholic interpretation of marriage. The majority of the American people who have been given the opportunity to vote on the definition of marriage have supported that traditional definition. It is Sean who is out of step with most Americans on the topic.

    “He is free to practice his faith beliefs, including whatever the Vatican dictates to him on marriage.”

    This is also true. However, Sean hasn’t supported the stereotype of the Vatican dictating to Profession George with any evidence. It is apparently difficult for Sean to believe that Professor George might agree with the Vatican of his own free will and volition after studying the matter. In fact, Professor George might be advising the Vatican, which does, I believe, seek input from distinguished thinkers.

    “He is not free to impose his faith beliefs on others.”

    Of course, he is not imposing his faith on others by expressing an opinion. Professor George should have the right to express an opinion without being defamed by the accusation that he is imposing his faith on others.

    “In no way are his faith beliefs on marriage imperiled, any more than his faith beliefs are imperiled when divorce is legal, or pre-marital sex, or adultery. “

    The issue is whether the Justice Department will abuse its proper role by treating believing Christians, Jews, Muslims and others as though they were racists using the force of law to stifle religious speech. Sean does not address this issue.

    “A little honesty from “the faithful” would be awfully refreshing right about now.”

    Nothing in Professor George’s statement was shown to be dishonest. Sean believes it is his civic duty to defame and insult those who disagree with him. If Sean’s talent for reasoned discussion and legal philosophy were on par with that of Professor George, perhaps Sean could find a leading university (like Princeton) to hire him as a professor with a named chair (like the McCormick Professorship of Jurisprudence). That would really allow him to fulfill his civic duty. As it is, his comments have only convinced me that Professor George is on to something when he warns of forces that would stifle religious speech if they could.

  5. Sean
    March 6th, 2011 at 05:30 | #5

    “The majority of the American people who have been given the opportunity to vote on the definition of marriage have supported that traditional definition. It is Sean who is out of step with most Americans on the topic.”

    This pre-supposes that voting is the proper remedy for this issue. It most certainly is not. Here’s why: we’re dealing with a right currently denied a small minority, not everyone. Voting to ban same-sex marriage keeps the majority’s right to marry in place, while denying it to the minority. That minority also happens to have a history of animosity aimed at it. This has “not to be put to a vote” written all over it!

    To vote to keep a right for yourself but deny it to someone else is fundamentally un-American and violates the Constitution’s guarantee of equal protection. To vote on the legal rights of a minority suggests that the truth is whatever the majority says it is. So, if enough people vote that the earth is flat, the earth is flat. Really?!

    This is a legal issue. If conservatives and religionists hadn’t turned it into a political issue, it could have been quietly settled by the courts. But never ones to miss a chance to create social disharmony, conservatives decided to find one more enemy to vilify: gay people.

    “In fact, Professor George might be advising the Vatican, which does, I believe, seek input from distinguished thinkers.”

    For a “thinker,” George isn’t very thoughtful. Instead of providing reasons why prohibiting gay people from marrying has some basis in reality, he relies on the usual scare tactics, “the people voted on it!” rhetoric, and the tired claims of threats to religious freedom (as if the religions that WANT to perform same-sex marriages somehow don’t count!). Seriously, this guy is a college professor?

    “Of course, he is not imposing his faith on others by expressing an opinion.”

    But he is earning a living advocating a public policy that hurts gay people and worse, children. Like Maggie Gallagher, Brian Brown and Jennifer Robach Morse, he is both earning money and public recognition with his opinion, and providing cover for other bigots by virtue of the credibility he gets via his academic position. Plus he throws in a dose of religion to get the piety nod. The victimized Christian card has already been overplayed and seems to have lost its impact, as more and more Americans turn away from that religion once they see and read about the behaviors of its members.

    “Professor George should have the right to express an opinion without being defamed by the accusation that he is imposing his faith on others. “

    But he IS aligned with a group, NOM, that uses the political system to impose what is primarily a religious view of civil marriage: that government-sanctioned marriage must be perceived by the public at large as a religious experience, in conformance with “God’s” perceived plan. Even Atheists, evidently, are creating legal unions based on God’s plan.

    “The issue is whether the Justice Department will abuse its proper role by treating believing Christians, Jews, Muslims and others as though they were racists using the force of law to stifle religious speech. Sean does not address this issue.”

    Let me address it now. The Justice Department is under no mandate to defend any particular law, and especially so laws found unconstitutional, which DOMA has been. That would violate the oath to uphold the constitution. Religious people who believe that homosexuality is a sin have already lost that battle legally: in 2003, the US Supreme Court ruled that homosexual behavior cannot be criminalized. That religions have decided to brand gay people as sinners isn’t the burden of gay people but the embarrassment of religions.

    Legal same-sex marriage doesn’t mean religionists can’t condemn gay people. It just means they don’t get the government’s approval and complicity in doing so, which really bugs them, since they know they are “right” on these social issues LOL. We’d all like the force of government imposing our world views on everybody else, right?

    Just as Christians have accommodated and often practice legal divorce, despite their savior’s insistence that they don’t divorce, so too will they accommodate legal same-sex marriage. As with all the other biblical do’s and don’ts, Christians know that just because something is legal doesn’t mean they’re allowed to do it. Mormons are to abstain from caffeinated beverages but I don’t see them working to outlaw coffee and tea. Why they’ve become obsessed with same-sex marriage makes little sense, in that context.

    “Nothing in Professor George’s statement was shown to be dishonest.”

    You think it’s honest to imply that your religious freedoms will be curtailed if same-sex marriage is legal? That’s simply a lie. You think it’s honest to imply that social upheaval will occur if same-sex marriage is legal? Also a lie. Lacking any substantive argument against legal same-sex marriage, George conveniently jettisons any pretense at academic conformity by relying on emotional appeals instead of logic and reason.

    “Sean believes it is his civic duty to defame and insult those who disagree with him.”

    No, I believe it is a civic duty to call out dishonest bigots who want to hurt a minority, including a minority of children. To stay silent is to insult the men and women who have given their lives to create and protect a nation that promises, among other things, to treat all its citizens equally.

    Professor George’s academic credentials and circumstances merely serve as a reminder that well-placed bigots exist. Maggie Gallagher claims a Yale degree (like George Bush, another rocket scientist). Yet her lack of intellectual firepower or actual reasons for opposing same-sex marriage have left her spinning her wheels with such silly platitudes as “children need a mommy and a daddy!”. When you point out that outlawing same-sex marriage does nothing to assure children get that mommy and daddy, and gives single parents a pass, Gallagher merely shrugs, confident that her dishonest but heart-rending appeal will continue to sway voters and politicians.

    Worse, she writes articles verifying the benefits of marriage, while advocating a public policy that wants to keep marriage away from a certain group (and the children being raised by that certain group)! Who does that? Who says something is good for people, but those people over there can’t have it?! In Maggie’s Yale-crafted brain, I guess such thinking passes for logic and reason.

  6. Sean
    March 6th, 2011 at 05:38 | #6

    “Sean believes it is his civic duty to defame and insult those who disagree with him.”

    Ok, so tell me what the proper reaction is to people who advocate a public policy position that marginalizes a group of Americans, denying them a right that other Americans take for granted, hurts the children of these marginalized Americans, and imperils the letter and spirit of our nation’s constitution?

    How is reserving marriage for straight people a virtuous position, when, say, reserving marriage for white people would be nearly universally condemned? Why does the anti-gay marriage NEVER express concern that the constitutional rights of gay and lesbian Americans are being trampled? Would it be so hard to say, “Gee, I think marriage should be limited to opposite-sex couples, but I’m uncomfortable that gay and lesbian Americans’ rights might be getting violated….”

    I’d like to read Prof. George’s logic and reason for why he thinks straight people get to decide this issue in the first place. Lay that groundwork: explain why a majority straight population gets to decide whether to extend marriage rights to a minority gay population. There’s certainly no historical basis in this country for the idea of a majority determining the rights of a minority.

    I’d like to understand the intellectual framework that supports this key aspect of marriage discrimination: that the majority straight population should determine this (or any other right) of the minority gay population.

  7. Mont D. Law
    March 6th, 2011 at 08:26 | #7

    [He said Holder’s statement was “dripping with animus” against people who believe that marriage is “the conjugal union of a husband and wife.”]

    No proof offered.

    ]“He treats that belief as if it were a mere prejudice, as though it is motivated by a desire to cause harm to people,”]

    No proof offered.

    [The statement suggests to George the possibility that the Justice Department will “abuse its authority to suppress the religious liberty of people who dissent.”]

    No proof offered.

    [He said even prior to the administration’s latest decision, the Justice Department has mounted only half-hearted efforts to defend the marriage law in court. ]

    George just made a bunch of fact free statements that show he is stupid or dishonest. However people feel about same sex marriage the legal arguments against it are not winning. In a nation of laws not men that makes it a loosing proposition. That is until leland’s mob comes for us.

  8. mean spirited
    March 6th, 2011 at 16:45 | #8

    Mont D. Law continues his mean spiritedness by accusing Professor George of stupidity or dishonesty. To resort to such insults does not raise the level of the discussion. It seems to me that Mont’s statements are the ones “dripping with animus” to use such terms.

    An attempt to frame traditional marriage as the equivalent of racism does ipso facto drip with animus, since racism is universally condemned and suppressed in law. We have seen elsewhere on the blog where a government is using its power to jail parents who dare to disagree with the German State (we’ve seen that movie before, haven’t we?), in this case over sexual education. If the state has the power to suppress racism, and if religion is equated with racism, then the state has the power to suppress religion, and the First Amendment is conveniently disposed of.

    Does Mont D. Law really believe that the Obama administration has mounted a vigorous defense of DOMA, while simultaneously pledging to repeal it? Is there any other law passed by such sweeping majorities in living memory that the DOJ now declines to defend?

    A government that rules without the consent of the governed is neither just nor democratic. Should we also conveniently forget the Declaration of Independence while disposing of the First Amendment? Whenever the people have been allowed to defend marriage, they have upheld the traditional definition of marriage, thus preserving the essential public purpose of marriage. When the representatives of the people where allowed to vote on the federal DOMA, they passed it overwhelmingly. Does the Attorney General really think that the vast majority of Senators and Representatives at the time, not to mention the President, were racists or bigots? Whatever happened to repealing a law by getting the votes in Congress? Would Attorney General Holder calmly accept the views of a future Republican administration that killed Obama Care by refusing to defend it in court?

  9. Sean
    March 6th, 2011 at 18:50 | #9

    “A government that rules without the consent of the governed is neither just nor democratic.”

    A government that defies its nation’s constitution also creates a few problems, no? DOMA has been declared by a judge to be unconstitutional. President Obama swore to uphold the constitution. It’s his call to determine if his allegiance to the nation’s constitution matters more than hurting gay families.

  10. Mont D. Law
    March 6th, 2011 at 19:07 | #10

    [An attempt to frame traditional marriage as the equivalent of racism does ipso facto drip with animus, since racism is universally condemned and suppressed in law.]

    I just reread Holder’s statement and I see no animus. Perhaps you (unlike George) would like to quote the statement directly and point out the appropriate passages.

    [We have seen elsewhere on the blog where a government is using its power to jail parents who dare to disagree with the German State (we’ve seen that movie before, haven’t we?), in this case over sexual education. If the state has the power to suppress racism, and if religion is equated with racism, then the state has the power to suppress religion, and the First Amendment is conveniently disposed of. ]

    Not sure how the actions of Germany are relevant here. Other states do things differently as is their right. Do you have evidence that the American state is doing anything like this? I am pretty sure Germany doesn’t have a First Amendment, so not sure how that’s relevant either.

    [Does Mont D. Law really believe that the Obama administration has mounted a vigorous defense of DOMA,]

    You and Professor George are the one accusing the Obama administration of not mounting a vigorous defense of DOMA in the courts. Surely you can come up with examples of this, since you think it is so obvious.

    [...while simultaneously pledging to repeal it?]

    I don’t recall the Obama adminstration pledging to repeal DOMA. Do you have quotes to that effect from the administration?

    [Is there any other law passed by such sweeping majorities in living memory that the DOJ now declines to defend? ]

    You would have to clarify why the magorities make a difference to your argument but there are lots of examples of Federal adminstratiobs declining to defend laws in court because they decided they were unconstitutional. Here’s two:

    The Ford Justice Department refused to defend the post-Watergate campaign finance law

    and

    The Reagan administration refused to defend the independent counsel law. There are others.

    [A government that rules without the consent of the governed is neither just nor democratic.]

    That Obama won the election by a clear majority make this argument toothless. Under the American system of government Obama has the consent of the governed, until he impeached or until he looses the next election.

    [Whenever the people have been allowed to defend marriage, they have upheld the traditional definition of marriage, thus preserving the essential public purpose of marriage.]

    As is there right to do so. Marriage in the US is controlled by the states and nothing in Holder’s statement or the Obama administration’s policy prevents states from continuing to do that. To transfer those decisions to a federal level would require a constitutional amendment. The process of amending the constitution is a clear one.

    [Would Attorney General Holder calmly accept the views of a future Republican administration that killed Obama Care by refusing to defend it in court?]

    I assume he would have no choice but accept it. I also assume that if a Republican won in 2012 the new administration would do just that. To the cheers of Republicans everywhere, including you & Robert George.

  11. Chairm
    March 7th, 2011 at 01:38 | #11

    Bob Barnes, it is funny that gay identity politics is supposed, by yourself, to be supreme over and above religious liberty and freedom of conscience. You are among those whose pro-gay bigotry is considered a neccesary part of the SSM campaign and its argumentation and rhetoric.

  12. Mark
    March 7th, 2011 at 14:32 | #12

    @Chairm
    “Bob Barnes, it is funny that gay identity politics is supposed, by yourself, to be supreme over and above religious liberty and freedom of conscience. ”

    No one is denying your religious liberty nor freedom of conscience, Charim. You, however, want to deny the rights of gays and lesbians in this country. Do not their beliefs at least deserve SOME recognition?

  13. Chairm
    March 7th, 2011 at 16:36 | #13

    I addressed my comment to Bob Barnes. Mark’s retort is irrelevant.

  14. Chairm
    March 7th, 2011 at 16:38 | #14

    Heidi your account of Scalia’s Lawrence opinion is misleading.

  15. Mark
    March 8th, 2011 at 11:43 | #15

    @Chairm
    “I addressed my comment to Bob Barnes. Mark’s retort is irrelevant.”

    Hm, you seem to respond to all sorts of posts that are not directed at you, Chairm. I will remember to point out your hypocrisy in the future.

  16. Sean
    March 8th, 2011 at 16:31 | #16

    @Chairm

    “it is funny that gay identity politics is supposed, by yourself, to be supreme over and above religious liberty and freedom of conscience.”

    What a ridiculous notion! We’re talking about equality for gay and lesbian couples, not any kind of supremacy. Christians will still be able to teach their children to hate gay people, if that’s what you’re worried about. There are still white people who teach their kids to hate black people, I suspect, if you want proof. Christian hatred will still be permissible, but limited in scope and impact on others.

  17. Chairm
    March 9th, 2011 at 10:46 | #17

    The content of Sean’s retort is also irrelevant to the query I asked of Bob Barnes.

  18. Ruth
    March 9th, 2011 at 11:21 | #18

    @Sean
    We are talking about two moral philosophies.
    One will win, and one will lose.
    You are obsessed with hatred.
    Have you ever been sweet-talked?
    Has anyone ever given you a load of feel-good words, but not cared about you at all?
    The opposite is also possible.
    Someone can disagree with you and make you feel uncomfortable and say “no” to what you want, but care about you very much.
    Open yourself to that possibility.

  19. Sean
    March 9th, 2011 at 17:17 | #19

    “We are talking about two moral philosophies.
    One will win, and one will lose.”

    Who, exactly, loses when gay and lesbian Americans get the same rights as straight Americans? Christians are still free to condemn gay people as an expression of their faith, just as they condemn Jews, Muslims and other non-Christians, or Atheists, or divorced persons, or adulterers, or shellfish eaters, or people who dishonor their parents, or cover their neighbors property, etc.

    They just can’t harm them commercially, legal, civilly or physically. In other words, they have to treat them equally to straight people. No one says you have the right to like the people you have to deal with in your business affairs or in your neighborhood.

  20. Deb
    March 10th, 2011 at 05:25 | #20

    @Sean

    “Who, exactly, loses when gay and lesbian Americans get the same rights as straight Americans? Christians are still free to condemn gay people as an expression of their faith, just as they condemn Jews, Muslims and other non-Christians, or Atheists, or divorced persons, or adulterers, or shellfish eaters, or people who dishonor their parents, or cover their neighbors property, etc.”

    ????????????

    Do you mean covet not cover?

    Eating shellfish is not banned in most Christian faiths.

    To be Christian is to “condemn” no one.

    This paragraph of yours is puzzlingly bigoted… and not very tolerant I may add.

  21. Ruth
    March 13th, 2011 at 23:25 | #21

    @Sean
    We currently have a good list for eligibility for sexual relations:
    Living
    Humans
    of Opposite Sex
    Unmarried
    Adults
    Two in number
    Who are not closely related.
    The only change that needs to be made in our marriage laws is to make a marriage much more difficult for one party to dissolve.
    Our society, in order to be just, needs to acknowledge the interests of children in having a Mommy and a Daddy who are married to each other for life.
    Anything else must be acknowledged as a loss.

  22. March 16th, 2011 at 12:39 | #22

    @Deb

    When a person says that another person is an abomination and should be put to death, that person is in fact condemning that other person.

    Perhaps your point here is that Christians do NOT believe that homosexuality is abomination, and thus are NOT condemning anyone. In which case gay men and women should be able to get married. You cannot logically have it both ways.

    Do you believe in Leviticus or not? And if you believe in that particular PART of Leviticus, why not the rest of it?

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