August 03, 2013

How Long Until This Sort Of Gay Marriage Litigation Comes To America?

Because, of course, this matter has NEVER been about tolerance or freedom -- it is about coerced acceptance and normalization.

Wealthy gay dad, Barrie Drewitt-Barlow, says he and his civil partner Tony will go to court to force churches to host gay weddings.

He told the Essex Chronicle that he will take legal action because “I am still not getting what I want”.

A Government Bill legalising gay marriage passed Parliament recently but it included measures to protect churches from being forced to perform same-sex weddings.

Mr Drewitt-Barlow said: “The only way forward for us now is to make a challenge in the courts against the church.

“It is a shame that we are forced to take Christians into a court to get them to recognise us.”

He added: “It upsets me because I want it so much – a big lavish ceremony, the whole works, I just don’t think it is going to happen straight away.

“As much as people are saying this is a good thing I am still not getting what I want.”

There you have it - he's "not getting what I want" and will therefore demand "what I want" and use the courts to force others to give him "what I want" -- despite the fact that this means government forcing religious groups and religious institutions (as well as religious individuals) to act contrary to their religious beliefs and therefore in violation of what has long been recognized as a fundamental human right.

And remember -- when the law legalizing gay marriages was passed in the UK, it made a specific provision allowing churches to opt out of performing them. Now that is being subjected to challenge in the courts -- and given the hostility to Christian teachings against homosexuality, I would not be surprised to see this exemption overturned.

Not, mind you, that the litigious couple are receiving universal support for their lawsuit. Certainly those who support religious freedom have a problem with it, but they are even getting some push-back from within the gay community. But there was never much doubt that there would be such legal action, by either willful couples or militant organizations who believe that "not getting what I want" is a violation of human rights that trumps freedom of conscience and the freedom to practice one's religion as an individual and a community in conformity with that conscience.

Which brings us to America. Professor Althouse, one of my favorite bloggers, is just certain that such a thing could never happen in the United States.

They've got an established church over there. We have the separation of church and state, freedom of religion, and freedom of speech, and a legal tradition of defending these rights. And that makes all the difference, in case you are worried that as gay marriage becomes the legal norm, our churches (and other religious organizations) will be required to perform weddings for same-sex couples.

But will it be that simple? We've already seen religious freedom of individuals and couples limited proscribed when it comes to refusing to cover same-sex spouses on insurance policies, refusal to participate in gay weddings as a contractor, and refusal by religious organizations to forbid gay marriage ceremonies or receptions on their properties. How much longer until some enterprising judge somewhere in America -- perhaps a state judge, perhaps a federal one -- to rule that there is a right to have a gay marriage in the house of worship of one's choice and that refusal of clergy to perform same-sex marriages is not an exercise of religious freedom but instead of invidious discrimination? How long until we find the refusal of a church to marry a gay couple to be the legal equivalent of the refusal of a restaurant to serve racial minorities? It takes very little imagination (I'd argue none) to envision a lawyer with a gay rights group, a professor at a prestigious law school, or a law student who made the law review working up the arguments right now -- "church as public accommodation", "incorporation vitiates First Amendment rights", "performing marriages that are civilly valid subjects ministers to civil rights laws" or even some expansion of the argument from the Bob Jones University case that would strip tax exemptions from churches that do not conform to the spirit of the age on gay marriage. Heck, they will certainly have plenty of foreign law to appeal to as well. So rest assured that there will be an attack through the courts on the autonomy of religious institutions with regards to solemnizing gay marriages.

Please note -- this post is not one dealing with the morality or immorality of homosexual relations, nor is it one arguing for or against gay marriage. Rather, it is one that notes that the goalposts keep getting moved on gay issues. I'm old enough to remember 40 years ago when the gay community was quite specific that they just wanted to be left alone and that nobody was ever going to be forced to go against their religious beliefs in how they operated their business -- and certainly nobody was going to have to recognize or accept men marrying men or women marrying women. We've now moved beyond "being left alone" to a situation where acting on traditional religious beliefs regarding homosexuality is in most places illegal and gay marriage is becoming more common and may yet be constitutionalized by the courts. Where does this leave the rights of churches -- and religious believers -- with regard to issues of sexual orientation and same-sex marriage and how will society respect the rights of religious institutions and religious believers, if at all? That is a question that we as a society must settle and settle soon, lest an American Barrie Drewitt-Barlow forces "what I want" upon everybody else, regardless of what they want.

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