Tuesday, May 14, 2013

The legislative amendment that failed in Minnesota - the right to discriminate as religious liberty

The religious liberty to discriminate.

The right to discriminate is a theme that seems to have begun with the US Conference of Catholic Bishops and it is framed as "religious liberty." It has made its way through National Organization for Marriage and the religious right to the floors of legislative bodies in Rhode Island, Delaware and now Minnesota. The full text of the amendment as t the end of this post.

The Bishops had a problem. They could not oppose marriage legislation on the basis of religion; Doing so is a violation of the Establishment Clause of the First Amendment. Therefore, they manufactured the idea that marriage equality was an offense to religious liberty. It was intended to thwart equality. Failing that, it would make same-sex marriage unequal in society

The real victims of discrimination are those being discriminated against.

The proposed amendment went well beyond just "protecting" someone like the hapless florist, Barronelle Stutzman, owner of Arlene's Flowers and Gifts in Richland, Washington who decided that her religious convictions prevented her from providing flowers to a same-sex wedding. After all, don't we recognize that arranging flowers is God's work?

Those who come to the defense of Ms. Stutzman fail to appreciate the true victims. Imagine how belittled the gay couple must have felt. They were told by Ms Stutzman "you are not really equal." Stutzman is no hero, no champion of religious liberty. Ms. Stutzman is a garden variety bigot. I find no difference between her and Lester Maddox with his ax handles. Discrimination hurts not only the individual but a group of people identifiable by a common characteristic.

What this amendment sought to do was to reverse decades of civil rights legislation. 

The fundamental premise of such lawmaking since the 1960's was that public accommodations     providers of goods or services to the general public     could not discriminate. Originally, such prohibited discrimination was on the basis of race, creed, national origin or religion. More recently, many states (including Minnesota) and municipalities have broadened that to include sexual orientation.

Yet this amendment would have specifically permitted individuals to withhold providing goods and services based on "sincerely held religious beliefs." Ultimately, it is no different from a restaurant owner saying "I don't want to serve Jews, African-Americans, Muslims or [fill in the blank]."

Who could challenge what "sincerely held religious beliefs" means or if someone has them?

If the Knights of Columbus (which is really an insurance company) makes an event venue available to the public then that public includes same-sex couples. Of course, I would discourage people from providing revenues to the Knights (some of which are used to oppose equality) but that's not the point.

If all of this wasn't bad enough, they included two clauses that would have increased the severity of this amendment. The first was liberal interpretation. This would have meant that "sincerely held religious beliefs" would be a presumption just like the presumption of innocence making it virtually impossible to prosecute anyone for discrimination when it came to providing goods or services to a same-sex wedding.

"We don't serve homosexuals."

Imagine how obnoxious it would be for an establishment, say a tuxedo rental, to post a sign saying we don't serve homosexuals. They would actually be permitted to ask if the services would be used for a same-sex wedding. Yet it would be perfectly legal if this amendment had passed. Is that really the kind of society that we want to live in?

The second clause was inseverability. Basically, this would mean that if any of this nonsense was deemed unconstitutional then same-sex marriage would cease to exist in Minnesota. In other words, if freedom to discriminate was struck down then the freedom to marry would also die.

Opponents to equality had no shame in proposing such an amendment. If I recall correctly 30 Minnesota Senators had no problem voting in favor of public discrimination.


Sec. 2. [363A.261] FIRST AMENDMENT RIGHTS.

Subdivision 1. Religious entities. (a) No religious association, corporation, society , organization, or other entity supervised or controlled by or in connection with those entities, or individual acting in the scope of employment for a religious entity , or clergy or minister , may be required to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage, or treat any marriage as valid for any purpose, if that action would cause the entity or individual to violate their sincerely held religious beliefs.

(b) The exception in paragraph (a) applies to employees, agents, and volunteers acting within the capacity of their employment or responsibilities with a religious association, religious corporation, or religious society.

Subd. 2. Private persons. No person may be required to provide services, accommodations, facilities, goods, or privileges that assist or promote the solemnization, formation, or celebration of any marriage, or that facilitate the development or preservation of any marriage, if that action would cause the person to violate the person's sincerely held religious beliefs.

Subd. 3. Immunity . No refusal to provide services, accommodations, facilities, goods, or privileges protected by this section may result in a civil or criminal cause of action or complaint, including an action or proceeding under this chapter , or any action by the state or a political subdivision to penalize or withhold benefits or privileges, including tax exemptions or governmental contracts, grants, or licenses, from any protected person.

Subd. 4. Liberal construction. The exemptions in this section further the compelling governmental interest of protecting first amendment rights and must be liberally construed to provide the utmost protection for those rights.

Sec. 10. INSEVERABILITY . Notwithstanding Minnesota Statutes, section 645.20, if any provision of this act is found to be unconstitutional and void, the remaining provisions are not severable and are void.

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