When it comes to same-sex marriage, the Civil Rights Act cannot trump the First Amendment *UPDATED*

Gay-flowerI find irritating gay marriage supporters’ reliance on the Civil Rights Act of 1964 to justify their contention that religious individuals cannot opt out of actively participating in gay marriage ceremonies.  They contend that the Act mandates that (1) a Christian baker, who welcomes gays seeking all other baked goods, must bake a gay-themed wedding cake; (2) a Christian photographer, who would happily take pictures of a gay birthday party, must photograph a gay wedding; (3) a Muslim florist, who would be delighted to sell bouquets to a gay couple, must bedeck a church with flower arrangements for a gay wedding; and (4) an orthodox Jew who owns a small hotel, and who doesn’t quibble at all when same-sex couples check into a room where they have privacy, must host a gay wedding in his reception hall.

I contend that these activists are dead wrong about the scope of the Civil Rights Act.  While, the Civil Rights Act s a virtuous law, it cannot trump the First Amendment.  I’ve made a handy-dandy chart outlining why I believe this to be the case (click on image to enlarge):

Bill of Rights versus Civil Rights Act 1

My usual disclaimer about my views regarding same-sex unions:  It is not semantic quibbling to say that I support civil unions but do not support same-sex marriage. While a religious organization can perform a marriage, it cannot perform a civil union. Civil unions are solely the state’s provenance. Leaving civil unions to the state and marriage to religion perfectly preserves the separation of church and state. (And as always, irony abounds here, because it is the Left that routinely sets up a hullabaloo about even the most minute intersection between church and state.)

If I had my way, I would remove marriage from the government’s vocabulary and make all unions — whether they are heterosexual or same-sex relationships — “civil unions.” States can then promote whatever unions they deem most beneficial for individuals, for children, and for society as a whole, while religious individuals and institutions need not worry that they will be targeted because they hew to the traditional definition of marriage as a union between a man and a woman (or women).

People running the entire gamut of the gender-orientation spectrum — as recently defined by Facebook — manifestly believe that it’s important to get the state’s imprimatur on their relationships.  (This makes sense, since most of them are Left-leaning statists, who worship at the Big Government shrine.)  Civil unions joining together various sexual identity configurations (opposite sex, same sex, etc.) would give every American equal access to the benefits and burdens (economic, legal, and social) of a state-sanctioned relationship.  What civil unions would not do is force a direct confrontation between church and state.

The recent Obamacare abortion kerfuffle should warn people that a Progressive government won’t have second thoughts about forcing such a confrontation.  In 2008, when California had its Prop. 8 gay marriage referendum, I first raised my concern that gay marriage would result in a head-on collision between church and state.  A Progressive scoffed at this, telling me that, even though abortions are legal, the government has never gone toe-to-toe with the Catholic Church.  He was taken aback, and had no response, when I pointed out that the Catholic Church doesn’t provide, or withhold, abortions; it simply speaks against them doctrinally.  The Church does, however, marry people, and that leaves open the possibility that a gay couple will sue the church for refusing to perform a marriage service.

Mine was a good argument then, and it’s a better argument now.  With Obamacare, our Progressive-run federal government is forcing religious institutions and organizations be actively complicit in abortion by mandating that they fund abortifacients (and birth control) through “health” insurance.  (It’s “health” insurance, of course, only if the very act of becoming pregnant is a disease — which is funny when you think about it, because feminists in the 1960s and 1970s were outraged at a male patriarchy that treated pregnant women as if they were fragile and sick.)

I welcome your comments regarding this post.

UPDATE:  A lawyer I know commented that the Commerce Clause gives the federal government the power to legislate any type of commerce related activities.  (Sounds like a familiar argument, right?)  My response was a simple one:  The Commerce Clause represents a power that the People granted to the federal government.  The First Amendment represents an right inherent in each individual that the federal government (in theory) may not touch.  It seems to me that, especially when a law is narrowly drawn, the First Amendment, which states the People’s inherent rights, must trump the Commerce Clause, which merely reflects a power the People granted the government under contract.


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  • 11B40

    After 13 years of Catholic education, I switched over to studying Psychology in public institutions. This was back in the early ’70s, so I was around and about when the American Psychology (or was it Psychiatric ???) Association, in its long tradition of scientific endeavors, consensually voted homosexuality out of its diagnostic manual.  I still think that that was where and when the adults lost the game.
    You see for me the issue is the homosex and once it was decided that that was neither a dysfunction nor an issue, however politely, to be addressed, (and this held up even during the worst days/weeks/months/years of the HIV/AIDS epidemic in which those of those habits were so profoundly involved), I could not see how one could argue successfully against what is referred to in Group Dynamics as a “determined minority”.  It was just a matter of time before all the slices would come off the cultural salami.  And so, the homosexuals and their fellow travelers began their Long March through our previous Institutions.
    The manipulation of “compassion” is rife in our land and too much of our world. It is a primary tactic in the advancement of the Progressive/Statist agenda.  Back in my aforementioned Catholic school days, I was taught that all emotions needed adult supervision. Even compassion, wanting to help others, can certainly become a vice if other responsibilities are neglected. As in the old legal saw about arguing the facts or the law, Progressives move right past the behavioral and pound out ersatz demands for compassionate treatment of their minions. 

  • Charles Martel

    Book, you do raise an interesting question, namely, how will the state force Muslims to accede to gay “marriage” and gender-bending diktats like allowing self-identified girls who possess male genitals to access girls’ bathrooms? If the left is clever—and it is in many cases—it will direct its venom solely at Christianity, which exists as well all know to destroy the orgasm. For present purposes, the left sees Muslims as dumb twits who can be harnessed for their hatred of Jews and the West. Later, the conceit has it, Mohammedans’ secular intellectual superiors will rein them in.

  • http://ymarsakar.wordpress.com Ymarsakar

    Without freedom of conscience, what are people other than those obedient to the will of Evil?

  • http://www.amazon.com/Occupy-Innsmouth-ebook/dp/B009WWJ44A/ref=sr_1_1?ie=UTF8&qid=1361504109&amp raymondjelli

    I am so glad you did this post. You outlined the legal issues and the true state of affairs where people do what they do peacefully but simply do not endorse a lifestyle. This frightens me. Allow I am not in a business where I see myself in the headlights immediately I could see how I could end up in jail if I was.
    Simply put. I won’t pay the fine over jail. Gay rights may look at it like we’re fools we’ll pay the fine serve as an example and learn our lesson but it is not that way at all. The whole idea is that marriage is holy and holiness is determined by the Creator of the Universe and not man and man’s governments. Therefore I couldn’t pay the fine. It is not money the government can take from me. They can’t determine what is a holy marriage and they cannot by fiat determine my beliefs. I would have done nothing wrong so I will not be party to my own punishment. They can jail me. I wouldn’t give myself up. They would have to take man and I believe they will.

  • Wolf Howling

    The left’s penultimate goal is to establish government as the sole arbiter of morality and thus, the sole source of laws.  Thus the left has been trying to push religion from the public square since the inception of their movement in the French Revolution.  In the West, they have used sex as their primary tool to accomplish this end since at least the days when Margaret Sanger began her crusade for consequence free sex, openly declaring herself “an enemy of the Catholic Church.”    
    If fair treatment of gays was the goal of the left, than civil unions (which I also support) would make perfect sense.  Several states offered up civil unions as an alternative a decade ago, only to have it rejected by those pushing “gay rights” as unacceptable.  The “gay rights” movement is not only about “civil rights” for homosexuals, it is at least if not more about a war on religion.  
    Book, you could have easily expanded your list of using the state’s police power to enforce “gay rights” over religion to include examples of treating any criticism of homosexuality based on religious doctrine as “hate speech” justifying all manner of punishments, including firing.  On a related note are programs designed to remove parental control over children in regards to abortions or contraception, and programs designed to normalize homosexuality through public school education.  
    It is beyond question that, in any contest between a Constitutional provision and legislation, the Constitution wins.  And I agree, Book, with your list of reasons why the First Amendment should protect the religious against this assault using the vehicle of “gay rights.”  Let me add one other reason to the list, one which I think is dispositive. 
    The seminal document relied upon by the Supreme Court – and the left – in interpreting the provisions on religion found in the First Amendment has been Thomas Jefferson’s letter to the Danbury Baptists.  In that letter, Jefferson famously wrote that the First Amendment established a “wall of separation between Church and State.”  But Jefferson also wrote in that letter that man had “no natural right in opposition to his societal duties.”  In other words, the police power of the state would not be used to force Christians or Jews to act against their faith, as it was then commonly understood.  Thus our First Amendment gives first priority to well established religious beliefs should there be a conflict with “societal duties” that the state would otherwise enforce with its police powers.     

  • Ron19

    To paraphrase Joseph Stalin,

    How many SWAT teams do the Declaration of Independence, the Constitution, and the Bill of Rights have to defend themselves from the federal, state, and local governments?

  • Charles Martel

    Once again this is where Islam will be manipulated as a battering ram against First Amendment guarantees of free religious practice. The left will be complicit in pushing the establishment of sharia law, overtly as a manifestation of “diversity” and “tolerance” (as well as a sneery pomo disregard for the obvious inequalities among cultures), and covertly as a way to subvert the First Amendment by inviting a governmental response to Islam’s excesses.
    Did Jefferson or any of the founders foresee the emergence of a sizable Muslim minority in the U.S., fueled by hatred of Judeo-Christian norms? How do you deal with a religion that embraces violence, misogyny, hatred for homosexuals, and anti-Semitism at its core?
    For the left, the beauty of us all waking up to the dangers of Islam as they eventually manifest themselves will be that it can extend the need to rein it in to other religions in the name of governmental even-handedness. Alinsky would kvell at the cleverness of it.

  • Ron19

    U.S. judge orders Kentucky to recognize same-sex marriages

    (Reuters) – A U.S. federal judge on Thursday ordered Kentucky to recognize the legal same-sex marriages of residents who wed outside the state, the office of the state attorney general said.
    The decision is the latest in a string of rulings that expand gay rights following a U.S. Supreme Court decision last year that legally married same-sex couples nationwide are eligible for federal benefits, striking down a key part of the 1996 federal Defense of Marriage Act.
    U.S. District Judge John G. Heyburn II’s decision makes official a February 12 ruling where he said forbidding recognition of the marriages violated the constitutional rights of same-sex couples to equal protection under the law.
    Four Kentucky same-sex couples married out of state had challenged a state law that declared such marriages void and the attendant rights unenforceable. The couples, who were legally wed in Iowa, California, Connecticut and Canada, did not challenge a state constitutional ban on same-sex marriage.
    Kentucky had argued its policies were rationally related to a legitimate government interest in preserving traditional marriage.
    In all, 17 states plus the District of Columbia recognize gay marriage, including eight states where it became legal in 2013.
    (Reporting by Jon Herskovitz; Editing by Scott Malone and Mohammad Zargham)

    Comments (1)

    3bladerunner wrote:
    And the dominoes keep falling. This is progress America. Hallelujah!

  • Michael Adams

    i understand, and the Constitution actually says it, that our rights are not limited to those listed in the Bill of Rights. I’m fine with that.  I suppose that if you believed that God gave us all a Right to Sodomy, we ought to recognized that Right. However, while the Constitution recognizes that there exist nonenumerated rights, it does not explicitly protect the Right of Sodomy. So  how, then, do people get to the point of saying that laws against homosexual “marriage” are unconstitutional? Such laws might be unnatural, or illogical or just bad for business, but unconstitutional? There might be a natural right of access to the ani of other men, although my shotgun and my thirty eight might well dispute that right, in ‘a certain limited case’.  But,  is there a right to rewrite marriage laws?  Doe anyone have a right to specify the details of a cake and that the baker must bake that cake, and would you really eat a cake produced under such circumstances?  Would you not question the source of that ammonia smell, that saline taste? Do  I have a right to demand pork sausage in a halal butcher’s shop?   Can I insist on a right to buy alcohol in a Mormon-owned grocery store? This is craziness, and my only real question is, just how long will people put up with this utter and complete insanity?

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  • http://www.marchhareshouse.blogspot.com March Hare

    I have a several questions that I would like answered from a legal perspective:
    1.)  In my shop I have a sign that clearly states “I reserve the right to refuse service to anyone.”  A couple comes in, asks me to bake them a cake.  I simply refuse.  I do not give a reason, just point to the sign.  Can I still be sued for discrimination?
    2.)  Many years ago, when cohabitating was first becoming popular, an elderly woman refused to rent to a unmarried heterosexual couple.  Her reason was the unmarried couple were committing adultery and she morally could not condone nor encourage their behavior.  The young couple sued and the elderly woman lost, even though her defense established that she was, in fact, a regular church-goer and her church did condemn adultery.  Is this case any different than refusing service to a gay couple because you disapprove of their lifestyle?  (In my humble opinion, this ruling may be the grandfather of the current suits by the gay community.)
    3.)  There seems to be a conflict between private property ownership and the common good.  If I own a house, I don’t have to live in it.  I don’t have to rent it.  But, if I do decide to rent it, then I am limited as to what restrictions I can place on the renter.  These restrictions are decided, in large part, by “Society.”  Thus, I can ask for a credit check and prohibit pets (although if I’m renting to a senior citizen, I have to allow them under certain conditions), but I can’t ask for a marriage license or prohibit children.  Can conflicts overthe rights of the property owner and the needs of “Society” be resolved?  How?  I would think by law; however, if there are more renters in an area than property owners, the renters can vote in laws, or lawmakers, who tilt the scales to favor renters.  See, Berkeley and San Francisco.

  • Matt_SE

    This ends in either capitulation or civil disobedience.

  • http://libertywolf.wordpress.com/ libertywolf

    I agree with you 100% Bookworm on civil unions. This would leave people and religious institutions to their own devices regarding “marriage” and avoid a hell of a lot of these hassles.  I am about the same age as you I think, more or less, and I seem to remember that local city halls performed marriage ceremonies that were more like “civil unions” and that priests/rabbis/pastors etc. performed “marriages” back when we were younger?  Or am I imagining that?  It seems that this was the solution previously.  
    You may remember me from way back and my comments on the Chelsea Manning mess (aggh) – and I am obviously not in any way anti-LGBT.  I am not alone in that group in my wanting civil unions for gay and lesbian people instead of “marriage” though I am certainly in the minority.  Some lesbian and gay folks I know just have never heard of this solution since they, like most people, watch the media that feeds them this drama about marriage vs. nothing at all.  It is obviously not just the media, but the mainstream lesbian and gay leaders who have created this whole paradigm as well.  I know some lesbian and gay people who will not vote for any candidate who does not support gay marriage, and while I see that this is in their self-interest, it is also myopic since there are plenty of other issues in the world that count.  That’s one reason I will be glad when this is all over and done with and we have gay marriage and let’s just get on with life.   Like, I am sick of hearing about it.  BUT, there is that huge issue now of some lesbian and gay people making trouble and trying to make certain anti-gay people or religious institutions marry them, or just bake wedding cakes for them.  This is a problem.  I am not gay, but I would never want to do business with someone who doesn’t want my business, not for something important like a wedding.  I would just find someone else, and there would be and ARE other people since that is how the market works.  Others step forward to provide a service and they get the business.    I don’t see why these folks just don’t do that, but they want to force acceptance, and in doing that, they are only asking for more trouble. I say let them be and find that photographer who will do a good job and not dislike it the whole time.  Most lesbian and gay people go for that as most people will go  toward the path of least resistance, but there are these others on a mission.  I do not support that mission.   I do think you are right about the protections offered by the First Amendment to people’s religious beliefs and inclinations.  Of course, we do apply some common sense, or restraint in that there are people who do not wish to give their children medical care when they need it in order to stay alive, and those people may have religious beliefs about this, but they do get arrested for murder now.  So, there are exceptional situations like those…  I do think that the waters may be tested with Islam and the very alien customs and ideas that are a part of it.  The US government did manage to stop plural marriage, polygamy, in Utah — when the Mormons had that enshrined as part of their faith, and so there are, again, times and areas where people do not get to practice their religious beliefs if those beliefs are considered harmful, or frankly- just too damn weird.    But there was a fight… it was epic though we forget now.    There is something barbaric about plural marriage, both when the Mormons were doing it, and with Islam.  There is something barbaric about many Islamic customs regarding women and their treatment, certain ideas about slavery and again, marriage.  (yes, not all Muslims adhere to these, but I am assuming we all know that) For example…   Extreme veiling of women looks to our eyes to be barbaric, if we are honest (and I think many on the left are not, but they are horrified by it on sight)  and it is very alien to us.   We are in for some trouble ahead with these Islamic customs, as they present an odd and unique challenge, as you seem to be indicating with your chart.  I am more worried about that then gay marriage, which is an interesting test of religion and it’s sanctity under the constitution and it’s power to make social mores and keep them alive.   This presents an interesting conundrum, the Islam question… what can be done to prevent their alien and anti-woman, anti-gay (REALLY anti-gay) and anti-Jewish ideas from being practiced in this country if the US government cannot interfere with religious practice?   Maybe other laws will make this easy since in this country, honor killings are not (or should not) be tolerated and there really are laws against it, and beating or raping your wife is against the law.    I share other commenters’ frustration with the left and their tolerance or white washing of Islamic misogyny and anti-gay attitudes, and frankly, that is a HUGE part of what drove me from the left.  That’s a longer discussion… they hate the USA period and the West but it is a devil’s deal.  I mean, being tolerant of abhorrent practices that appear to go against core leftist values — but wanting to tolerate them because they are considered the values of quaint brown people who have experienced colonialism.  Of course, that is just stupid.  Anyway… we are living in interesting times.  BTW – I was the only person on my FB that I saw who was NOT impressed by the new gender business.  Whatever.  I am a man and I will leave it as that – “male”.  Nothing fancy and no wanting to make myself marked as anything but ordinary.  That’s another discussion… 

    • http://libertywolf.wordpress.com/ libertywolf

      Don’t know why the above comment came out as one long paragraph, so sorry that it is kind of difficult to read because of that.   I’ll have to be more careful!

      BTW – I am back in the Bay Area, wish me luck as I navigate the waters of extreme leftdom from what is essentially a closet.  I mean, people who think as we do here, more or less have to keep our mouths shut.  Any way… 

      • http://bookwormroom.com Bookworm

        libertywolf:  You can send me an email with the paragraphs broken down correctly, and I’ll substitute it for the one that WordPress decided to format on your behalf.

        Here in Marin, the liberals are realizing that their policies might just affect them negatively.  The big kerfuffle is court-mandated dense housing along the 101 corridor.  My open-minded friends are turning into NIMBYs before my eyes.  They’re squawking about illegal payoffs, and I’m reminding them (politely, of course), that a single court determined what their community should look like.

        • http://libertywolf.wordpress.com/ libertywolf

          Did send an email, I think I sent it to the right place… in any case Bookworm thank you for your kind offer. It’s been awhile since these comments were posted.  I will have to be more careful next time. 

          That’s funny about the new NIMBYs in Marin… when something becomes more personal, people often change their tune.  It is human nature.  I just wish people would understand these more bedrock principles of conservative/classic liberalism before that happens!   Or, before they feel personally effected.  

      • http://ymarsakar.wordpress.com Ymarsakar

        Probably the preview if you used it.

  • Charles Martel

    Book, like you I’ve been watching the same local reaction to state-mandated housing densities in Marin. I remember a few weeks ago you observing that while most Marinites full-throatedly support such ghastly concepts as abortion, same-sex marriage, and the Democratic Party, they turn Tea Partyer in the wink of an eye when their home turf comes under bureaucratic attack.
    The problem here for the state and local bureaucrats, who are as arrogant as their federal counterparts, is that the people lining up against them include some pretty prestigious and savvy folks who live just as high up the food chain. I love it when the left eats its own, and when the contest isn’t lions against Christians, but lions against lions.

  • http://ymarsakar.wordpress.com Ymarsakar

    The Left will never give up. They will determine when people are born, if they are born, when they will die, the manner in which they die, and how much you are allowed to pay the Left for being allowed to live.
    The Left will never give up. So long as there is life, there is hope.

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  • doc363

    Your logical is highly flawed. This would be a more accurate description of what will happen in this country in short order, despite the abundance of bigotry flowing from various sources to include religion.

    Are you ready?
    The first amendment cannot trump human rights.
    Sexual orientation will eventually be amended to the Civil Rights act. This is how change works. Over time. The ball has already started rolling.

    • http://ymarsakar.wordpress.com Ymarsakar

      How a bunch of fascists have human rights is a higher priority question.