LA marriage conscience bill now really needed
State Rep. Mike Johnson, if reelected, correctly plans to reintroduce a version of his Marriage and Conscience bill next year. Not only should he do so, but also it needs expansion.
This past session of the Louisiana Legislature Johnson, who has no announced opposition for this fall’s elections, introduced a bill that would have prevented government operating under state or local law from withholding certain services provided to businesses and individuals because of their views on marriage. For example, if a baker refused to confect a cake celebrating a same sex marriage because of religious belief that views homosexual behavior as immoral, the local government could not pull that establishment’s occupational license.
That hasn’t happened yet, but such a scenario could be in the offing. Recently, just such a refusal occurred in Houma. While state law does not compel performance of that service, and thus does not give a government grounds to retaliate in this particular instance, the flux surrounding the current legal environment regarding sexual behavior potentially opens up such actions to liability in the future.
Now that the U.S. Supreme Court has created within the Constitution a prohibition on government from regulating activities of the basis of sexual behavior, much parsing of jurisprudence in this area remains. Certain changes are inevitable; for example, the same emotive argumentation that carried a majority for the Court that now prevents states from regulating matrimony between two people of the same sex will apply to marriages of three or more people without limits to combinations and between people who are closely biologically related.
But extensions into other areas may follow. Just as the Court has said that the right to choose sexual orientation in behavior cannot be regulated by government as far as marriage goes, because that choice now has the status of a fundamental right, future decisions also could apply that circumscribing of state and local government options to other areas such as commerce, employment, and accommodations.
In other words, it could rule that the ability to express oneself sexually is so fundamental that governments cannot allow, for example, a church congregation whose faith determines homosexual behavior as sinful not to hire, or to fire, or to discipline employees whose outward behavior conveyed a desire for sexual relations with someone of the same sex, on the basis of that behavior. Part of the government sanction to inhibit organization’s actions in this regard could be to withhold licenses needed for it to function.
Governments could counter this by bringing up the First Amendment question of free exercise of religion, but if their laws are silent on this account, they have no defense against this other claim. Worse, in Louisiana Shreveport and New Orleans already have local laws on the books that, combined with the newly discovered constitutional right of same sex marriage, can strengthen the claim that entities cannot discriminate on the basis of preferred sexual behavior.
So, a revised attempt like Johnson’s – which met defeat as a result of some legislators saying the whole issue was hypothetical prior to the Court ruling – now clearly is relevant. The law could spell out unambiguously that if the owner or landlord had religious objections (and using the standard of Yoder v. Wisconsin to ensure the conflicting belief comes from long-standing religious practice integrated into a way of life, and not just a “belief” of convenience that does not represent true religiosity) to providing a service that would facilitate in an obvious way the commission of a sin, as indicated by same sex marriage, that government could not sanction them for that refusal.
For example under such a law, two individuals of the same sex who wanted to rent a one-bedroom apartment and said they had been married could be turned down without repercussion by a practicing Catholic landlord. But if they did not tell this landlord that they were parties to a same sex marriage, then they could be treated no differently than any two people of the same sex living in a one-bedroom flat who made no claims they were married to each other and could not be discriminated against because no long-standing organized religion’s beliefs objects to two people believed unmarried living together.
Further, the law would moot both of the conflicting Shreveport and New Orleans ordinances, for religious freedoms are universal and do not depend on where you live. While this will cause minor inconvenience to a very small number of people, it would be absurd to argue that the right of members of that small minority to behave sexually how they wished and to enlist others into facilitating that should trump a basic freedom for all enshrined in the First Amendment with government punishing you as means to limit your freedom of exercise of religion.
Conflicts between rights established in the Constitution inevitably creates limits on some. In this instance, the proper balance favors religious exercise and Louisiana should confirm this in passing such a law.
Posted by Jeff Sadow at 10:05