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An End

September 30th, 2011 4 comments

My final column for 365gay is below. It’s an end, but not the end…I’ll continue blogging here, and watch this site for news about an arrangement with another site. Yet I’ll miss 365: It was a great source for news, and I developed a great working relationship with editor Jay Vanasco.

“One Last Salvo Against the Misuse of Religion:

My last column is kind of an angry one.

Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.

As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.

On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.

Beyond that kind of practical accommodation, though, allowing this kind of  refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:

State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.

But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.

Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.

And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?

We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.

I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.

George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to)  families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.

Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti  by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.

For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.

I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.

Reliably Controversial: Religion and Equality Clashes

July 22nd, 2010 No comments

Today’s column over at 365gay.com has elicited a mountain of response. No surprise there — it’s about how far to accommodate religion in anti-discrimination laws (including the marriage equality laws and public accommodation statutes). People are never shy about expressing opinions; the tougher thing is to maintain civility.

Back to the Burka

February 6th, 2010 2 comments

In an earlier post, I criticized the French government for its plan to ban the public wearing of the burka. It won’t liberate women, it will drive the issue underground, it sacrifices religious freedom to nothing more than public sensibility, and so on.

But what about the government’s recent decision to deny citizenship to a Muslim man whose wife is veiled? Is that equally indefensible? I don’t think so. The guy’s comments about his power over his wife amounted to an almost cartoonishly chauvinistic litany. According to the official with responsibility for the decision, the less-than-enlightened hubby said: “My wife will never be able to go out without the full veil; I don’t believe in gender equality; women have inferior status; I will not respect the principles of the secular society.”

If that’s really what he said, the government made the right choice. This is quite a different situation from the one presented by banning the burka in public. Here, the government has to decide whether to accept, as a French citizen, someone who openly rejects gender equality, one of the principal pillars of modern, secular society (at least rhetorically, anyway). The burka that his wife wears is but one tangible expression of his repressive behavior, and the government should no more approve his application than one filed by a domestic abuser. To gain membership in a secular democracy, there are certain principles by which one agrees to abide.

So what’s different about the “no burkas in public” rule? It’s all a matter of degree, of course, but I think the cases are quite different. Although the burka is certainly a marker of women’s inequality under religious law, it’s more than that; for some women, at least, it might be a deeply felt expression of their own religious belief, uncoerced at least in any obvious way by their husbands. A society should be open enough to accommodate the kind of conversation that the burka invites, even if it makes many (including me) uncomfortable. But a potential citizen who openly sneers at the very foundations of gender equality, in 2010, should be rejected — both on the merits and as a symbol of France’s willingness to take a stand in favor of women, and against those who would oppress them.

Emboldened in Hawaii

January 19th, 2010 No comments

Are civil unions the compromise they’re touted as? Not according to this story from Hawaii, where religious anti-equality opponents repeatedly discussed the sanctity of marriage in opposing — a Hawaii civil unions bill! The rhetoric was almost entirely religious, even though the bill has nothing to do with religion, even nominally. Counter-protesters also invoked religion in arguing for the bill. What’s left to say at this point. Maybe these three points:

  • For some, religion is too powerful to allow even civil equality for same-sex couples. They don’t want to look at the lives of their gay neighbors.
  • These counter-demonstrations show the peril in relying on religious arguments in civil discourse. The question becomes: Whose religion?
  • I can’t help thinking that recent legislative victories from the anti-equality forces in New Jersey and New York have emboldened the other side.

Expect this fight to go on for awhile. And don’t expect the Supreme Court to put a quick end to it.

“My Head is Spinning”: NJ Senate Committee Passes Marriage Equality Bill

December 7th, 2009 No comments

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This just in: By a 7-6 vote, the New Jersey Senate Judiciary Committee voted out the marriage equality bill, with what appear to be appropriate protections for religious organizations whose beliefs teach against same-sex unions. (I’m trying to get a copy of the bill so that I can independently analyze its terms.) Its fate in the full Senate (and beyond) may be decided on Thursday, and is unclear.

As I wrote a few hours ago, some of the testimony focused on religion, and its appropriate (or  not, in my view) place in this debate. Read the linked article at the start of this post, and you’ll see that much of the opposition revolved around two points: religion and the right of “the people” to decide the issue.

As I’ve written before, this notion that we should suspend representative democracy to allow visceral votes on issues of basic equality is as perverse as it is popular. If you can find the testimony, listen to the exchange between a Vermont Republican legislator who came down to testify and a clearly overmatched NJ Senator, who pressed her unsuccessfully whether the question should be put to the people. “The people elect us to make hard choices,” was her unassailable bottom line.

But as to religion, consider this astonishing statement by Josh Pruzanzsky, Executive Director of the Agudath of Israel of New Jersey. Same-sex marriage “would endanger religious freedom [and] inhibit free speech….”

Whose religious freedom? Not those of more liberal religious groups, whose freedoms are infringed if they’re not permitted to solemnize same-sex unions. The connection between the legislative bullying of the “big” religions and the popular vote that reflects the beliefs of those same groups is clear, and troubling.

Also troubling is the just-below-the-surface equation of gay couples with sex, and the related anger over the challenge to gender rules that we represent. Consider this “comment” from one of the story’s readers, which reflects a primal mash-up of all of these fears:

top / muncher = husband ??????????????????
bottom / munchee = wife ????????????????????????

My head is spinning- does anyone remember Sodom and Gomorrah??

Whatever the full legislature decides, there’s a long way to go.

Observations on the Marriage Equality Hearing Underway in New Jersey

December 7th, 2009 No comments

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Here’s the scene from New Jersey today, where supporters and opponents of the marriage equality bill gathered in advance of the Senate Judiciary committee meeting. Write your own caption.

If I had more time, I would have live-blogged this carnival from start to finish. (Here‘s the link to the hearing now going on.)

Since I’m listening right now, here’s a live bloggette:  There’s an interesting colloquy going on between a spokesman for the Catholic Church and the legislators. The Church guy (one Mr. Brennigan, it seems) appears to be in support of the current civil union law, but won’t be boxed in to saying that directly. He’s being pushed to ask whether it’s the label that matters, or substantive rights and privileges: Should same-sex couples get all of the same rights and privileges as married couples, save the title?

Yes, he says: You can create a parallel structure with all of the same rights and benefits. But you can’t call a same-sex union marriage. He’s almost saying — no, he is saying — that the legislature lacks the power to grant the status of marriage to gay couples. But this is a natural law argument, to which my response is always: “Who says?” One needs a properly public argument.

Mr. Brennigan is now acknowledging that, yes, the Church did oppose the civil union law. So, he says, this is about mitigating the damage.

Now one Senator is asking what the Catholic Church would have to say to a reform Jew who supports marriage equality, and how natural law fits into this disagreement. Brennigan is properly respectful, but the question gets at something vital: By choosing any particular religion’s view over another’s, the law ends up disrespecting religion more generally. The Senator follows up with exactly the right observation: Based on your view, we end up disenfranchising another religion.

True. That’s why arguments must be independent of religion. I’ll be back with a summary and a preview of Thursday’s vote later.


Boiled in Oil

November 29th, 2009 No comments

A few years ago, Martina Navratilova was asked about how her openness about being a lesbian had affected her tennis career. In characteristically honest and amusing fashion, she had this assessment (and here I paraphrase): Well, it wasn’t great. It cost me some fans, I took some heat for it, and I lost almost all of my endorsements. But it could have been worse. In the Middle Ages, I would have been boiled in oil.

A great line from a terrific and warm champion. (I had the pleasure of meeting her a few years ago at yet another event where she was being honored, and she was both humble and funny in accepting.) But, with all respect: Worse things are happening to gays today.

Jamaica’s horrendous treatment of gays — by both officials and the public — has been well-documented, and is (again) sometimes justified by religion. In addition to the legion of under-noticed stories on the brutal murders and beatings of gay men goings on there, there is this “gem” from Wayne Besen at Huff Post, which chillingly attests to the extent of the homophobia:

[T]he Jamaica Cancer Society has raised concerns that the fear of being labeled gay is causing some Jamaican men to avoid prostate examinations, causing one of the highest prostate cancer rates in the world.

This also means that doctors are complicit in some way, which is worse – but not surprising. Both straight and gay men who undergo a prostate exam in the U.S. often hear snarky comments about the exam from their docs, an artifact of the fear of gay sex.

In Iraq, an unintended consequence of our “liberation” the people has been the coordinated — and militia-supported — murder of many gay men. Things were better for gays under Saddam Hussein. Again, the fear of gay sex is the driver: The linked story relates stories of gay men having their anuses glued shut, and then force-fed laxatives; a painful death ensues.

These heartbreaking stories find expression in the U.S. as well, where a collision of religious belief and homophobia lead to actions that are equally repugnant, yet little noticed.

The creepy, secretive  cabal known as “The Family” is supporting the Ugandan government’s push to make homosexuality punishable by death. This story is a good primer on this corrupt, politically powerful, organization, which uses religious belief chiefly to gain tax advantages and to support the opulent lifestyles of its members. Jeff Sharlot’s exhaustive account of the group, The Family, would be expected to drive these nuts out of business — but this is a nation where torture is redefined and no one who authorized blatantly illegal practices gets prosecuted for it, so I’m not optimistic.

You’ll notice that the stories, and the actions of these anti-gay groups, focus on gay men, not lesbians. While there’s plenty of anti-lesbian sentiment to go around (and well-documented economic costs to being lesbian), sex between males remains particularly transgressive. A few years ago, a colleague introduced me to a list serve for Constitutional Law professors (after about two days of endless, theoretical postings, I got out of there), and I was astonished to see a comment from one anti-gay law professor joking that he, himself, didn’t understand male sex (the comment was much worse than that; I’m sanitizing for your protection).  And this is a supposedly respectable law professor.

Of course, Obama would never make such a comment. But he would — and has — ignored the 720 murders of gays in Iraq, despite clear and persuasive reporting on the topic. As far as I can tell, he’s said nothing about Jamaica, either (and has not responded to this suggestion, either).

I’m not naive enough to think that the Administration can get involved in every controversy, or that it should put issues of concern to the gay community ahead of other diplomatic goals. But we’re not talking about small stuff here. People are being killed, with something at least close to official approval, and…silence. With no other group would this be considered business as usual.

There’s something else. It’s hard to say much about what’s going on in other countries when your own domestic record is less than exemplary. Here’s where all of this ties back to marriage equality, if only in theoretical political terms. By not committing himself to that goal, Obama is stating, in effect, that he doesn’t favor full citizenship for gay and lesbians. So even though Obama is leagues away from dangerous right-wing nuts like the members of “The Family,” his credibility on gay issues is compromised. Perhaps that explains his otherwise puzzling silence.