What the Heck Is the First Amendment Defense Act, and Should We Be Worried?

How far does law preventing federal retaliation against opponents of same-sex marriage go?

Credit: Elvert Barnes / photo on flickr

When "religious freedom" gets invoked in the United States, it can be a mixed bag. It can be a term legitimately be used to describe the right of Americans to express their faith how they choose and associate accordingly, provided they don't violate the rights of others. Or it could be invoked inappropriately as a justification for government discrimination, as was the case of Kim Davis, the county clerk in Kentucky who tried to use her religion as a reason not to comply with the Supreme Court's Obergefell decision that made same-sex marriage recognition the law of the land.

During the Supreme Court's hearing for Obergefell, justices debated whether a decision to mandate federal marriage recognition could lead down the line to punishment or withholding of funds for religious schools who receive federal money if they continue to decline to recognize same-sex marriage. After all, religion used to be the justification for rules against interracial marriage, and Bob Jones University was ultimately told that it could not keep its tax-exempt status if it had rules against interracial marriage or dating. Tellingly, those arguing in favor of same-sex marriage recognition couldn't say for sure that this couldn't happen again for colleges that won't, for example, admit married gay couples.

When the Obergefell ruling upheld gay marriage recognition, the concern that religious colleges would not be able to maintain their objections became a significant concern for religious conservatives. Earlier in the year, Rep. Raul Labrador (R-Idaho) and Sen. Mike Lee (R-Utah) introduced the First Amendment Defense Act (FADA). The stated intent of the law was to prevent the federal government from punishing or engaging in discrimination against people in certain ways because they believe that marriage should be between a man and a woman only or that sex should be confined to marriage.

The list of areas the laws is intended to apply seems limited at first glance. It would prohibit the government from revoking tax exemptions or refusing to allow tax deductions for charitable donations by or to these groups or individuals. It would prohibit the federal government (only the federal government) from denying grants, contracts or loans, or employment to people because of their positions on same-sex marriage. It would also prohibit the government from denying benefits to people for holding such positions, and it would require the government to accept the accreditation or licensing of those who believe or act according to their positions.

While that seems like a limited list, there was also a final sentence saying the federal government may not "otherwise discriminate against such person." That's awfully vague and could mean any number of things, including federal employees using their religious beliefs to not do their jobs. What started off as a bill to keep the federal government from denying tax exemptions to religious schools ended up possibly creating a phalanx of federal Kim Davises. As such, Reason contributor and Cato Institute Fellow Walter Olson warned against FADA because of its vagueness in a piece for Newsweek:

So for openers, FADA doesn't try to distinguish rights from frills and privileges: So far as I can tell, someone who is denied an ambassadorship or an invitation to a White House dinner because of disliked political views is covered, just like someone fired from his or her job. And "his or her" isn't quite right either: The bill covers artificial legal persons both profit-making and nonprofit, while also defining "federal government" to include all three branches and every element thereof.

The sum of this would be to create an extremely broad new category of anti-discrimination law—retaliatory discrimination based on a certain set of beliefs or acts—which would offer protected group status to powerful institutions as well as individuals, and afford very valuable legal leverage: recipients of federal subsidies, for example, could challenge any cutoff as motivated at least "partially" by political animus.

Astoundingly, the protection would run in one direction only: It would cover those who favor traditional definitions of marriage, while leaving those who might see merit in same-sex marriage or cohabitation or non-marital sex perfectly exposed to being fired, audited or cut off from public funds in retaliatory ways.

The good news is that Sen. Lee absorbed this criticism and prepared changes to the legislation. His new draft (read here) eliminates the part that says "otherwise discriminate against such a person," making it more specifically about the federal government attempting to punish people or organizations for their marriage views by denying them federal contracts or tax exemptions. It no longer appears to give coverage to federal employees refusing to do their jobs by, for example, refusing to process tax forms from married gay couples. It's still a one-way street, though, as Olson warns. Guess the First Amendment right to support same-sex marriage recognition doesn't need defending?

The bad news, for Lee anyway, is that his updated version of FADA is not the one that shows up on Congress' website or when somebody searches for the legislation on Google. It's still the broader version of the law with the potential for abuse. I did check with Lee's office to make sure is the revised version is the one they want passed. It is.

This matters now because conservative organizations the American Principles Project, Heritage Action for America, and the Family Research Council are pushing FADA in front of Republican presidential candidates and asking them to pledge to sign it into law during their first 100 days. Six candidates—Ted Cruz, Marco Rubio, Ben Carson, Carly Fiorina, Rick Santorum, and Mike Huckabee—have signed the pledge. Jeb Bush, Rand Paul, and Donald Trump did not sign the pledge but have expressed public support for FADA.

But it's not clear which version of FADA we're talking about. The American Principles Project, which pushed for the pledge, links to the Heritage Foundation's analysis of the law, not to the law itself. So, when these conservative groups announced just recently who had signed the pledge, criticism went back to the earliest analysis of FADA, warning it would prohibit the federal government from disciplining federal employees who pulled Kim Davis-type refusals over same-sex marriage filings.

Furthermore, pushing the pledge for the American Principles Project is Maggie Gallagher of the National Organization for Marriage, the woman who, in the eyes of many in the gay community, is the face of national activism to prevent same-sex marriage recognition. Even if FADA does absolutely nothing that threatens federal recognition of same-sex couples, it's going to be tough trying to sell it to non-conservatives with her name attached. 

In recent related news: A Massachussetts court ruled a Catholic school couldn't refuse to hire a married gay man for a non-administrative, non-educational position, despite the church's position on same-sex marriage.

Comments

[Fist of Etiquette]

Maybe it will somehow do in certain applications of accommodation laws. Maybe it will keep the Lois Lerners of the world from inflicting bureaucracy on ideological enemies. Maybe it will give me free puppies at my doorstep.

[Suicidy]

Once we get a new DoJ in 2017, it should be a high priority to convict and imprison most of Obama's administration. I just wish it was easier to execute those traitors.

[Lee G]

This is completely wrong-headed. The First Amendment stands on its own and is all-encompassing. Creating law that specifically enforces First Amendment rights in specific situations would suggest that the First Amendment is not all-encompassing.

Down the rabbit hole we go.

[robc]

Congress shall make no law seems hard for them to understand. Both congress and the courts.

[Scarecrow & WoodChipper Repair]

But that absolutist position leaves no room for slander or libel laws!

[C. Anacreon]

If Timmy jumped off the Empire State Building I suppose you would too?

[Scarecrow & WoodChipper Repair]

Pshaw! Global warming will make it a low dive into the raised oceans.

[Rufus The Monocled Derp Slayer]

Exactly.

It's the first step in the wrong direction.

I reckon progs with a long-term view are delighted.

[ace_m82]

Nearly a null set, so I wouldn't be too worried.

[Erisian]

But that is precisely why I am concerned. The subset of "progs with long term views" are the people driving the agenda in the first place. The mass that is the "[n]early a null set" are just the minions carrying out the ideas (and social experiments) of those few.

[Not okay]

It obviously hasn't stood on its own.

[Mickey Rat]

The courts have been ruling that the 1st Amendment protections do not apply to "generally applicable" laws. The problem you fearing is already here.

[Lee G]

I expect the leftists on the court to suck on this, but it's a sad statement that Scalia does as well. Just more evidence that he believes in limited government only when it does not offend his moral sensibilities.

[Not okay]

Making laws that say the government cannot do X is hardly expanding government.

[Scarecrow & WoodChipper Repair]

Were you ever a kid? If your mom told you to not eat any cookies before dinner, did you not take that as opening up loopholes for defining "before dinner", "cookies", "dinner", "before", and so on?

It's the same here. By explicitly denying a certain specific small subset of actions, it implicitly opens up all non-specified actions.

[Not okay]

All of those non-specified actions were already constitutionally prohibited but SCOTUS doesn't follow them in certain circumstances.

[rudehost]

This was actually the argument against the bill of rights when the constitution was created.

Thought experiment: Using your rationale we would be better off had we not added a bill of rights. Do you really believe that to be true?

[robc]

The constitution already did that, in theory.

[Eman]

isnt that like the definition of being conservative?

[ant1sthenes]

One problem with the first is that there are no real penalties attached apart from having your actions undone. So there is room for congressional action in that regard.

[Scarecrow & WoodChipper Repair]

That was the original anti-Federalist position on why there should be NO bill of rights, and the redaction of the 9th Amendment is ... informative.

[Mickey Rat]

And as shown in the Hobby Lobby case, the government does not like to follow explicitly written protections of rights (either in the Constitution or statute) when it thinks it has a nifty idea. Having no explicit protections seems a thin hope to count on to protect rights.

[Notorious UGCC]

Members of Congress take oaths or affirmations to uphold the Constitution, just like the federal judges do.

At an absolute bare minimum, complying with these oaths and affirmations means making sure that the laws they pass aren't used to violate the Constitution.

And if Congress fears that the feds will use *the very laws Congress passes* to violate the First Amendment, they can't just stand back and say, "oh, its OK, the courts will protect religious freedom."

Because they courts have frequently *failed* to protect religious freedom.

So unless they want to perjure themselves, Congress has to step in.

And you don't think the courts act on a case by case basis? One day they decide a First Amendment case involving picketing funerals, the next day a case about campaign finance, etc. Every time applying the First Amendment to a specific situation where First Amendment rights are in danger.

[Notorious UGCC]

And don't forget the Firearm Owners Protection Act of 1986, where Congress made at least some limited effort to protect Second Amendment rights.

Should that law be repealed because it should have been left to the courts?

[Mickey Rat]

This is the problem with the theory of judicial activism that some of the writers here promote. It assumes that the judiciary will always act to defend rights while the executive and the legislature will always seek to limit them. The protection of rights is in danger from legislative, executive and judicial supremacy. It is the tension between the branches which helps to ensure our rights remain protected, not entrusting the job to one institution.

[Notorious UGCC]

I concur.

[Scarecrow & WoodChipper Repair]

The problem with separation of powers is that it assumes the branches will never collude to increase government power.

The only possible solution is citizen challenges for unconstitutional laws. It has to be easier to repeal laws than enact them, and to prevent government from having the last say.

The current situation is akin to letting the various Mafia families define crime, with the hope that they will fight each other. No government should be able to define its own limits.

[Eman]

laws should come with an expiration date, so people have to actively think something's a good idea for it to keep happening

[Nativist, Racist & Xenophobe]

What tension? The assumption there is that the various branches of government will be "jealous of their prerogatives". You tell me - are our various officials more jealous of the prerogatives of their branch, or more concerned with how their party fares in the next election?

[retiredfire]

Supreme Court justices also take a similar oath, yet they summarily rendered the Constitution to toilet paper when they mad their "ruling" in Obergfell.
Based everything on the odious 14th amendment, which was never intended to be used the way it has been, and eviscerated the last two entries in the Bill of Rights.

As for making nationwide law: No less than the first entry in the Constitution was cast aside.
Article 1, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

[Rockabilly]

Ministry of Truth says otherwise

[DevilDocNowCiv]

Got news, Lee - we've been walking downhill in the rabbit hole for a while. Certainly since Kennedy agreed with the then - secretly - gay - and - hoping - to - marry - his - gay - "fianc?" former Cali Supreme who wrote the decision that canceled the voter referendum that ruled out gay marriage. He wrote that Cali had to go gay, because the voters who ruled no gay marriage had to be motivated by hate.

Now, while this struck me as bizarre reasoning, it no new thing to find such in rarefied, Supreme Court (State or SCOTUS) legal rulings. But when Kennedy essentially copy-pasted the same ruling, the sparks of amazement certainly lit up the walls of the rabbit hole for me. Conservo Supremes could only ask simple clarifying questions about the new, SCOTUS passed Federal law; the article noted a couple.

One of these is that some State Supremes have said that a Catholic Church run business has to hire a gay person. I want to see the problem with this made clear to those who subscribe to the now ruling PC ideology this way; imagine this as forcing a mosque to hire a gay guy in a similar role. Many mosques have non-religious schools and services operating on mosque grounds.

[Free Market Socialist $park?]

Yo, fuck tax exempt status.

[Brett L]

How would you write a tax law that respect the First Amendment? Taxing causes something to be done less. Taxing religious institutions would be prior constraint.

[robc]

Single Land Tax.

Land value (not development) is taxed regardless of owner. One level of government would even have to pay other levels.

Wyoming would get a nice big check from Feds for Yellowstone every year.

[SugarFree]

Isn't land that cannot be developed gaining zero value per year?

[robc]

Cannot be?

Physically or legally? The former has no value, except as a reserve or whatever, which is still some value.

The latter is an entirely different problem.

[robc]

The point of a Georgist land tax is to extract rents, no value is gained from merely owning land, values should be from development.

It is anti-rent seeking, which I favor.

[Scarecrow & WoodChipper Repair]

The problem with a land value tax is it requires a subjective evaluation of land value. Any objective evaluation using sales records would be (a) intrusive, and (b) easily corrupted by paying cash under the table.

Any land tax should be based on area alone. That of course has the problem of the same tax for desert as for urban skyscraper lots. One solution is to allow property taxes only at the lowest political subdivision, counties or cities, and all higher political subdivisions have to beg for money from the lower ones. I like that idea, but it will never happen.

A different take on land value tax is to make values self-assessed, with the proviso that insurance can't pay out more than the self-assessed value, or that anyone can buy any parcel for double the self-assessed value. The first is as bureaucratic and corruptable as any land value tax, and the second is just obnoxious as hell.

Another possibility for self-assessed property values is to limit any judicial restitution to that self-assessed value. That eliminates the intrusive aspect, and the corruption disappears because why would anyone pay more restitution under the table when they could pay less by going through the courts? Blackmail comes to mind, but they can sleep in their own bed for all that I care.

[robc]

The subjectivity problem exists for any other tax. Anarchists dont need a subjectivity argument, so the argument fails in all cases.

We currently have property taxes most places which are way more subjective.

And dont get me started on subjectivity of the income tax.

[retiredfire]

Land is valued all the time.
It is, usually, whatever someone has paid for it, thus skyscraper lots being valued higher than desert land.
Cash transactions can't happen under the table because title exchange documentation must be filed and, as with sales taxes on cars in California, when they change hands, the value is based on the "fair market" (no more $500 cars).

[Free Market Socialist $park?]

I would stop using the tax laws to play favorites.

[Francisco d'Anconia]

Every man, woman and child living within the borders of the US pays an equal dollar amount?

[Scarecrow & WoodChipper Repair]

That would be interesting. Local, state, and federal government expenditures are around $7-8T a year; that's around $20K per year per person. Such taxation would sure force some expenditure cuts in a hurry.

[robc]

Eliminate the 16th and 17th amendment and require the Feds to bill each state its share of taxes in proportion to its population and watch the changes happen...fast.

[Scarecrow & WoodChipper Repair]

They already did change fast ... when they enacted the 16th and 17th amendments. That's the problem with letting government define its own limits.

[Francisco d'Anconia]

Such taxation would sure force some expenditure cuts in a hurry.

Think of the benefits.

Everyone has equal skin in the game.
No one is stealing from anyone else, so everyone feels equal pain.
Incentivises not having kids until you have the means to afford them.
Eliminates cronyism.
Inhibits the growth of government (can't raise taxes without hurting the poor).
Incentivises wealth creation as it isn't a percentage.

I believe that the government could easily be run and perform the duties of legitimate government for 1/4 of what it runs on today (quite easily). That'd be about $1T. DIvided by 310M that's about $3225/year/person.

[Juice]

That would be a direct tax and a capitation, which are unconstitutional.

[Francisco d'Anconia]

Unconstitutional? I'm not sure I follow.

You mean because it's not a tax on income IAW 16A?

[Bill Dalasio]

How would you write a tax law that respect the First Amendment?

There's an idea I've been toying with for a while now - a contract tax. Essentially, you'd be free to make whatever contract you wanted without paying the tax, but the contract wouldn't be enforceable in a court of law. It seems to me that this fits the NAP entirely in that payment is voluntary and is paid for services rendered.

[kbolino]

Is the tax levied at the time the document is drawn up, or at the time the court proceedings are begun?

If the former, then expect people to complain that the courts only care about the interests of "the rich". Also, how will the fee be determined? Any fee schedule seems subject to gaming, one way or another.

If the latter, then expect almost every dispute to be resolved in favor of the more monied party. No matter how neutral or fair the court proceedings might be, avoiding them altogether or settling quickly will always be the favored option of those who cannot afford to proceed.

[R C Dean]

How would you write a tax law that respect the First Amendment?

By not exempting religious organizations, which is a pretty clear "establishment" of religion in my book.

[Long Woodchippers]

I believe the logic of the exemption is not specifically that the untaxed institution is 'religious' but that it is doing charitable work and generally improving society, work that otherwise the government itself would have to do (and likely less well)

[retiredfire]

Then include the exemption that is granted to non-religious charities and remove any language that grants an exemption based on being a religious organization. As long as these religions comply with the same laws regarding qualification as a charity, there should be no problem.
Seem pretty straight-forward, to me.

[ThomasD]

Right because government must be paid rent for everything.

/sarc.

[robc]

The recent related news we were told would never happen.

After listening to the superforecasters podcast from econtalk I am holding pundits accountable for their claims.

[Lee G]

Perhaps if 90% of the damn country weren't receiving federal subsidies in some way, shape, or form, we wouldn't have so many of these discussions.

The Tenth Amendment gets shafted daily.

[robc]

This, so many times this.

[robc]

Like I normally say on education threads, 99.44% of educationcontroversies are solved by separation of school and state.

[Lee G]

Why do you hate the children?

[robc]

Have you met them?

[retiredfire]

Good comeback.

[Long Woodchippers]

Yesterday I got a campaign email from Dr. Matt Heinz, running for Congress it Arizona. It was generally complaining about the 'Hobby Lobby' decision, claiming that SCOTUS had allowed employers to deny their female employees access to birth control, and it just wasn't right for anyone to come between a woman and her doctor.

1. Not requiring a third party to buy a person something is not the same as denying that person access to the product, especially one that can be purchased for under $20/month.

2. If they, on principle, object to a third party in health care decision process, why then do they insist that a third party be involved in the health care financing process?

The are demanding the employer's money with no questions asked. If that's the way they want it, then just have the employer provided a paycheck and they can go buy whatever, themselves.

[Eman]

well what if that woman chose to spend it on recreational drugs or something and then still needed birth control? we couldnt just let her go without.

[american socialist]

"During the Supreme Court's hearing for Obergefell, justices debated whether a decision to mandate federal marriage recognition could lead down the line to punishment or withholding of funds for religious schools who receive federal money if they continue to decline to recognize same-sex marriage. After all, religion used to be the justification for rules against interracial marriage, and Bob Jones University was ultimately told that it could not keep its tax-exempt status if it had rules against interracial marriage or dating. Tellingly, those arguing in favor of same-sex marriage recognition couldn't say for sure that this couldn't happen again for colleges that won't, for example, admit married gay couples."

Good for them. If Christian madrassas want to engage in discrimination let them hold a bake sale or advertise on right-wing talk radio, where they'll play the victim against those of us who don't want money going to homophobes. Why should taxpayers pay for their bigotry? Can I start a religion that encourages women to have 3rd trimester abortions? You know, just to fuck with the fundies.

[Free Market Socialist $park?]

So you'd be in favor of getting rid of the Civil Rights Act?

[WTF]

He's in favor of using government force to compel people to do whatever he wants them to do.

[american socialist]

Where in the Civil RightsAct does it say anything about taxpayers having to pay for bigoted admissions policies at places run by bigots?

[Free Market Socialist $park?]

It's unfortunate that you're such a fucking dolt that you can't see how close you are to an actual meaningful position. You're too hung up on sticking your thumb in the eye of the stupid fundies. EVERYONE HAS THE SAME RIGHTS!

[american socialist]

Sorry, where again in the Civil Rights Act does it say that taxpayers have to pay for institutions that discriminate against gay people. You're the one that brought it up. MAYBE YOU SHOULD POST YOUR RESPONSE IN CAPS.

[Free Market Socialist $park?]

So you don't really believe in freedom. You just want the government to give you permission to hate the stupid fundies. I just wanted to make sure you clarified your position.

[american socialist]

I didn't ask the government for permission to hate fundamentalists. I just do. Why are libertarians so enamoured of them?

[ace_m82]

Because some of us are Fundamentalists. And no, I don't use force on anyone who doesn't aggress against me.

[american socialist]

Where in the Civil Rights Act does it say anything about taxpayers having to pay for religiously-based bigotry? Citation please.

[Free Market Socialist $park?]

I get it, you failed to see the point. You don't have to keep harping on it.

[Suicidy]

They are discriminating against a form of behavior. Not something existential, like skin color. Like the way I would discriminate against a subhuman Marxist, such as yourself.

[Lee G]

Can I start a religion that encourages women to have 3rd trimester abortions?

Yes. Your right to be an asshole is enshrined in the Constitution.

[Free Market Socialist $park?]

Protected by, not enshrined in. I know it's a minor quibble, but an important one IMO.

[robc]

Turn that into a universal statement and you will have advanced one step forward.

[Citizen X]

Can I start a religion that encourages women to have 3rd trimester abortions?

Go for it. I'm sure your mom wishes there already was one.

[retiredfire]

Most of us wish it would extend to as many trimesters as needed to...

[Mickey Rat]

...and that way leads to government control over conscience and thought by demanding the government dictate doctrine and philosophy. How fascist of you.

[american socialist]

No it doesn't. It simply says that taxpayers shouldn't have to foot the bill at institutions that exclude activities based on sexual orientation.

[Mickey Rat]

That IS doctrine and philosophy. The federal go ernment is prohibited from subsidizing ones they do approve and ones they do not due to the establishment clause. Either the sunsidies are open to all or they are available to none.

[american socialist]

The Establishment Clause prohibits the government from deciding which schools it provides subsidies to? Hahahaha... You are out of your mind. Go back to hillsdale and read Leviticus to your fellow students.

[kbolino]

I love the bullshit lines so-called "atheists" draw in the sand between "religion" and "not religion" as though some set of beliefs held sacrosanct can't possibly be a religion because it doesn't adhere to theology of some kind.

If it quacks like religious belief...

[Suicidy]

AmSoc has certainly turned his Marxism into a religion. One devoid of any form of thought or spirituality, or merit, or decency, or basic kindness, or value, or use, or fun, or much of anything useful. Just blind adherence and a willingness to murder real humans by the millions.

[Mickey Rat]

We are talking about religious schools that are often associated directly with a church and prohibiting their students from receiving federally backed student loans based on whether the school does faithfully apply their church's doctrine or adopts the doctrine the federal government approves of.

Your distinction between a school and church is invalid. No dictating doctrine or no student loan program. Your choice.

[Michael Price]

Yes it does. That's the whole point, you they can't pick and choose who to give favourites too based on their theology.

[Michael Price]

Yes it does. That's the whole point, you they can't pick and choose who to give favourites too based on their theology.

[Bobarian (Would Chip Her)]

So... more pedophiles in college?

[kbolino]

taxpayers shouldn't have to foot the bill at institutions

Sounds great, when do we start?

[Heroic Mulatto]

Can I start a religion that encourages women to have 3rd trimester abortions?

Carthage had you beat by 2,500 years. And they did it with more class.

[Citizen X]

You know who else had more class than american socialist?

[Rhywun]

Hitler?

[american socialist]

It wasn't robert conquest. He was a lowlife spy for European warmongers.

[retiredfire]

All capitalists?

[Suicidy]

The Gits?

[SIV]

After all, religion used to be the justification for rules against interracial marriage,

More like "a justification". President Harry Truman argued as such. Science used to be "the justification".

[retiredfire]

Was it, really "religious" justification, as in enshrined in some kind of scripture, or just individuals who claimed that God wanted the races separated, with no backing in any doctrinal writing?

[Suicidy]

A lot of blacks today want to be segregated. Look at the progtard activists, and all the black only organizations.

[Scarecrow & WoodChipper Repair]

Once you grab coercive government by the tail, it's awfully hard to let go.

[Notorious UGCC]

"Kim Davis, the county clerk in Kentucky who tried to use her religion as a reason not to comply with the Supreme Court's Obergefell decision that made same-sex marriage recognition the law of the land."

The state of Kentucky complied with court-ordered SSM. Even in Kim Davis's office.

Davis simply managed to keep her name off the marriage licenses and avoid invoking her own authority to grant these licenses.

Bottom line, gay couples were denied the pleasure of having a "homophobe's" name on their marriage licenses.

[Free Market Socialist $park?]

Thereby placing an undue burden on gay couples wanting to be granted a state sanctioned marriage.

[robc]

Does anyone have a right to a state sanctioned license? Think carefully.

[Free Market Socialist $park?]

According to our illustrious government, yes they do. Is it a natural right? No.

[robc]

The latter is all I care about.

[Free Market Socialist $park?]

It's all anyone should care about. Unfortunately, we don't always have that option. The government has set itself up as the arbiter of rights and people have let it.

[retiredfire]

No!

[Notorious UGCC]

You need to have a "homophobe's" name on your license, and if not you're suffering an "undue burden?"

[Free Market Socialist $park?]

Could someone else have signed the document which would have validated it? As I understand it, not until some changes were made.

What would you say if you went to get your driver's license renewed and the clerk refused? What if there was only one clerk?

[Notorious UGCC]

If I found out that a governor who supposedly supported my rights had a chance to fix the problem but failed to do so, I'd be mad at the governor.

[Notorious UGCC]

"What if there was only one clerk?"

Then it wouldn't be at all like Utah and North Carolina, where the relevant statute provides that there will be gay-affirming officials available in every county to process Adam and Steve's applications.

[Free Market Socialist $park?]

Wait, are you saying that Kentucky isn't Utah or North Carolina? Well holy shit, you win the geography bee for today.

[Notorious UGCC]

Yes, I'm saying that Kentucky's government was dumber than the governments of Utah and North Carolina.

Nothing stopped Kentucky from passing sensible laws - except their "pro-gay" government's intransigence.

[Bobarian (Would Chip Her)]

Nothing stopped Kentucky from passing sensible laws - except their "pro-gay" government's intransigence.

It was more that the Govenor would not approve a special assembly of the KY congress. Obergfell came after the congress had already convened, and since directly contradicted the KY constitution, there were (and still are) a lot of issues with KY laws that need to be unwound.

[Not okay]

the clerk refused to give me a class A drivers license.

[Long Woodchippers]

In Kentucky, there is only one clerk per county, as it is an elected position similar to a county business manger. I live in Pa, where there are three or four elected administrative positions at the court house (Clerk of Courts, Register of Wills, Prothonotary, etc) However, in Ky and Pa, a marriage license obtained in any county can be used to get married anywhere in the state.

[Long Woodchippers]

Actually, by placing an undue burden on all couples, as she stopped issuing licenses to straight couples as well, and one of the plaintiffs against her was a straight couple. The judge decided that it was too much of a burden for anyone to go 20 miles to the next county seat, because, what if everyone took her position? (although so far only she had)

[Sevo]

Correction:
She used the power of the government to promote her superstition until forced no to.
Quit lying, eddy.

[Not okay]

How so?

[Notorious UGCC]

Don't piss on my leg and tell me it's raining, she objected to personally participating in the licenses, and they found a way to accomodate her scruples while giving the licenses to the same-sex couples. She didn't object so long as it wasn't done in her name.

There was a brief flutter about how the laws wouldn't allow the licenses to issue without her cooperation, but that was resolved. And to the extent this issue arose, it arose because the "pro-gay" governor wouldn't call in the legislature to provide prompt legal fixes to what turned out to be a non-problem.

[Notorious UGCC]

Kentucky had plenty of warning that this might happen, and they could have followed the example of Utah and North Carolina - providing swift and easy ways for same-sex couples to bypass unduly-scrupulous officials and get their licenses.

So if this were simply about making sure gay people got their licenses, the matter could have been resolved without fuss and drama.

Which leads me to conclude that this isn't about facilitating gay marriage licenses, it's about purging wrong-thinking clerks and judges.

[mr simple]

Science H. Reason, paranoid much? It's always about a witch hunt with you people. This was about her not doing her job. This was about her denying people their rightful ability to contractually obligate themselves to each other in the eyes of the law, which confers a host of other rights and privileges. You cannot be discriminatory in this way in a government job. And complying with the law had nothing to do with her religious freedom or beliefs. She wasn't asked with consecrating the marriages in the eyes of her god. She was tasked with allowing them to have their contract recognized in the eyes of the law.

[robc]

"Rightful"

See above, no one has a right to a government license.

[mr simple]

They have a right to contract and getting a license is the only way to exercise that right. If you want to change that, good, I'll sign or vote to help you out, but until then the government can't pick and choose which consenting adults can exercise that right or the rights that come with the license.

[robc]

They didnt need a license to enter the contract. In fact, the license supercedes their contact, making parts of it, theoretically, null and void.

[mr simple]

They need the license to have their contract recognized by the government and other bodies. Yes, the government through their licensing scheme does limit the scope of contracts allowed, but I'm not saying its ideal, just that it's the only option available to people at this time and, as such, cannot be denied to people due to religious beliefs.

[Long Woodchippers]

I've been married for over 30 years and NO ONE has ever asked to see my marriage license. Everyone takes my word for it, including the IRS, and I doubt they'll ask to see one when I write my will.

[Notorious UGCC]

"This was about her denying people their rightful ability to contractually obligate themselves to each other in the eyes of the law"

Again, she didn't "deny" them, because they got their licenses. Through her deputies.

[mr simple]

She did deny them as that was not initially allowed. It's also a stupid workaround for her not doing her job for no other reason than bigotry. Not only did it not violate her religious beliefs but if discrimination of who gets what rights is a part of any of her personal beliefs, she does not get the luxury of following them when she performs her government job.

[Notorious UGCC]

So...there were several thousand years before the U.S. Supreme Court invented a right to gay marriage. During this time, marriage had a sex-binary definition. Then the U.S. Supreme Court decided to change these age-old laws to provide for gay marriage. Even in states like Kentucky where the voters had overwhelmingly approved the traditional definition and instructed their public officials to maintain that traditional definition and no other.

So after waiting several thousand years for their right to gay marriage, they had to wait a few more weeks in one county in Kentucky, and this constitutes an intolerable delay?

And the pro-gay governor saw the freight train coming and failed to call in the legislature to apply a couple quick fixes to make the transition even smoother?

The voters and taxpayers of Kentucky defined the "government job" of Kim Davis and every other state and local official to include the defense of true marriage. Unable to perform that job, Davis opted out of the marriage business, which after some unnecessary hassle lead to the gay marriage licenses to be issued by people in Davis' own office.

So they get gay marriage after several thousand years, they meet temporary resistance to the New Order in one county in one state for a few weeks, the problem is resolved...and you're still hyperventilating?

[retiredfire]

What would have happened, and still does, if a brother and sister ask for a marriage license?
Father and daughter? Mother and son?In some states, first cousins? Anyone under age? Someone openly using marriage to keep another person from being deported?
Oh, some restrictions on who can marry are OK, but for some less-than-sane reason; two people, who cannot produce what the institution of marriage was all about - offspring - now, have a "right", though not one enumerated in the Constitution, nor retained by the people, or the State, and ordered by a body that has no Constitutional authority to do so.
Yeah, that makes sense.

[SugarFree]

providing swift and easy ways for same-sex couples to bypass unduly-scrupulous officials and get their licenses.

Way to be a cunt.

[Notorious UGCC]

Don't get your tentacles in a twist, I see a total win/win.

Gay couples get their sacred right to get gay-married, with a license and everything, without having to purge the civil service and elected officials.

The unduly-scrupulous officials are assigned to other duties, while the gay licenses get issued by other officials.

Who loses in this scenario? Only the purgers.

[Win Bear]

The unduly-scrupulous officials are assigned to other duties, while the gay licenses get issued by other officials. Who loses in this scenario? Only the purgers.

We all lose, because it establishes the principle that government needs to accommodate religious beliefs even if they interfere with the job functions themselves. Imagine what the outrage from the religious community would be if some county clerk refused to issue marriage licenses to Catholics or Jews because he found those beliefs incompatible with his own religious beliefs.

Kim Davis's job is to issue marriage license according to the law. It's a simple enough job, and if she doesn't like doing it, she can do something else. But she doesn't get to pawn off part of her workload onto others because she disapproves of particular kinds of marriage.

[Win Bear]

Which leads me to conclude that this isn't about facilitating gay marriage licenses, it's about purging wrong-thinking clerks and judges.

It would be wrong for a judge or county clerk to condemn Catholicism or Lutheranism or Judaism in their official capacity. Likewise, it is wrong for a judge or county clerk to condemn homosexuality on religious grounds in their official capacity.

So, it's not about what Kim Davis "thinks" or what she believes or what she does in her private life; she has failed to uphold the First Amendment in her official capacity, and for that she should get removed from her job.

[Suicidy]

Right, because anyone who disagrees wit any aspect of homosexuality suffers from a clinical psychologic condition. That sounds like proggy talk.

[Eman]

i think "schadenfreude" was the word you were looking for

[Notorious UGCC]

"The sum of this would be to create an extremely broad new category of anti-discrimination law?retaliatory discrimination based on a certain set of beliefs or acts?which would offer protected group status to powerful institutions as well as individuals, and afford very valuable legal leverage"

Wait a minute, that sounds strangely familiar...

I seem to recall some other laws which meet this definition...some "gay rights" laws...

[Zunalter]

Well yea, it's fine when a group I am on board with has those extra rights...

[ThomasD]

Shackford either imagines a world where rights are never in direct conflict, or he simply wants to decide which rights get privileged over others and you just need to shut up and play along.

Um, no.

[robc]

Rights never conflict. If they do, one of your rights is misdefined.

[ThomasD]

Utter horse shit.

[ThomasD]

Sorry,

Utopian utter horse shit.

[some guy]

Then give us an example of conflicting rights so we can understand where you're coming from.

[Scarecrow & WoodChipper Repair]

The right to not be assaulted is always conflicted while walking down a crowded sidewalk.

[some guy]

If I bump you while walking down the sidewalk, I have infringed your rights, true. But the damages done are insignificant, so the just compensation will be insignificant as well. You are welcome to request that compensation if you want, but you won't because you have nothing to gain.

[ThomasD]

None of which proves that rights are not frequently in conflict, nor denies that the courts exist expressly for the purpose of resolving such conflicts via notions of equity and justice.

[ThomasD]

Getting into the game of which right is a "real" right, and which right is a "faux" right is exactly the rabbit hole Shackford wants to take you down, and it's dead wrong.

[Long Woodchippers]

Most of the time "rights" are in conflict is because the law has set up the situation. I mentioned Hobby Lobby. That is only a conflict because the government insists that 3rd parties pay for employee health care. No one has a "right" to other people's money. Once they recognize that, there is no longer a conflict.

[some guy]

There is no conflict here. I had no right to bump you. You had a right to not be bumped. No conflict.

Courts are for figuring out if someone's rights were violated, and what the compensation should be.

[ThomasD]

First the court would need to decide who bumped into who.

What if the collision was entirely mutual? Did you both violate each others' rights?

Why yes, yes you did.

Rights in conflict.

This is a simple example, but frankly if you can't imaging anything more complex then you've obviously had very little dealings with the legal system.

Happens all the time.

[ThomasD]

And usually courts strive to resolve the issue as you tried - by dealing with both parties fairly and equitably.

It is really only when the issue rises to someone seeking to impose their will upon everyone else that we get situations like Kim Davis. In that situation both could have been reasonably accommodated, but the desire to compel Davis to subordinate her rights was too strong.

[mr simple]

Her right not to do her job? I don't think such a thing exists.

[ThomasD]

Exactly what defines her job, and who decides?

You do know that her "job" is a constitutional office, don't you?

[ThomasD]

Never mind that you are merely question begging...

[mr simple]

Maybe you should look up question begging before you go throwing around that term. Her job is clearly defined in the Kentucky constitution and laws. It is the job of the county clerk to issue marriage licenses (KRS 402.080) and file and record all marriage certificates (KRS 402.220 and KRS 402.230). What does it being a constitutional office have to do with whether her job is defined?

[Francisco d'Anconia]

Kim Davis, when performing her job, is government. Government has no rights. They have limited powers granted them by the people.

If Kim Davis (the person) cannot in good conscience perform the duties required of Kim Davis (the government), then Kim Davis (the person) needs to step down.

There is no conflict of rights in this situation.

[ThomasD]

"Kim Davis, when performing her job, is government. Government has no rights."

What you are saying is that anyone elected to office surrenders all rights. At least "when performing [their] job."

Which only begs the question of exactly what is her job? And if she wasn't doing her job, as defined by the KY Constitution then the proper response is impeachment and removal from office.

Yet that did not happen. Wonder why???

[Francisco d'Anconia]

What you are saying is that anyone elected to office surrenders all rights. At least "when performing [their] job."

That is EXACTLY what I'm saying. You know what your government function is and what your duties entail when you voluntarily accept the position. If the people decide to alter those powers after your acceptance, you should be granted the opportunity to leave if you do not approve of the change. Other than that, government doesn't have the "right" to fuck-all.

[Suicidy]

Why are we expending energy on Davis' harmless activities when there are progtard controlled sanctuary cities breaking laws that cause innocent people to be murdered.

[some guy]

In that situation both could have been reasonably accommodated, but the desire to compel Davis to subordinate her rights was too strong.

Now I really see what the source of our disagreement is. You are thinking about civil rights. I am thinking about natural rights. Natural rights never conflict. Civil rights frequently conflict because they are arbitrary.

[robc]

I dont accept the premise. There is no right not to be jostled in a crowd.

There is a right to not be assaulted, but that requires mens rea or negligence.

[ThomasD]

... that requires mens rea or negligence

You really do not see that you are defeating your own argument with that caveat, do you?

[ThomasD]

You are simply engaging in that same game of re-defining of what is a 'real' right, and what is a 'faux' right.

[robc]

Faux rights were never rights to begin with.

[robc]

???

My argument is that when properly defined, rights dont conflict.

I am properly defining the right.

[robc]

The only thing youcan accuse me of is making a tautological argument.

To which I would respnd: "Duh."

[robc]

This is the same as me claiming that market failures dont exist.

[ThomasD]

"I am properly defining the right."

No you are not, you are seeking to redefine the circumstances to suit your desires.

Two people have the right to exist within a particular place and time. They both attempt to do so simultaneously, with no awareness of the others intent. Their rights come into immediate and direct conflict. There is no mens, there is no negligence, there was only the intent to express a right.

You want to get sidetracked on whether it meets some legal definition of a crime or tort (while conveniently ignoring how any such a system came to be in the first place.)

Rights frequently conflict.

[ThomasD]

Look, you do not even have to take my word for it.

Just consider the purpose, and ramifications of the sentence

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

(emphasis added)

The people who wrote that were not idiots, I don't think you are either, but they clearly understood something you do not.

[Marty Comanche]

What Madison is saying (and I think it is pretty clear) is that unenumerated rights are not second-class rights. He is not saying that the unenumerated rights conflict with the enumerated ones.

[ThomasD]

He's saying exactly what he says - there is no disparagement - ie. no right is subordinate to any other. He would only say that out of an understanding that expressions of rights can and do come into direct conflict. Had he only meant deny, he would have only said deny.

[Marty Comanche]

He's saying exactly what he says - there is no disparagement - ie. no right is subordinate to any other.

That's what I said.

He would only say that out of an understanding that expressions of rights can and do come into direct conflict. Had he only meant deny, he would have only said deny.

Nope. If your understanding of rights is a theory of negative rights -- absolute claims that do not impose positive burdens on others -- then there is no conflict between different rights.

The Bill of Rights was written to address specific grievances that American colonists had against British rule. Some, like Alexander Hamilton, feared that enumerating certain rights would lead to government trampling unenumerated rights; that singling out some rights for explicit protection would wrongly imply that other rights were not protected. This does not mean that the rights conflicted. It just meant that some people foresaw a potential source of governmental abuse.

Your folk jurisprudence about conflicting rights is interesting, but it does not mesh with any legal history across the political spectrum. Oliver Wendell Holmes, Jr , FW Maitland, William Stubbs, GB Adams, Henry Adams, etc. all agree with the origin and purpose of the courts. Your understanding of the how and why of our court system seems to be a completely original invention of yours.

[robc]

You dont have a right to go to a certain place and time, you have the right to attemp to go there. Many things could prevent it, such as someone already being there. In you example, we both try to go tgere at same time and bounce. We both got to make the attempt, we which failed. We both got our rights, it just didnt lead to result we hoped for.

[ThomasD]

"We both got to make the attempt"

Now you are just pretending to engage.

[ThomasD]

"You dont have a right to go to a certain place and time"

Orly? Why not?

[Win Bear]

Rights frequently conflict.

Negative rights don't conflict, positive rights do.

Two people have the right to exist within a particular place and time.

That's a positive right; libertarians don't recognize those. From a libertarian point of view, there is only the negative right to be free from coercion without their prior consent. So, if person A and person B have not explicitly agreed to permit each other to coerce each other, once person A has entered that particular place, person B can't enter it, and nobody's rights were violated.

[some guy]

What if the collision was entirely mutual? Did you both violate each others' rights?

Why yes, yes you did.

No. If we bumped each other, then we both consented to the bump. No one's rights were violated.

What if I bumped you, then later you bumped me? That would be two different, independent cases, each of which would be handled as I stated above. Still no conflict.

This is a simple example, but frankly if you can't imaging anything more complex then you've obviously had very little dealings with the legal system.

I'm talking about natural rights, which aren't the same as civil rights. Civil rights come into conflict all the time because they are often poorly defined, arbitrary and constantly changing (but I repeat myself).

[Azathoth!!]

You don't have a right to 'not be bumped into'.

See? Simple?

You HAVE a right to protect yourself if you are DELIBERATELY jostled.

There's a difference.

[R C Dean]

There is no conflict here. I had no right to bump you. You had a right to not be bumped. No conflict.

I would say you don't have any right not to be accidentally bumped in a crowded space that you entered voluntarily. That's why there is no conflict between the right not to be bumped, and right to walk down the sidewalk.

[some guy]

I would agree with you in a crowded space. I thought we were talking about walking down a sidewalk, where I was assuming that all parties have plenty of room to maneuver without touching each other and so any touching must be either deliberate or due to negligence.

[Francisco d'Anconia]

I would say you don't have any right not to be accidentally bumped in a crowded space that you entered voluntarily.

Do you have the right to not be accidentally punched in the mouth?

How about the right to not be accidentally run over by a car?

If you or your property is touched without your permission, your rights have been violated. As is suggested above, it's a matter of damages for a given indiscretion and whether it's worth pursuing.

[some guy]

I think we're splitting hairs here. If you enter a crowded area where bodies are pressed against each other, you are clearly consenting to such contact. The only way to enter such a crowd is by initiating such contact yourself. And you can't suddenly withdraw that consent once you're in the middle of the crowd and expect everyone to create a halo around you. Well, okay, if you're a university student maybe you can...

[robc]

Three categories: intentionality, negligence, and accident.

You have a right to not be "assaulted" in the first two ways. Accidents happen. Deal with it. The line between accident and negligence can be tricky, but it exists.

[Win Bear]

How about the right to not be accidentally run over by a car?

No, you don't have that right. In fact, you accept the risk of being accidentally run over by a car when you enter traffic.

If you or your property is touched without your permission, your rights have been violated.

People often grant permission implicitly. If you enter a boxing ring, you accept that people may punch you in the mouth. If you enter a public road, you accept the risk that people may run into your car, and you accept the possibility that traffic cops stop and detain you.

As is suggested above, it's a matter of damages for a given indiscretion and whether it's worth pursuing.

Those rules and damages are set out in the contracts under which you enter a particular location and interact with people. In a libertarian world, all those contracts would be private and explicit. In our current system of government, many of those "contracts" are just determined by laws.

[Mickey Rat]

Yes, but which right is misdefined is often not universally agreed upon.

[robc]

Im in charge of pointing out the problems, not solving them!

[Rhywun]

So conservatives get Republican candidates to sign bigoted pledge ("the protection would run in one direction only") and people wonder why gays don't vote for Republicans. I've seen this story before.

[paranoid android]

and people wonder why gays don't vote for Republicans

...does anybody actually wonder that?

[SugarFree]

...does anybody actually wonder that?

Yes, but it usually ends up sounding like "Why don't don't those fucking diseased faggots vote for the GOP?"

[Bobarian (Would Chip Her)]

I wanna know why they won't vote for Libertarians.

[robc]

The writings og SugarFree.

[Notorious UGCC]

So make it a two-way...a two-way pledge, that is.

That way, we can stop the scourge of the Obama administration discriminating against gay-rights activists.

[Rhywun]

Might come in handy when that backlash I keep hearing about arrives.

[sarcasmic]

There are plenty of gays who vote for Republicans. They just keep it in the closet, because if they don't then the Forces of Tolerance will make their lives miserable.

[kbolino]

Or they don't hang around with the sort of people who would shame them for not adhering to the groupthink.

[Suicidy]

Gays mostly engage in groupthink and are co-opted by the progtards.

[Win Bear]

Not voting for a party that has a large share of mindless religious zealots who want to hurt you isn't an instance of "groupthink", it's common sense. Once Republicans kick out Christian conservatives, gays will vote for them in larger numbers. As long as those slavers and nutcases remain in the Republican party, the Republican party will become increasingly marginalized.

And why shouldn't Christian conservatives go over to the Democrats? Their ideology is quite close to progressivism; they simply differ slightly from Democrats in how to micromanage everybody's life.

[ThomasD]

If people are serious about avoiding this sort of legislative response to the courts then we all need to move away from the Thunderdome model of adjudicating rights in conflict.

So long as the process remains a winner takes all system then the problems will only get worse.

[R C Dean]

The root problem is the expansion of the government beyond its enumerated powers.

Its when government starts micro-managing private transactions and private lives that the conflict with religious belief (or other free association, free expression, and free contracting rights) becomes inevitable, and we have to figure out what to do about it.

If it weren't for public accommodation laws, you wouldn't need laws protecting religious belief from public accommodation laws. Repeat ad infinitum.

[Long Woodchippers]

Spot on.

[Tionico]

correction: Obergefell does NOT make sodomite marriage the law of the land. It is an OPINION, and very bad and unconstitutional one at that. FUrther, FedGov have no authority to speak to the issue of marriage at all. That is a STATE matter.
Kim Davis was right in her decision to uphold both the US COnstitution and that of the State of Kentucky. Her rights under the First ARticle of Ammendment were seriously violated.

[Suicidy]

Finally. I've been waiting for someone to point that out. She is right, and everyone else wrong. unlock those illegal sanctuary cities we should be attacking.

[Win Bear]

correction: Obergefell does NOT make sodomite marriage the law of the land. It is an OPINION

SCOTUS opinions have the force of law until legislators pass new laws.

FUrther, FedGov have no authority to speak to the issue of marriage at all.

The FedGov also doesn't have authority to pass religious anti-discrimination laws that interfere with private associations, yet it does, and yet churches support that.

Kim Davis was right in her decision to uphold both the US COnstitution and that of the State of Kentucky.

It's not Kim Davis's job to interpret the US Constitution.

Her rights under the First ARticle of Ammendment were seriously violated.

Kim Davis can do whatever she wants to on her private time; as a government employee, she has to act according to what her employer tells her to do. get a court judgment supporting her actions, or quit/get fired. The First Amendment doesn't give her the right to impose her religious beliefs on others through the force of government.

[Marry Watson]

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[TheAtomicOption]

"It would prohibit the federal government ... from denying ... employment to people because of their positions on same-sex marriage. ... and it would require the government to accept the accreditation or licensing of those who believe or act according to their positions. "

So the federal government would be required to employ people who are unable to do their jobs. Worse it couldn't even avoid hiring people who wouldn't do their jobs.

Once again lawmakers completely misdiagnose the problem, and struggle to patch the construction despite the shitty foundation. Government should not be in the marriage business in the first place. All government unions should be "civil unions". Marriage is a religious thing. Religion is not part of our state the way it was for the British from whom we inherited our common law, so we need to update our law to reflect that.

Removing marriage from federal law would solve all of these problems at once. County clerks would not be asked to grant marriage licenses to gays, so they would not be conflicted about it. Gays would get the legal protections they want so they could gain the advantages of a united household. And the taxpayers could save millions of dollars in stupid court costs.

[Arroway]

With regards to the last sentence in the article, it has been decided that a religious school must hire a man who is married to another man because he is not in a non-admin, non-instructional position. Not sure if it's been covered in the comments, but it's pretty clear what the next step will be in the debate of whether or not religious institutions will have the right to hire or retain those who reflect its core ideals: Guy gets the job, and then complains to the EEOC that because the Catholic church teaches against same-sex marriage, he is being subjected to a hostile work environment that marginalizes him and invalidates his "lived truth".

[Win Bear]

Just end tax exemptions altogether and eliminate non-profit status for all organizations. The current system amounts to an establishment of religion, since it puts government in charge of determining which religions are legitimate and which are not.