Freedom of Religion

"Selectively Abid[ing] by Biblical Teachings"

That's not for secular courts to judge.

|The Volokh Conspiracy |

A commenter on the videographer / same-sex wedding thread writes,

So the Larsons won't shoot weddings if the couples had premarital sex because that would "promote sexual immorality"?

Or do the Larsons selectively abide by biblical teachings when it suites their personal morality and political leanings?

My guess is that the Larsons don't care about past sin, but about things they view as celebration of sin. They thus likely would shoot weddings if the couples had premarital sex—or if they had had same-sex relations in the past, for instance with other partners or in a threesome—but wouldn't shoot ceremonies that affirmatively celebrate premarital sex (e.g., a "shacking up" ceremony, if such a thing exists).

But from the perspective of American First Amendment law, all that is beside the point, because it isn't for courts to decide whether people are unduly "selectively abid[ing] by biblical teachings." Religious people often have to decide what biblical teachings mean, which ones have special significance, and which ones also impose a duty on third parties not to be complicit in various ways with certain conduct (as opposed to not just requiring that conduct). Indeed, since almost all Christians (1) view the Old Testament as very important, but (2) don't comply with all the rules of the Old Testament (such as the kosher laws), they necessarily have to decide which "biblical teachings" remain obligatory and which aren't. And though some religious observers may make that decision based on what they see as purely theological considerations, others will consider their "personal morality" to the extent that it is itself informed by their understanding of their religious obligations. None of that limits either their Free Speech Clause rights or their Free Exercise Clause rights.

Don't just listen to me on this, though; consider the 8-to-1 decision in Thomas v. Review Bd. (1981) (Justice Rehnquist dissented on other grounds), which involved the Free Exercise Clause precedents that generally required unemployment compensation to be paid to people who quit their jobs because of felt religious obligation. Thomas had quit work because he was transferred to a department that made materials for military weapons. The state rejected his Free Exercise Clause claim:

The Indiana Supreme Court … concluded that "although the claimant's reasons for quitting were described as religious, it was unclear what his belief was, and what the religious basis of his belief was." In that court's view, Thomas had made a merely "personal philosophical choice rather than a religious choice."

In reaching its conclusion, the Indiana court … [noted] that Thomas admitted before the referee that he would not object to "working for United States Steel or Inland Steel … produc[ing] the raw product necessary for the production of any kind of tank … [because I] would not be a direct party to whoever they shipped it to [and] would not be … chargeable in … conscience …"

The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments.

But the U.S. Supreme Court disagreed:

Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one….

The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses.

Naturally, all of us are free to second-guess others' interpretations of scripture in coming to our own evaluations of the morality or reasonableness of those others' behavior. But American secular courts cannot make decisions based on such an analysis, or decide that someone's beliefs really are consistent with the Bible and someone else's aren't.

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  1. The charge of moral inconsistency goes to a different tenet of Free Exercise law, which is the extent to which a given claimant has a “sincere” religious belief whose expression is being limited by the application of the law. Now, you’d certainly be correct in noting that the courts treat this question as a rather anodyne factual one, and they do not, as a matter of course, treat patent doctrinal incoherence as meaningfully bearing on the question of “sincerity.” But there is a real distinction there, one that makes all the difference between the stoner trying to get a get-out-of-jail free card on a marijuana charge and the Rastafarians.

    And while we might, as a matter of existing law, ultimately have to conclude that the videographers are sufficiently “sincere” when they say that their for-profit wedding videos are really about the “sacrificial covenant” of marriage (*rolls eyes*), in order to make some kind of First Amendment claim, we aren’t bound to that conclusion outside of the legal context. We can look at these videographers and observe that their moral inconsistency undermines any pretense at religious sincerity their bigoted agenda purportedly has.

    1. There’s nothing inherently wrong with a for profit enterprise by an individual or two also having a religious component. Whether it’s Amish woodworking, a Halal butcher or a kosher bakery, these for profit enterprises all have a significant religious component.

      You view it as simply bigoted because you don’t understand, nor do you really wish to understand, their beliefs. You would instead impose your personal beliefs on them.

      1. You view it as simply bigoted because you don’t understand, nor do you really wish to understand, their beliefs. You would instead impose your personal beliefs on them.

        This argument never makes any sense (which isn’t a surprise coming from you). Every day I may participate in dozens of financial transactions – it may be buying lunch or asking a plumber to fix a dodgy compression valve. At no point does beliefs come into play.

        The Amish are more than happy to sell me a new dresser. The plumber (who has bible quotes on their business card) is more than happy to sell me a service to fix the valve. Even though both of them know I’m gay.

        I don’t care about their beliefs. Only when they refuse offering the public a service or offering selling that same public a good because of some their beliefs does this come into play. And it’s clearly they are pushing their beliefs on the public.

        Here is my advice to you and every misguided baker and wedding photographer out there: grow up. You live in a diverse society – if you want to sell a good – sell it to everyone.

        1. However, this isn’t just purchase of furniture.

          Participating in a wedding is to participate in a religious ceremony. Creating custom art for this ceremony is speech in a religious context. Twice-protected by the First amendment.

          It’s an extreme. Claiming other violations of tenets make them hypocrites is to willfully ignore the concept of magnitude. It is one thing to forget or fall into sin. It is entirely another thing to be forced to participate in a religious ceremony that you do not agree with.

          1. “Participating in a wedding is to participate in a religious ceremony.”

            Wrong.

            1. You may be right but that is a value judgement which you can only make after imposing your own religious beliefs on the situation. If the videographers sincerely believe that participating in a wedding is to participate in a religious ceremony, then we do not get to second-guess their belief.

              1. ” If the videographers sincerely believe that participating in a wedding is to participate in a religious ceremony, then we do not get to second-guess their belief.”

                Why not? Who or what stops me?

          2. “Participating in a wedding is to participate in a religious ceremony.”

            This is 180 degrees inaccurate. There are two separate kinds of marriages… the religious kind (where the church involved gets a say in who they consider married, and who they do not) and the state kind (where the state gets a say in who they consider married, and who they do not). Lots of people combine them, and enter both kinds of marriage at the same time, but it’s entirely possible to enter one without the other. So saying that any marriage involves a religious ceremony is just wrong.

            “Claiming other violations of tenets make them hypocrites is to willfully ignore the concept of magnitude.”

            Well, is directly disobeying Jesus a high magnitude, or a low magnitude, for someone who allegedly follows Jesus? He told his followers to follow the Earthly law (and pay their taxes). Y’see, back then, unlike current-day America, Christians were persecuted.

        2. Brett makes the point. It’s not a good. It’s a “service.”

          And we do live in a diverse society. And part of that diversity is respecting each others beliefs and choices, including the choice not to participate in something that isn’t believed in. I fully support gay’s right to marry. In my own words, “They deserve to suffer like the rest of us”. And I support people’s beliefs, if they don’t agree with. Or, let’s put it a different way for you. If someone wants to be Muslim, so be it. If they want to wear a Hijab, so be it. But I don’t support the Muslim’s right to force others to wear it, not the Muslim’s right to demand others go to services.

          I don’t support people being forced into supporting their ceremony, and violate their beliefs, by using the power of the state as a bludgeon. It’s wrong, and it’s increasingly being used by the extreme LGBTQ community and its supporters. It’s not an issue that services can’t be found. They can be, and easily. But to pick the one baker out of a dozen in an area that doesn’t feel right making a custom cake for a ceremony he disagrees with, demand he make it, then sue him into non-existence when asked to violate his beliefs? It’s wrong. It’s not about discrimination. It’s about using the power of the state and legal system to crush your morals and beliefs onto others. That’s not “diversity”. That’s the type of actions a monolithic state (for example the old Ottoman Empire), would use to crush dissent on a minority. And it’s only going further. Yesterday it’s a cake baker. Today it’s a woman’s homeless shelter in Alaska being sued into non-existence because a very large violent man “identifies” as a woman, and demands to be let in…despite the obvious risk to a group of abused women.

          1. It’s far different to ask toleration of views you don’t agree with than to demand adherence to those views.

            For example Jehovah’s Witnesses are generally opposed to war, but that opposition takes different forms. Some refuse to have anything to do with war including making weapons, others serve in the military in non-combat roles.

            The vast majority of Jehovah’s Witnesses oppose homosexual marriage. But they also generally refrain from the public debate, viewing the laws of man separate from the laws of god.

            1. “It’s far different to ask toleration of views you don’t agree with than to demand adherence to those views.”

              The government isn’t doing either one of these things. (The government isn’t telling anyone to change their beliefs, they’re telling people to change their actions.)

        3. The argument makes complete sense. America is a free society. Nobody has forced you to transact with those who wish to live by their own beliefs AND put food on the table, nor do you have any right to reduce their choice between participating in society or violating their faith.

  2. Prof. Volokh is, of course, correct about what US law provides. Courts don’t look at whether your beliefs are sincere.

    But I vehemently object to this as a normative matter. An exemption from a generally applicable law should be a very rare and special thing. You are asking other people to obey something that you get to flout. Generally applicable laws are a fundamental part of equality.

    And under current law, basically anyone can assert on next to no evidence that their religion prohibits some sort of conduct. Yes, there is a limiting doctrine that looks at state interests, but the notion of equal application of laws isn’t limited to laws with a compelling state interest. All laws ought to be presumptively applicable to everyone. Even laws that serve minor interests such as parking violation statutes and stuff.

    To get an exemption, you absolutely should have to prove that you are completely sincere. You should have to show you have practiced the religion for years– and I mean practiced. If the religion has services you need to have gone to them. If it has tithing requirements you need to have followed them. If it has restrictions on your conduct you need to have followed them. And yes, if the religion has rules about other people’s conduct, you can’t pick and choose only the ones that affect people whom you don’t like.

    That should be the bare minimum for someone to ask for the extraordinary forbearance of not being required to follow a rule that I am required to obey.

    Because honestly, most American religion operates on about the same level as the rich people claiming fraudulent learning disabilities on behalf of their children for additional test time, or the folks fraudulently claiming the need for an emotional support animal on an airplane. It’s just way too easy to get exemptions from the rules.

    1. It would be so much simpler if freedom of association were still a concept. Let the bigots discriminate all they want; I’d rather know who they are so I can avoid them. Instead, we have this screwball world where it matters how sincere someone is, judged by various bureaucrats, police, prosecutors, judges, and juries. Such are always subjective and going to differ.

      Aren’t churches supposed to love the sinner, not the sin? If some guy wakes up late and misses one Sunday service in ten years, does that disqualify him? What if he has rotating shift work or has to be out of town on business or for National Guard service? How many lapses can be tolerated before he is judged insincere?

      1. Freedom of association works fine when you aren’t in business. You can associate with whoever you want, go to whosever weddings you want, and hold and express even extremely prejudiced views.

        The problem is that Jim Crow discredited freedom of association as an argument made by commercial enterprises. Because it wasn’t just one business here and there objecting, but rather entire regions of the country where black people were denied services. The effect was exactly the same as it would have been if the government had mandated racial segregation. So our lawmakers responded with laws making it illegal to discriminate in public accommodations and contracting.

        That’s not a bell that can be unrung. And as a general matter, I would advise people who have very strong political sensibilities to stay out of lines of work where they could be offended. This goes for both sides. I don’t suggest that strident social conservatives become pharmacists or service weddings; I also don’t suggest that strident secularist liberals sell church supplies.

        I have a particular take on this as a practicing lawyer. You often have clients who espouse things you don’t believe them, and you have an ethical responsibility to defend their interests in the legal system. And if one is particularly sensitive to these things, one probably needs to stay out of certain aspects of the law. For instance, a strident feminist who believes that victims of sexual assault should never be subject to stringent cross-examination probably shouldn’t become a criminal defense attorney who handles sexual assault cases. But to me, that’s the answer, rather than saying she can go ahead and do that work and then seek an exemption from the rule of zealous advocacy of her client’s interests on account of her sincerely held beliefs.

        1. Jim Crow was not optional. The government enforced it. Plessy was about Louisiana forcing a railroad to spend money to implement state-mandated segregation.

          Freedom of Association went out the window with Plessy, but the Civil Rights act stomped it to death.

          1. Jim Crow was BOTH public and private. And the South would have almost certainly continued the private aspects of it (including using private violence to enforce it) had the civil rights statutes not been passed.

            As I said, though, that ship has sailed.

            1. “Jim Crow was BOTH public and private.”

              So why isn’t the government discredited by public discrimination?

            2. Plessy forced a railroad to run separate black and white trains, in spite of the railroad, the white customers, and the black customers all being happy with integrated trains. It was a clear case of money talks, bigotry walks, and that was why the government pushed so hard to enforce it against private enterprise.

              What part of government-mandated s so hard to understand?

              1. Actually the law required separate cars. And the railroads didn’t want to have to use more cars than necessary. The railroads conspired to bring the case. As to whether the white passengers were “happy” with integrated trains is a totally different matter.

          2. Some of Jim Crow was government mandated. A lot of it wasn’t. And where it was mandated you have the causation backwards. It was mandated because it was overwhelmingly popular among whites, and blacks of course had no political power.

            Candidates routinely argued with each other as to which was the strongest advocate of segregation.

            We all know about Plessy. It’s a standard libertarian example. Too bad it, and a handful of similar cases, are outliers. It proves nothing.

            1. “Candidates routinely argued with each other as to which was the strongest advocate of segregation.”

              Odd position to take in support of an argument that there was something uniquely bad about private discrimination.

              “We all know about Plessy. It’s a standard libertarian example. Too bad it, and a handful of similar cases, are outliers. It proves nothing.”

              Do you have any examples of post-Reconstruction cases where governments in the south tried to ease discrimination but were stopped by the Supreme Court? Because you seem to be holding southern business to an awful high standard that you don’t apply to any of the governments involved.

              1. Odd position to take in support of an argument that there was something uniquely bad about private discrimination.

                I don’t get your point.

                What I was saying is that Jim Crow was enormously popular among the voters. To complain that it was “government mandated” is to make it sound as if the governments involved were controlled by outsiders who forced Jim Crow on an unwilling populace. They weren’t. There is not much real distinction between purely voluntary discrimination, of which there was lots, and that decreed by state governments.

                Do you have any examples of post-Reconstruction cases where governments in the south tried to ease discrimination but were stopped by the Supreme Court? Because you seem to be holding southern business to an awful high standard that you don’t apply to any of the governments involved.

                No. Though give the nature of Plessy I don’t see how it matters. Again, my point is that libertarians want to take the position of the railroad in Plessy as typical of the attitude of southern business all during the Jim Crow era. That’s just totally inaccurate.

                1. “There is not much real distinction between purely voluntary discrimination, of which there was lots, and that decreed by state governments.”

                  I would agree that there’s not much of a distinction between purely voluntary discrimination and state mandated discrimination when the voluntary discrimination is pervasive, as it was throughout the later part of the Jim Crow era. Which is why it’s odd to use Jim Crow as a cudgel against private enterprise and free association.

                  “Again, my point is that libertarians want to take the position of the railroad in Plessy as typical of the attitude of southern business all during the Jim Crow era.”

                  No they don’t.

                  1. Which is why it’s odd to use Jim Crow as a cudgel against private enterprise and free association.

                    It’s not odd at all. What I was trying to say, perhaps not too clearly, is that Jim Crow would have existed even without the government mandate. IOW, even though the government mandate was there, in some instances, it was not binding. We know this for at least two reasons:

                    1. There were widespread racist practices in areas, most notably employment, where there were few Jim Crow laws.

                    2. Segregation was hardly limited to the South, which was the region that had the laws. Jim Crow practices were widespread elsewhere, where no such laws existed.

                    No they don’t.

                    Seems to me that they do. It’s always, “Hey there wouldn’t have been all this if it hadn’t been required by government. Just look at the streetcars.” Something like that has been argued an uncounted number of times on the Internet.

                    The fact is that economic forces may sometimes discourage discrimination, and they may sometimes encourage it. Absent Jim Crow laws, they would, at that time have encouraged discrimination, as actual history shows.

                    1. “What I was trying to say, perhaps not too clearly, is that Jim Crow would have existed even without the government mandate.”

                      To some extent, sure. There was never going to be a smooth transition from owning blacks as slaves to treating them as equals. But where the government passes actual laws implementing the formal Jim Crow, and where the government refused to act against private violence enforcing the informal Jim Crow, things were much worse. And things got much worse after Plessy, as well, because the Supreme Court sanctioned it.

                      Again, why is private enterprise being held to a standard the government can’t meet? Why does private Jim Crow mean free enterprise is bad, but public Jim Crow doesn’t say anything about the government.

                      “Absent Jim Crow laws, they would, at that time have encouraged discrimination, as actual history shows.”

                      No it doesn’t. The actual history is much more complicated than that. If the KKK tells a shop owner that they will burn down his shop if he sells to blacks, and the local sheriff is the head of the KKK in the county, that’s not market forces at work.

                    2. ” If the KKK tells a shop owner that they will burn down his shop if he sells to blacks, and the local sheriff is the head of the KKK in the county, that’s not market forces at work.”

                      Sure it is, just like when a bunch of the non-KKK white folks come in and say they’d prefer not to shop in the same store as the black folks, and ask if you know of any nearby stores that don’t cater to “their kind”.

                      Businesses “want” to make money, to the extent that non-human entities want anything. More customers correlates pretty strongly with more revenue, which in turn correlates pretty strongly with more profit. To the extent that the white stores had better selection of better stuff, it was actually the black shopkeepers that suffered from anti-discrimination laws, because the white folks were unlikely to switch but the black folks would at least pop in for a look-see.

                    3. Ah yes, how could I ever forget. Threats of violence are just market forces at work. Thanks for your typically insightful analysis.

                    4. “Ah yes, how could I ever forget.”

                      The fact that you’re not very bright in the first case probably had something to do with it.

                      “Threats of violence are just market forces at work.”

                      They’re not “just” market forces, but they are market forces.

                      “Thanks for your typically insightful analysis.”

                      You’re welcome, although you don’t seem to have gotten anything out of it.

                    5. “They’re not “just” market forces, but they are market forces.”

                      Yes dear.

        2. That’s not a bell that can be unrung. And as a general matter, I would advise people who have very strong political sensibilities to stay out of lines of work where they could be offended. This goes for both sides. I don’t suggest that strident social conservatives become pharmacists or service weddings; I also don’t suggest that strident secularist liberals sell church supplies.

          Even if “You shouldn’t choose a line of work where you’d be required to do things your religion forbids” were valid in the abstract, it seems misplaced to cite it in the context of things that arose after you made that choice. Gay marriage is relatively new; someone who became a wedding photographer or cake baker 25 years ago had no idea he would be called upon to do this.

          (For that matter, sexual orientation being covered by public accommodations laws is relatively new.)

        3. I have a particular take on this as a practicing lawyer. You often have clients who espouse things you don’t believe them, and you have an ethical responsibility to defend their interests in the legal system. And if one is particularly sensitive to these things, one probably needs to stay out of certain aspects of the law. For instance, a strident feminist who believes that victims of sexual assault should never be subject to stringent cross-examination probably shouldn’t become a criminal defense attorney who handles sexual assault cases. But to me, that’s the answer, rather than saying she can go ahead and do that work and then seek an exemption from the rule of zealous advocacy of her client’s interests on account of her sincerely held beliefs.

          That’s kind of a poor analogy, given that the remedy for your hypothetical feminist lawyer is not “Don’t be a lawyer,” but don’t accept a person accused of rape as a client. Yes, lawyers must engage in zealous advocacy on behalf of their clients, but they aren’t required to service those clients in the first place; indeed, they may be ethically required to refuse to do so, if they do not feel they can do so zealously.

          Here, the cake baker or photographer or the like is being forced to accept the client for whom he does not feel he can do a good job.

          1. “That’s kind of a poor analogy, given that the remedy for your hypothetical feminist lawyer is not “Don’t be a lawyer,” but don’t accept a person accused of rape as a client. ”

            That’s only a partial solution, since lawyers can be appointed as well as engaged. Most aren’t, but the only way to be certain you won’t be is to not be licensed to practice law.

        4. “The problem is that Jim Crow discredited freedom of association…”

          They were Jim Crow laws, not Jim Crow freedoms…

        5. ” But to me, that’s the answer, rather than saying she can go ahead and do that work and then seek an exemption from the rule of zealous advocacy of her client’s interests on account of her sincerely held beliefs.”

          The problem is the dreaded slippery slope. If people can get exemptions from laws because of their religions, no limit, that means no prosecutions for murder for the people who adopt religions requiring human sacrifice, of which there are several choices plus splinter offshoots from the big ones.
          So, OK, we have to draw a line. So… which people get to be on which side of the line? I vote for “I’m exempt but you’re not”, but I suspect you might have a different take. If you and I get together and vote exemption for you and I, but leave others out, is that fair? Will we still think so when those others get a majority, and vote themselves in and us out of the exemption?

    2. But I vehemently object to this as a normative matter. An exemption from a generally applicable law should be a very rare and special thing. You are asking other people to obey something that you get to flout. Generally applicable laws are a fundamental part of equality.

      To be clear, that argument you’re making is about a RFRA type situation. This is a 1A compelled speech case, so it does not turn on religious beliefs at all.

      To get an exemption, you absolutely should have to prove that you are completely sincere. You should have to show you have practiced the religion for years– and I mean practiced. If the religion has services you need to have gone to them. If it has tithing requirements you need to have followed them. If it has restrictions on your conduct you need to have followed them. And yes, if the religion has rules about other people’s conduct, you can’t pick and choose only the ones that affect people whom you don’t like.

      That should be the bare minimum for someone to ask for the extraordinary forbearance of not being required to follow a rule that I am required to obey.

      That seems like a pretty extraordinary position to take. A person goes to prison. Asks for special halal food (or kosher). The prison says, “Sorry, we’ve done a deep dive into your past, and it seems that you skipped Zuhr prayer on many occasions, so no special diet for you.”

      1. And to be clear, I didn’t comment on the compelled speech post on this case because I do think these litigants have a reasonable argument, not only on the law but as a normative matter, on the compelled speech issue. I think it’s entirely plausible that a person making a wedding video is in some sense conveying a celebratory message.

        As for your prison hypothetical, it’s different because prisoners are under the full control of the state and what you are talking about is a dietary accommodation, not an exemption from a criminal or civil regulation. Honestly, prisons should routinely accommodate any reasonable dietary request, including religious ones.

        What I am talking about is when, on the outside, we say that X is illegal. If you want to get a special privilege to do X anyway, you had better be a real believer.

        1. ” I think it’s entirely plausible that a person making a wedding video is in some sense conveying a celebratory message.”

          More specifically, it is the editor who conveys a message. The photographers can FAIL to convey a message, say by overexposing or poorly composing, but if the raw footage is done competently and is available, it can be re-edited to convey just about any message.

    3. Under your standard would a Catholic who attends Mass every “required” day and more, confesses regularly, volunteers for church organized good works, and regularly contributes a substantial portion of their income to the church but uses birth control be disqualified from asserting exemptions based on their religion?

      Suppose a group broke off from the Roman Catholic Church and started their own religion which promoted following all the precepts, beliefs, and guidance of the Roman Catholic Church except the ban on use of birth control. If this person above joined that church and continued their behavior within that church, would they then suddenly be allowed to assert exemptions based on their religion?

      1. Generally that person should get an exemption, but not if the specific thing that Catholic wants an exemption from is the Obamacare contraceptive mandate.

        1. Generally, a person should be allowed to decide about things for themselves, and not other people. So, if your religion says no porcine products, you don’t get to eat bacon. But you don’t get to decide that other people can’t have bacon. When you want to use YOUR religion to limit MY choice(s), I’m going to fight that.

          This works out to, if your religion says no birth control or gay weddings, then you shouldn’t have any birth control or get a gay wedding. But just because I don’t want an abortion or a gay wedding, that doesn’t mean I want to be told I can’t have one.

    4. I have a somewhat intermediate position. On the one hand, I disagree that Religion Clause protection is only available to saints who perfectly adhere to religious tenets and is unavailable to ordinary people who generally don’t. On the other hand, I am inclined to agree that the government can be somewhat skeptical with newly-espoused beliefs, especially when they are a very convenient way out of a pre-existing governmental obligation, cases like the prisoner who developed a new religion with porn as his scriptures, or the people who developed a new religion with marijuana as a sacrament.

      I recognize that this approach tends to favor existing religions and long-standing commitments over new ones. But any rule based on evidence tends to favor those who have developed a lot of evidence over those who have developed less, even though the reasons evidence develops often have little to do with reasons of strict justice. In addition, I would apply it only in fairly egregious cases, where there is evidence the religion is being espoused principally as an excuse to get out of something. So I would still presume sincerity, but think the presumption should be overcome le by somewhat less evidence than at present.

      1. The thing is, people who are members of existing religions also play fast and loose to get exemptions. I bet you at least some of the folks who brought challenges to the contraceptive mandate have personally used birth control devices that violate the Catholic Church’s rules.

    5. Courts don’t look at whether your beliefs are sincere.

      I don’t believe that’s quite right, it is the court’s business whether beliefs are sincere rather than pretextual. What is not their business is whether beliefs are valid, or orthodox, or followed to a minimum standard of zealotry.

    6. Dillian, I might agree with you. IF the laws were not being enforced in a way as to deliberately run afoul of clearly established religious bounds. The bounds are clearly there, and the law is being re-interpreted, not by the legislature, but by administrators and the courts, and becoming substantially more restrictive. The church has stood still, and it is unelected administrators and self-appointed plaintiffs who are running into them.

      I might remind you. We are discussing participation in a religious ceremony. This is a big deal. The ability to chose what religious ceremonies to participate in was one of the founding causes of the American colonies.

      1. I don’t see how a videographer is a participant.

        The stronger theory here, by far, is free speech.

        1. While you’re not responsible for all arguments made by liberals, your argument is a common one made by liberals: “Oh, you’re not being asked to participate; you’re just being asked to provide a service.”

          But at the same time, many liberals seem to have no trouble taking an expansive view of personal involvement when their own ax is being gored. Think, e.g., of people protesting against their employers providing services to the CIA, or ICE, or the like.

          1. I agree liberals do that, but do we argue that folks fired for such refusals to “participate” should be able to sue? I haven’t heard it.

          2. “Oh, you’re not being asked to participate; you’re just being asked to provide a service.”

            Whether or not liberals like to make this argument, it’s still a good one. There are several differentiating elements. An obvious one: Participants in the wedding don’t get paid to be there, service providers do. (Not a completely accurate rule, though… sometimes the officiant gets paid; when they do are they being paid to provide a service? Presumably, when you hire the Elvis impersonator to officiate your Vegas wedding, you get one answer, and when you tip your religious professional, you might get another. Hopefully, when you try to tip your booze-cruise captain to do it for you, he or she tells you that being a ship captain isn’t actually enough to empower them to officiate state-recognized marriages.)

        2. By making a formal record of the ceremony.

          1. The formal record of the ceremony is made by the officiant and the witnesses, and then the clerk’s office at the courthouse. The clerk is “coerced” into participating, because it’s the clerk’s job. They can avoid being coerced into participating by resigning the job. The officiant and the witnesses participate voluntarily.

            On the other hand, people who want a religious ceremony and not a legal one, can do pretty much whatever they want. It won’t be recognized by the state, and it may or may not be recognized by God, but that’s His business. Religions can (and do) have different rules for marriage than do the various states.

            Neither of these things has much to do with whether or not it is (or should be) legal to deny services to people.

    7. “Proving” sincerity, ie state sanctioned religion, is off the table. If there’s one thing that America should never forget, it’s how Puritans, Catholics, Quakers, and other persecuted groups fled to escape the state telling them what was permitted and not.

  3. “My guess is that the Larsons don’t care about past sin, but about things they view as celebration of sin.”

    OK, a different hypothetical: The couple being married swears up and down that they don’t have any sex at all. And the objection to filming the wedding is…

    1. Old-timey intolerance with a superstition chaser, of course.

  4. Are their religious beliefs even relevant in this lawsuit. This is a free speech case, not a freed exercise case. They’d clearly lose on a free exercise argument (Employment Div. v Smith). And if Minnesota interprets their anti-discrimination laws to forbid it there obviously isn’t a state RFRA to look to (it is possible that the state constitution can go further but that isn’t what is being argued).

    Whether their desired speech is religious in nature or not seems wholly immaterial.

  5. “And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins.” – Exodus 22:16-17 (KJV)

    It doesn’t say whether it’s OK to video the ceremony.

      1. Are you one of them grammar nazis of which I’m always hearing about?

        1. Nope, “not OK” alternative to “OK.”

  6. “My guess is that the Larsons don’t care about past sin, but about things they view as celebration of sin.”

    My guess is that the Larsons are just gay-bashers who figure their stale bigotry is improved by a claim rooted in cherry-picked superstition.

    1. Bigotry is intolerance towards those who hold a different opinion from themselves.

      What does that tell you, Rev?

      1. ‘Calling a bigot a bigot is bigotry’ is just as persuasive as is ‘Democrats are the real racists.’

        People are and should be entitled to believe as they wish.

        Competent people neither accept or advance superstition-based arguments in reasoned debate, however, particularly with respect to public affairs.

        Are the right-wingers who support the gay-bashers in this context the same right-wingers whining about YouTube, Twitter, Facebook, and other companies declining to associate with right-wing bigots — or are they different whimpering right-wingers?
        And racism, gay-bashing, misogyny, and the like are not improved by being infused with superstition.

        1. “People are and should be entitled to believe as they wish”

          If you believe this, then why do you insist on forcing people who believe differently via the legal and fiscal system to accede to your demands that they violate their beliefs? Why do you denigrate them, insult them for what you call “superstition”, and demand that they submit?

          These are people who are quietly living their lives. They aren’t “gay bashing” on the street, rushing into the halls of gay marriages, screaming “Ha, I won’t bake a cake for you!” These people are quiet, they are amazingly tolerant, but they choose not to violate their own beliefs when asked to. They quietly say “This other baker may be able to help you, we don’t do that here”, and let it go.

          True Bigotry is intolerance to the idea that other people could even have such an idea. And a demand that that idea must be destroyed, and those people must submit to your way of thinking. And it’s really what you’re promoting.

          1. “If you believe this, then why do you insist on forcing people who believe differently via the legal and fiscal system to accede to your demands that they violate their beliefs?”

            It isn’t the government’s business to regulate what people believe, but it IS the government’s business to regulate what people do.
            What would happen if you gave people a pass to ignore laws because the law “violates their beliefs”?

  7. The commenter well illustrates the human tendency to regard those one strongly disagrees with as evil, ill-motivated, etc.

    That tendency exists on both sides of controversies.

    It is a reason why I don’t think a bare majority of the Supreme Court should have power to strike down a law that justices, sometimes appointed precisely for their zealous advocacy of an opposing political view, subjectively believe is based on “animosity.”

    Everybody tends to think the people who believes things they strongly disagree with can’t be sincere about their believes. The commentator Professor Volokh is posting about is no exception. And that’s why it’s important for the court to decide cases based on objective views of people’s rights.

  8. The lack of charity and critical thinking here is stunning to me. I think it’s really obvious what the dividing line in the plaintiff’s mind is. A heterosexual marriage is not regarded as promoting sin, even if the parties involved are themselves sinful, which is a core assertion of basic Christian doctrine. A homosexual marriage by long-standing Christian ethics and theology is inherently sinful.

    So to the videographer, a heterosexual marriage in and if itself is not sinful, regardless of the actions of the parties involved, whereas a homosexual one is.

    Agree with that or not, I think it takes a lot of plumb ignorance or willful misunderstanding to see that the line of thinking espoused by the comment that is the subject of this post is apples to oranges.

    1. And it gets even better, because (see above) the Bible in Exodus 22:16-17 gives its blessing to the ancient Israelite version of shotgun weddings, so I don’t see how (even if it were relevant) the plaintiff is ignoring “Biblical teachings” on fornication – quite the contrary! (If we impose on him the most literal interpretation of the Bible we can, as these “aha!” accusations usually do)

    2. I have a phrase for this
      “Creating false hypocrisy through willful misinterpretation”.
      It’s rampant in anything concerning religion, but especially Gay rights and abortion. Someone will point out that someone doesn’t follow everything in the bible and call them a hypocrite who shouldn’t be listened to. This includes laws people consider unimportant, laws that are purely symbolic, and laws that were later revoked.

      1. Biblical interpretation is a very flexible tool. It’s not at all uncommon for people on both sides of an issue to quote Scripture at each other.

        God will sort it out when He sees fit to do so.

  9. “Selectively Abid[ing] by Biblical Teachings”
    Nothing new, Henry VIII of England and the Pope had the same problem in the 1500’s.

  10. “My guess is that the Larsons [sic] don’t care about past sin, but about things they view as celebration of sin.”

    Matthew 19 makes it clear that the sin of divorce is really the sin of divorce *followed by remarriage*: “Now I say to you that whoever divorces his wife, except for immorality, and marries another commits adultery.”

    So the real consistency question facing the Larsens is whether they also do videos of remarriages that follow a divorce (which would include mine). Their web page does not address this.

    Also, while I’m on the subject, Acts 15 is often read as allowing *some* selective adherence to Old Testament law. (Though not, as above, to the ten commandments.)

    1. Nowadays, even the Pope is down with divorce and remarriage.

      So why can’t the plaintiff approve of it?

      1. I think the Catholic church is down only with *annulment*, which is conceptually quite different from divorce.

        The plaintiffs are free to approve of whatever they want, but the rest of us may judge them based on, among other things, their consistency.

        1. The Pope hasn’t only made annulments easier, he wants divorced-and-remarried people to be able to take Communion without prior repentance, even if there hasn’t been an annulment.

          He adds some hemming and hawing about a journey of discernment and other weasel words, but that’s the bottom line.

          https://cruxnow.com/global-church/2016/09/12/pope-okays-argentine-doc-communion-divorced-remarried/

          Of course, some bitter clingers insist that this would be a horrid sacrilege which not even a Pope could countenance, but these clingers are presumably dying off and soon all Catholics will be like Episcopalians, only much woker.

          1. “The Pope hasn’t only made annulments easier, he wants divorced-and-remarried people to be able to take Communion without prior repentance, even if there hasn’t been an annulment.”

            Meh. The pope is free to establish which marriages his church considers valid. I’m free to decide which marriages I find valid. And… the state is free to decide which marriages it finds valid, and to draft its statutes accordingly.

            1. “I’m free to decide which marriages I find valid.”

              Of course you are, because you agree with the government’s definition and you are always free to agree with the government. The plaintiffs in this case don’t agree with the government’s definition, so they apparently haven’t chosen to exercise their right of agreeing with the government.

              1. “Of course you are, because you agree with the government’s definition”

                Tell me more about what my opinion is. Do I think you’re a tool? I’m inclined to think “yes”, but I won’t know for sure until you tell me what my opinion is.

                1. Yes, it’s a mystery whether you agree with the government’s definition, certainly as associated with this case.

                  1. For all I know, you might dissent from the government – you might believe that marriage is the union of one man and one woman, and nothing else.

                    You’ve simply been criticizing your fellow traditional-marriage supporters for being in the video business.

                    It’s simply a mystery.

                    1. If everything you don’t understand is a mystery, you should get together with a couple of girls and a talking dog and drive around in a van.

                    2. …and pulling off your mask of neutrality, we find that you are indeed a supporter of the government defining marriage to include gay marriage.

                      But this episode wasn’t broadcast because it wasn’t enough of a mystery to satisfy the audience’s high standards.

                    3. “pulling off your mask of neutrality, we find that you are indeed a supporter of the government defining marriage to include gay marriage.”

                      Ruh, roh Reddy! Missed the mark again!

                    4. OK, you *don’t* agree with the government that marriage includes same-sex unions.

                      Why, then, do you want the government to hassle people for believing as you do, by driving your fellow-believers out of the marketplace?

                    5. You still aren’t done flailing around?

                    6. There’s a law which apparently you haven’t heard of called the law of non-contradiction. You either support the government’s definition of marriage or you don’t.

                      Though by suggesting you don’t support the government’s definition, you make your position even more untenable, since you’re trying to impose a definition on others which you don’t believe in yourself.

                      Thinking you supported the government’s definition was the *charitable* interpretation of your views, but if you find the charitable version offensive I’ll be happy to put you down for the contrary position.

    2. I am not a Christian, but my understanding is that some Protestant denominations do allow remarriage after divorce. So if the Larsons are of that denomination, they are not hypocrites.

      Fortunately, we Orthodox Jews follow Deuteronomy 24:1-4, which provides for divorce and then remarriage.

  11. The charge of “hypocrisy” here is specious, if not willfully ignorant.

    While the Larsons can speak for themselves, the objections to performing these services generally given are (a) that aiding someone in a sinful act is itself sinful and (b) expressing approval and celebration of sin is itself objectionable.

    OTOH, there is reason why a religious person would object to provide services to sinners where their sin has nothing to do with the services. There is no religious obligation that I know of to only do business with saints.

    The above objections are implicated by a SSM ceremony. The videographer is aiding a sinful act, and using his/her talents to create a video expression which celebrates sin.

    The above objections are NOT implicated by a ceremony between a man and a woman who were sleeping together. Their past actions are sins, but the videographer is doing nothing to encourage, aid, or celebrate the past sin. Indeed, to the contrary, the marriage will now remove the sinful status in the couple’s future relationship.

    For the same reason, taking a video of (or baking a cake for) a birthday party, even between two people living together, also does not implicate the above objections. Celebrating a birthday is not a sin. That the customers happen to be sinners has nothing to do with the services offered.

    1. “While the Larsons can speak for themselves, the objections to performing these services generally given are (a) that aiding someone in a sinful act is itself sinful and (b) expressing approval and celebration of sin is itself objectionable.”

      They could, of course, resolve the problem all by themselves by finding another line of work, one that doesn’t involve approving of other peoples’ marriages. Just as a Muslim who objects to handling pork products might want to quit his job at the hot-dog plant, rather than demanding that the government back his demands to only work on the days when they’re making hot-dogs out of cow parts. Although, come to think of it, perhaps they could job-share with a Hindu who objects to handling cow parts, and thereby find a way to peace in Kashmir.

      1. By the same token, a professional filmmaker of a secular orientation could choose a different line of work, where he won’t be required to make films in favor of Christianity, Islam, Judaism, or any other religion which he doesn’t like.

        That’s why secular-minded producers, directors, actors, etc., should all be required to devote part of their time to working on Bible stories, Hanukkah tales, and films about the rightly-guided Caliphs.

        1. Further examples – an agnostic filmmaker should be required to film nativity scenes with the same positive slant as he gives to a commemoration of Christopher Hitchens.

        2. “By the same token, a professional filmmaker of a secular orientation could choose a different line of work, where he won’t be required to make films in favor of Christianity, Islam, Judaism, or any other religion which he doesn’t like.”

          Well, he should probably avoid taking a job with a studio that is affiliated with a religion he doesn’t like, if he wants to avoid making pro-religion films more than anything else.

          If you find that your job conflicts with your religion, you should pick a different job… that’s usually easier than picking a different religion. YMMV. Either way, whining about how your job conflicts with your religion resolves nothing.

          1. “taking a job with a studio that is affiliated with a religion he doesn’t like”

            That’s not what the plaintiff did here.

            1. If you go into the business of making X in exchange for money, you’re in the business of making X for money. The simplest way to avoid having to make X for people you don’t approve of is to not go into the business of making X.

              Are you having trouble following this, Eddy?

              1. No, you’re just misstating the issues as usual. At least the judges saw through pretenses like yours and got to the realities of the dispute.

                1. That’s a lot of words, when “yes” would have been enough.

                  1. Read the court’s opinion and weep.

                    1. Because?

                    2. Because it addresses your concerns, expresses the true state of the issue, and refutes simplistic arguments like yours.

      2. Just as a Muslim who objects to handling pork products might want to quit his job at the hot-dog plant, rather than demanding that the government back his demands to only work on the days when they’re making hot-dogs out of cow parts.

        You seem to have the govt. coercion part of this backwards.

        The Larsons want the govt. to leave them alone, to produce videos as their conscience and talents will allow. The govt. wants to force them to produce videos that celebrate what they consider to be abominable sin, or else quit the video business altogether. The notion that such is consistent with the First Amendment is laughable.

        In your example, in contrast, the hypothetical Muslim wants to the govt. to force a private employer to change its way of doing business.

        Your solution, in essence, is that a party that wants to engage in expressive activity, and also make that part of a commercial enterprise, must surrender his artistic license and beliefs to the govt. Sorry, that does not wash, and is no different from a govt. dictating to a newspaper or magazine what to publish.

        1. ” The govt. wants to force them to produce videos that celebrate what they consider to be abominable sin”

          No it doesn’t. It just says that IF you offer the service of videotaping weddings, THEN you can’t discriminate because the people getting married have a combination of naughty bits you disapprove of.
          People who don’t offer the service of videotaping to the public, aren’t coerced into making wedding videotapes of anybody.

          Might as well complain that the government coerces people who make oatmeal from keeping rat droppings out of the oats. If you want to make oatmeal for your own consumption, you can stir in as many rat droppings as you like. If you offer oatmeal to the public, though, the whole “no rat droppings” regulatory net falls on you.

          “Your solution, in essence, is that a party that wants to engage in expressive activity, and also make that part of a commercial enterprise, must surrender his artistic license and beliefs to the govt.”

          My solution is to note that literally everything in life is a tradeoff between multiple choices. If you choose the positive aspects of choice A, you get the negative aspects of choice A, as well. If the negative aspects of choice A are unacceptable to you, then you should consider choices B through Z.

          1. It’s quite simple – you have a right to disagree with the government, but it you choose to go into the newspaper business you can’t criticize the government in your newspaper. It’s simply a trade-off which magically materialized out of thin air.

            1. “you choose to go into the newspaper business you can’t criticize the government in your newspaper. It’s simply a trade-off which magically materialized out of thin air.”

              It does seem to have magically materialized out of thin air, yes.

              Did you intend to be taken seriously?

              1. I intended to show the lack of seriousness of your own ideas, that going into the business of selling expressive material *for money* means you lose your First Amendment rights.

                1. “I intended to show the lack of seriousness of your own ideas”

                  It’s a fail on your part either way, but if this is the branch you want your failure to take, go for it!

                  If you want to show ANYTHING about my ideas, I suppose first you’ll have to figure out what they are, and quit substituting your own straw ideas. Yes, they’re easier to fight than real ones, but you accomplish nothing.

                  1. Sticking your fingers in your ears and denying the logical consequences of your own position isn’t the same as exposing a straw man.

                    Your own expertise at straw-manning seems to have made you sensitive on that topic.

  12. On a serious note –

    I think a publisher, filmmaker, or Internet site should be free to decide what to publish or film without being forced by the government to carry messages (s)he disagrees with.

    Likewise, the owner of a meatpacking plant should be able to set rules of conduct for the plant’s employees, such as requiring that they work on any or all of the specific meat products at the plant.

    The government shouldn’t force the plant owner to keep people on its payroll who for whatever reason refuse to do their jobs as described in the employee rules of conduct.

    And neither should the government force Larry the atheist video maker to film a Christian service with just the same positive spin as he gives to an Ethical Culture lecture.

    1. “Likewise, the owner of a meatpacking plant should be able to set rules of conduct for the plant’s employees, such as requiring that they work on any or all of the specific meat products at the plant.”

      Should they be allowed to hire only non-citizens, and ignore the “only people with authorization to work in the US can be employed in the US” suite of laws? Should they be allowed to force employers to work despite lacking employee-safety equipment?

      1. Maybe you can answer those questions, since you are *also* advocating for employer autonomy in setting standards for their employees.

          1. “Just as a Muslim who objects to handling pork products might want to quit his job at the hot-dog plant, rather than demanding that the government back his demands to only work on the days when they’re making hot-dogs out of cow parts.”

            It’s wrong to demand that the government to demand private companies to do X, but you’re totally *not* saying that employers should have some autonomy in setting standards for their employees.

            I understand now.

            1. “I understand now.”

              That would be a nice switch, but I have considerable doubt as to your veracity in making this statement.

              You somehow managed to twist “if you don’t like doing the job, you should quit doing it” to somehow “advocating for employer autonomy in setting standards for their employees.”

              1. I’m very sorry, I should never have assumed you were in favor of freedom in any area of life.

                1. I was right to doubt your understanding.

                  1. You can’t understand why people don’t just accept that the court was wrong and the Minnesota authorities were right.

                    Maybe if you made some more Scooby-Doo jokes or references to rat droppings, then perhaps people would understand where you’re coming from.

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