Tuesday, July 15, 2014

Marriage Equality and Religious Freedom

Recently we passed the one year anniversary of the Supreme Court ruling striking down the Defense of Marriage Act (DOMA).
A few months after closing arguments but before their ruling I wrote - "When discrimination is prevailing and accepted, it takes great effort to overcome.  We've had to hear the real stories of real people who have been harmed by the effects of discrimination.  We've had to overcome the myths and lies that justified the discrimination.  And we have had to force the issue until it could be raised before the Supreme Court."
Once again, the issue of marriage equality is marching toward review by the Supreme Court. In state after state, same sex couples have tested bans on their right to marry. While many are still pending and some are destined for appeal, EVERY ruling so far has deemed marriage bans unconstitutional.
I believe that's 14 to ZERO at this point.
Opponents, at first, determined that "activist judges" were hearing the cases - thus the reason for losses. Now, even Federal Judges appointed by conservative republicans have ruled that marriage bans were unconstitutional. Why is this happening?
These judges are hearing real stories from real people who have been harmed by these marriage bans. They require factual testimony from both sides. Plaintiffs have provided substantial evidence of very real harm to their lives. Meanwhile, defendants (anti-gay) have provided UN-substantiated evidence of potential harm. They have tried and continue to desperately argue that their position is much more than one of religious belief and that there is some pending danger if marriage equality becomes the law of the land. Judges weigh the facts and the facts favor the plaintiffs.
Anti-gay forces are now trying to gain traction with the argument that their religious beliefs are being trampled. It's like the moment the playground bully gets confronted and cries that he is being picked on.
The issue of marriage equality will continue again to the Supreme Court. It actually is a religion versus constitution issue and it's not the only one. We are watching the boundaries of religious dominance shift. We are seeing it with marriage equality, issues of contraception and the ability to religiously limit access, and with attempted legislation to allow various forms of discrimination based on religious belief.
While lower courts are consistently ruling more in favor of individual civil rights, it's difficult to determine how the Supreme Court will rule. The majority seems to favor large corporate and institutional dominance. The DOMA ruling was close.
But now, Massachusetts has had marriage equality for a decade. The state has not been unusually struck by any form of catastrophe. Tens of thousands of same sex couples are now legally married across the county. The biggest question remaining is how "religious freedom" is defined. Does religious freedom allow you to impose your religious beliefs on your employees or customers?
The majority at the Supreme Court seem to be supporting freedom for the powerful over individual freedom. They appear to be leaning, with the Citizens United and Hobby Lobby ruling, toward granting protection for entities as though they are individual "people".
As the marriage equality cases make their way up, the court will likely seek hearing of a case that includes religious objections as a "religious freedom" issue. There actually is precedent when applied to civil rights. The court ruled against religious exemption in a case where the argument was that a businessman had deeply held religious convictions that demanded he segregate the races. But that was decades ago and a very different Supreme Court.
It will be interesting to see what this Supreme Court does.

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