Bruce Ledewitz, a Law Professor at Duquesne University, writes a most obnoxious piece at Philly.com, which demands a reply:
If we act now by legalizing gay marriage with a strong religious exemption, Pennsylvania can play an important role in bringing our divided nation together. Yes, there will be the odd caterer who does not want to serve at a gay wedding. But this reluctance will fade over time. And, anyway, who wants a resistant service provider at a wedding?
But if you read through his post, even Ledewitz admits the notion of a win/win is a ruse:
If supporters of religious liberty wait until there is majority support for gay marriage in the legislature to press for a religious exemption, they will get little. The U.S. Supreme Court has already held that religious exemptions are not usually required by the Constitution.
In other words, those who oppose same-sex marriage better try and trick marriage equality proponents into thinking this is a win/win and get what they can now, because later they will most likely get less. This isn’t about constitutionality; it isn’t about fairness; it isn’t about justice; but about generating special rights- the right to discriminate for a few based on very shaky theology.
Usually, one thinks of a law professor as sticking to the facts of the law with that law being grounded in the Constitution. But Ledewitz seeks a way to enshrine discrimination into State law in ways counter to the Constitution. Already, religious institutions get special rights, and he seeks to extend those special rights in the guise of compromise.
This quoted material is a prime example of the snake-oil salesman logic of the post. What is the purpose or need for of a “strong religious exemption” if it is just “the odd caterer” that we are contending with?
But I hope that the Arizona experience has not tainted the concept of a religious exemption in exchange for a gay-marriage bill. I propose that Pennsylvania practice mutual compassion and strive for common ground by including a broad religious exemption, including businesses, within a law legalizing gay marriage, while limiting the exemption to services at the wedding ceremony itself. This would be democratic horse-trading in the best tradition, in which both sides give up something in order to get something more important in return.
This draws a new hierarchy for service providers. Currently religious exemptions tend to cover priests, ministers and those who teach within a religious setting. Ledewitz would add to that some businesses but not others. How would these lines be drawn? Surely wedding photographers fit the exemption, as most of their work happens surrounding the wedding ceremony. But what about dress makers, or cake bakers? How does proximity to a service alter things, and why does it become a justification for allowing discrimination?
Or maybe Ledewitz really only cares about the one offering the primary service at a wedding- the priest or minister or other Holy person officiating and the space within which the wedding happens? Some of those opposed to Marriage Equality fear that Government will force Priests to officiate although there is no rational basis for this fear. Consider how gender is a protected class for nondiscrimination protections, yet no one has ever tried to Force the Catholic Church to give up their refusal to ordain women?
In my opinion, Ledewitz gets a number of things wrong, which is surprising. He is a smart guy; even his students who rate him poorly see him as a smart guy. Here is a detailing of what he has wrong in my opinion.
What he has wrong about Arizona
Ledewitz conflates, as most opponents of marriage equality do, religious practice and the state’s role in business and commerce. Across the country, less than 50% of US workers are protected from anti-gay discrimination. That means gay, lesbian, bi, trans and queer persons, as well as those perceived to be LGBTQ may be legally discriminated against in employment, housing and public accommodations. Ledewitz is sneaky as he writes:
The law might even have allowed businesses to fire, or refuse to hire, gay employees – or, indeed, members of other faiths.
Arizona already allows LGBTQ persons to be fired or refused housing or public accommodations. Does he mean to imply that in Arizona, LGBTQ persons are currently protected in employment? Why would he use the phrase , ” might…” Surely as a law professor he must know or be able to research Arizona law.
Perhaps, he hedges his comments because the law was untested, and no one was quite sure how it would get used and abused, which is one of the best reasons not to allow discrimination based on sexual orientation, gender identity and expression. The risk for abuse and harm to others is too great, ad it benefits no one really.
While many states do not protect LGBTQ persons, in no state is that discrimination affirmatively spelled out in the law except in state bans on same-sex marriage. But these are falling as unconstitutional in conservative districts as well as progressive districts. Judges appointed by conservative Presidents and liberal presidents alike have all found these types of bans unconstitutional. For any state to accept into law a broad religious exemption is irrational, but Ledewitz looks for this to happen with the LGBTQ communities’ acceptance in the name of a win/win compromise. It reminds me of how the Dutch bought the island of Manhattan for some trinkets, a deal proposed as being beneficial to all. Hog wash.
He had one part correct: that the Arizona law would have allowed businesses to refuse service to those of other Faith traditions. Any Christian could deny service to a Jew or a Muslim. The Arizona law demonstrates why strong religious exemptions are bad rather than useful.
What he has wrong about the Supreme Court
It is a mystery why he feels Kennedy won’t dismantle state bans on same-sex marriage. He writes:
People talk about the prospects for gay marriage at the U.S. Supreme Court, but I am confident that Justice Anthony Kennedy will not vote to strike down state gay-marriage bans,
Is this the same Kennedy described on wikipedia this way: (emphasis is mine)
On August 4, 2010, Dahlia Lithwick wrote about Judge Vaughn R. Walker‘s ruling that overturned California’s Proposition 8 banning same-sex marriage, Walker “is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans … and eight citations to his 2003 decision in Lawrence v. Texas … In a stunning decision this afternoon, … Walker trod heavily on the path Kennedy has blazed on gay rights.“[29]
There are plenty of reasons to think Kennedy will be in favor of striking down state bans as unconstitutional. Ledewitz is known to love theory and speculation, so it is surprising he is so certain when others are not. This summary is especially illuminating of Kennedy’s positions. In addition, Kennedy is not the only person who could be the swing vote.
What he has wrong about Conscience
Ledewitz cites a few examples to illustrate the notion of exemption based on religious conscious, however, he glosses over a very critical element of why his examples are good but don’t apply towards same-sex marriage. In both examples, a person is not forced to take an action inconsistent with their religious observance. But there is no religious doctrine against cake baking or flower arranging. Indeed, from a Christian tradition, Jesus speaks about excelling in service to non-christians. I’ll write a whole blog post about this and link it later. The solution s simple, if a person is opposed to same-sex marriage on religious grounds, then don’t get married to a person of the same-sex.
Why Pennsylvania?
While Ledewitz pretends this is all about Pennsylvania leading the rest of the country, in reality, this is an effort to get any state to put stronger religious exemptions into law to help slow the acceptance of marriage equality. The Catholic Conference is the lobbying organization in Harrisburg, and they have more paid lobbyists than all of the progressive organizations combined. When you couple their lobby efforts with other conservative and religious groups, they have enormous power!
Discrimination Is Wrong
No matter hoes you try and look at it, discrimination is wrong. You can’t create an exemption for those who provide services at the ceremony and pretend that is protecting religious freedoms. Providing a service to couples getting married is just that, providing a service, and all couples deserve to be treated with respect and fairness everywhere and especially here in Pennsylvania.
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