A solution in search of a non-existent problem

Posted by AzBlueMeanie:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." — First Amendment to the U.S. Constitution

The progressive Arizona Constitution similarly protects "liberty of conscience," Ariz.Const. Article 2, Sec. 12.

There are federal and state laws that also protect the free exercise of religion from government interference.

Nevertheless, Rep. Steve Montenegro (R-Litchfield Park) wants to make it illegal for government to “require a minister to solemnize a marriage inconsistent with a minister's sincerely held religious beliefs.” Dude, there already is a law! This is a solution in search of a non-existent problem. Proposed law offers religious leaders exemption from conducting gay marriage services:

Montenegro acknowledged there is currently no danger of such a mandate.

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Montenegro said he is trying to keep his own measure as narrow as possible.

For example, it spells out that the protections against having to recognize a same-sex marriage does not extend to hospitals, hotels, restaurants, businesses or other places of public accommodation. That is designed from it becoming a weapon in legal fights similar to one in New Mexico where that state's high court ruled that a commercial wedding photographer could not refuse to take pictures of a same-sex wedding.

“We're not trying to go out and pick a fight,” Montenegro said. He said nothing in the legislation would bar a pastor, minister, rabbi or other religious leader from voluntarily presiding over a same-sex marriage, though under current Arizona law it would not be recognized by the state.

Montenegro conceded that the entire effort could prove meaningless even if he gets it approved by the Legislature and signed by Gov. Jan Brewer: A court could still rule the measure unconstitutional. But Montenegro said he still thinks the effort is worthwhile.

“As representatives of the people here in Arizona, we want to make sure we're doing our part to protect the religious freedoms of pastors, ministers, and the churches,” he said.

I commend Rep. Montenegro for trying to keep his measure as narrow as possible. The New Mexico wedding photographer case he cites is an example of an individual claiming an overly broad definition of "religious liberty" to essentially assert a license to discriminate against members of the public. This is a slippery slope which can easily be abused to discriminate on the basis of race, national origin, sex and religion simply by invoking the "magic words" that it is "my sincerely held religious beliefs." If this wedding photographer had refused services to African-Americans or Jews, or to Arab-Americans and Muslims instead of "the gays," he would have been rightly condemned as a bigot. A "get out of jail free card" for compliance with laws based upon the mere assertion of "sincerely held religious beliefs" leads to anarchy.

This is essentially the same overly broad definition of "religious liberty" being claimed by Hobby Lobby in the "ObamaCare" contraception mandate case before the U.S. Supreme Court, with the added claim that 'corporations are people" possessing corporate religious liberty, which apparently supercedes the individual religious liberty of its employees. Rep. Montenegro would be wise to withhold his bill until after the U.S. Supreme Court rules in the Hobby Lobby case (probably in June), and hopefully clarifies these issues (or not).

Arizona's constitutional ban on same-sex marriage will be negated by a U.S. Supreme Court decision striking down such bans in the near future as violative of equal protection and due process of law under the 14th Amendment, and violative of the full faith and credit clause, Article IV, Section 1 of the U.S. Constitution, requiring "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." It is only a matter of time.

But this does not mean that members of the clergy will be required to solemnize marriages of same-sex couples inconsistent with the tenants of their religious faith. The Constitution's free exercise clause prohibits the government from mandating this. It is an irrational fear. Rep. Montenegro should not be fear mongering on this non-existent problem. This bill is an entirely unnecessary waste of time.