Texas' Attorney general, as we all know know has denounced the Supreme Court's ruling on Friday Legalizing Gay marriage and has issues a rather confusing "legal" opinion tellingclerks in the state that if they have a "religious" objection to issuing a marriage license to a same sex couple, they can refuse to do so (even though, as he acknowledges, that refusal violates state law and will likely result in them being successfully sued by the refusee.
And frankly, people of Faith, even those that consider Homosexuality a grave sin should be FURIOUS at the AG's assault on religion.
Why?
Well, in this opinion he cites the TX constitution and the US constitution's guarantees of "Free exercise of religion" to say, seemingly that a an agent of the state is free to violate state law if the action they are required to take violates their own religious beliefs. Which immediately leads to a question: Would he take the same stance if a clerk invoked a similar "religious objection" to say, interracial marriage?
It's is not a hypothetical question. The trial judge who criminally convicted the Lovings for their interracial marriage , giving rise to the landmark Loving v. Virginia decisions, state precisely such a "religious objection" to interracial marriage from his bench
"
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."
To Answer that the AG would note that his opinion explicitly notes that clerks are prohibited from discriminating " on the basis of race, religion, or national origin" But in answering it , it raises a more troubling question: Why is one religious belief respected while the the other ignored? Are some sincerely held religious belief more equal than others?
and as Hamlet said: "there's the rub":
Rather quickly you can see the rabbit hole we have headed down. As my wise old First Amendment professor Sheldon Nahmod used to say "The establishment clause of the First Amendment was intended to not merely protect the state from the influences of religion, but equally to protect religion from the corrupting influences of the state.
Once the state gets into the business of providing exceptions to law based on "sincerely held religious beliefs", you are, by definition, making the state the arbiter of which beliefs are "sincere" and earn a legal exemption, and which are not, and therefore can be safely overridden.
Worse yet, it would seem that this decision is primarily made by referencing how much the belief in question conflicts with civil law. For example, discriminating against gays based on your beliefs seems to be okay because they are not, in Texas anyway, a legally defined "protected class". On the other hand discriminating on the basis of race or religion, is NOT okay because we have passed explicit anti-discrimination laws in those cases, so your religious beliefs about blacks or Catholics, say are to be discounted.
Can you imagine anything, short of Establishing a national and mandatory "Church of American Jesus" that does more violence to the intent and plain words Of the establishment Clause?
It may be time for Liberals to acknowledge a hard truth. Rehnquist was right all along, and the Smith case's holding was correct:
" the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
At the time, most liberal, myself included thought this was a HORRIBLE decision, inasmuch as it let a state fire a Native American for his ceremonial use of Peyote. It seemed unfair and intolerant and most of us whole-heartedly endorsed the original federal Religious Freedom Restoration Act, that the Supreme Court largely again struck down in
City of Borne v. Flores
At the time it seemed like the Supreme Court was being petulant, but I think it is now time to acknowledge that they were actually being far-sighted, and they understood the very slippery slope that you embark on when you start making "religious" exemptions to civil law.
And for people of faith that really do sincerely have a problem with issuing these license, particularly the Christian ones, they can be reminded that the founder of their faith is one of the very first folks who is recorded as endorsing the concept that Church and State are, and should be separate entities.
In answer to a question about whether devout Jews should violate their "sincerely held religious beliefes"" against graven images by paying taxes with roman coin stamped with the likeness of the Roman emperor. Jesus basically told his followers to get over it and " "Render under Caesar what is Caesar's and unto God what is God".
So any of those nice Texas clerks who are offended at having to issue marriage licenses for the Groom and groom or Bride and Bride can tke comfort in knowing that their lord and savoir, where he there, would smile sweetly and tell them to STFU and Get back to work rendering.