Friday, July 3, 2015

WHAT A CONUNDRUM!

We live in a morally ambiguous way. In no way can a bishop, priest or deacon witness or bless the civil union of anyone who is not free to marry in the Catholic Church. In other words, just because I am currently a legal agent of the state of Georgia to witness marriages for the state, I can't do it for anyone I know who is gay and simply wants me to do the civil part of it, knowing that it isn't a sacrament, just a legality allowing them the civil benefits of jobs, of the state and of the nation.

I can only witness marriages that are sanctioned by the Church and recognized by her. Can the state force me to witness marriages as a legal agent of the state? I don't know. I don't think so yet. I would not do it even if forced and my poor old bishop would have to be sued.

But what about businesses, public business, walk off the street and  into your place of business type of businesses? Can the state make you wait on or sell to or take photos of or bake cakes for gay people and their civil marriages?

I think so! Yes and here is my conundrum, I think the state should protect people from being discriminated in this regard from public businesses, even privately owned ones.

If I am a photographer and advertise my business to the public (I am not talking about a hobby that I do for those who know I am a good photographer and want to pay me an honorarium for taking on their wedding), I think I am obligated to wait on my customers unless they are making a scene of some kind, like no shirts, no shoes, no business.

If I am in business and I don't want to do a particular wedding myself, I find someone who will or subcontract it out. It is as simple as that. The same for the cake baking.

If I work for the state as a civil magistrate and I do all kinds of weddings of people who are free to marry and others questionable, can I exclude gay couples now? I don't think so. One would have to quit if one has moral qualms. 

But does a cake baker have to write anything on their cakes? If I don't want to use same sex plastic couples on top of my wedding cakes do I have to provide these? I don't think so, but who knows, I'm not a civil lawyer.

If people are so indignant about same sex marriage in that they won't do business with them in any fashion and in an open to the public business, should they not be consistent in their righteousness?

For example:

Should disconnect their cable television and internet both providers of the filth that has made our nation sexually amoral?

Should stop doing business with those who do cater to those who are considered immoral and support planned parenthood?

Should stop paying taxes that are used for immoral purposes by the government and be willing to go to prison for it?

Should stay off the highways because there are those who break the speeding laws (about 99%) of humanity.

Should not frequent places of business that serve gays?

You see where I am going. What a conundrum!

32 comments:

Father Kevin Estabrook said...

Just because I'm licensed to drive, doesn't mean the state can force me to drive...

Anonymous said...

If selling a cake for a gay wedding makes you a participant in the ceremony or means you "approve" of the ceremony, does selling a gun make you a participant in the murder or that you approve of the murder?

Fr. Allan J. McDonald said...

Legally or morally? I think if I sell a gun and the buyer tells me he's going to go to the nearest public building and shoot everyone there, I think I can be prosecuted.

If I don't know what he's going to do with it, then no.

rcg said...

I think the licensing of an individual for any purpose by the government implies and can require the person or entity (business) to operate according to the laws of that government. Normally people were only restricted from doing specific things and could do everything else under that governance. So you can't sell ice cream that contains certain levels of bacteria. Perhaps they can outlaw certain flavors. Now they can force you to sell certain flavors.

DJR said...

"Same sex marriage" is now a constitutional right (with polygamous marriage and incestuous marriage also now on the table), and "gay" people are now a protected class, so it is not possible to deny public accommodations to, or refuse business to, "gay" people seeking services from businesses that cater to others.

You cannot deny service to "gays," based solely on their sexual orientation, any more than you can deny it to African Americans.

There are several ways to get around baking cakes for "gay" weddings, but that won't necessarily stop lawsuits. Even a meritless lawsuit could potentially put a proprietor out of business. And I'm not sure that, what it takes to get around baking such cakes, would be palatable to any bakers anyway, as such procedures could affect business with other customers.

The Catholic Church is in the crosshairs regarding its peripheral institutions: hospitals, orphanages, schools, et cetera.

A particular difficulty would arise if, say, a parish rents out a parish hall to groups outside the parish or non-Catholic groups. It will not be legal to deny renting a hall for a "gay" wedding reception if the hall is routinely rented out for "non-gay" wedding receptions.

Ditto for school accommodations.

George said...

Anonymous:

"If selling a cake for a gay wedding makes you a participant in the ceremony or means you "approve" of the ceremony, does selling a gun make you a participant in the murder or that you approve of the murder?"

That is a false analogy.

For the cake:
It comes down to an issue of religious freedom. A person could be seen ( in their mind) as giving tacit approval to same-sex marriage.
If the state forces a person to do this, then it prevents that person from denying the cake on the basis of their personal religious conviction. We are not talking about denying on the basis of a person's skin color, which is an inherent physical characteristic, but rather on the basis of a moral / religious belief position. It is not a zero sum transaction. One either has right of refusal or not.
As for the gun, it is in itself just a physical implement which could be used to murder someone or, on the other hand, in self defense. If someone bought a knife at Walmart and then used it to take someone's life, could that corporation be sued as being culpable? No.
It is true that a gun is an instrument whose purposeful design is to inflict physical damage(unlike the knife). With Father McDonald's example, a gun seller could deny a person from purchasing a weapon if he or she so chose. A cake baker should have the sane right of refusal( for a different yet to me, just as valid reason).

Anonymous said...

With respect, I'm not sure any of the current posters on this thread has sufficient legal background to offer informed conjecture. Given that the Supreme Court has been so obviously outcome-driven in the past week or so, I can easily put together an argument from existing law that could serve as justification for five people on the Court to attempt to force the Church to conduct same-sex weddings in spite of any claimed Free Exercise protections. Will the Court do this? I don't know (but I think any statements to the effect that the Court can't are wrong and any statements to the effect that the Court won't are presumptuous or at least premature). If the Court will do it, when? Again, I don't know, but I expect to see litigants begin trying to force the judicial system to do so quite soon (as in months, possibly weeks or even days); I would guess that the Supremes would delay at least a few years before taking them up on the attempts.

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1301&context=wmjowl

http://law.emory.edu/elj/content/volume-63/issue-4/comments/licensing-religious-officials-in-age-of-same-sex-marriage.html

http://ilj.avemarialaw.edu/Content/iljarticles/Christensen_Article_Final.pdf

If anyone wants to do some background reading, the materials below are a start (and only a start).

Heart of Atlanta Motel, Inc. v. United States

Employment Division v. Smith

http://scholarship.law.edu/cgi/viewcontent.cgi?article=1646&context=lawreview (showing thatthe priest-penitent privilege is merely statutory and thus could be easily revoked)

Paul said...

Here's something the permissives might understand: word redefinition.

If the cake is a "form of expression" (sentiment or artistic) then the cake is a form of speech. Can the government compel one to "speak" as the government demands? Constitutionally, can the government force me to denounce Catholicism? What if the "couple" demands that "We're married Catholics! Nyah, nyah!" be written on the cake?

Much worse might be demanded, if for no other reasons, just to mock Catholics and morals. (Don't think it won't come to that)

Can Catholicism be considered a form of protected speech or artistic expression?

What a mixed up world.

Anonymous 2 said...

I agree with Anonymous at 11:43 a.m. that none of us has sufficient background in the relevant law to express a truly informed opinion about these matters. That includes me. Even though I teach law, I do not teach constitutional law. At some point I may seek to become fully informed in the relevant case law but right now I don’t have time. This said, I would be truly dumbfounded it the Supreme Court ever forces churches, synagogues, mosques, etc. to perform same sex marriages.

As I have said before, the detailed implications – and more importantly, the limits – of last week’s Supreme Court decision will be worked out in the courts, in which all the relevant issues and arguments will be thoroughly aired. In the meantime, constitutional law scholars (and not us) may express informed opinions about how those cases will or should be decided.


Anonymous said...

So, knowing the gun is being purchased for the purpose of committing murder means you can refuse to sell the gun to that buyer.

So, knowing the cake is being purchase for the purpose of being eaten means you can refuse to sell the cake to the . . . um, wait a minute....

Mark Thomas said...

For all practical purposes isn't the homosexual "marriage" ruling and movement a done-deal?

The powerful Culture of Death forces, homosexual and heterosexual, who have concocted the sodomite "marriage" racket are aware that the majority of Catholics in America support homosexual "marriage".

Some 80 percent of Catholics don't assist at Mass regularly. They couldn't care less as to what Holy Mother Church teaches. Among the 20 or so percent of Catholics who assist at Sunday Mass, the majority support homosexual "marriage".

They are led, of course, in many cases by "moderate" bishops who issued weak responses to the same-sex "marriage" decision.

Well...let's be honest...said bishops have all but surrendered in regard to the Cultural War. No wonder Catholics are unable to mount strong opposition to the Culture of Death.

Homosexual "marriage" enjoys strong support among "mainstream" Protestant communities. The majority of Episcopal Church bishops just threw in with the Satanic Culture of Death's same-sex "marriage" forces.

Then there are the tens of millions of "unchurched" Americans. They are devoid of interest in religion...couldn't care less about faith and morals.

Why, then, isn't the SCOTUS' ruling in question not a done-deal?

By the way, none of the above represents pessimism. The above is simple, matter-of-fact reality about America.

We live in an out-of-control, pre-marital sex, birth control, abortion, sodomite "marriage", dirty entertainment society.

Do we not?

The Legion of Decency, Archbishop Fulton J. Sheen Prime Time network TV show, Leave It To Beaver, "yes, Mrs. Cleaver...yes, Miss Landers"...get married (man and woman) then have sex and children, put on a suit and tie each Sunday for church...days are long gone in America.

That is reality.

Mark Thomas

DJR said...

"With respect, I'm not sure any of the current posters on this thread has sufficient legal background to offer informed conjecture."

I'm a practicing attorney and feel competent enough in ConLaw to comment. I worked for the Federal Court for 20 years.

George said...

Anonymous said...

"So, knowing the gun is being purchased for the purpose of committing murder means you can refuse to sell the gun to that buyer."

No. A seller can refuse to sell a gun to someone-they don't even need a reason.
It is their right to sell or not to sell.

Lefebvrian said...

I actually practice before the Supreme Court, am I qualified to comment?

Anonymous 2 said...

Well, it seems that DJR and Lefebvrian may actually be qualified to offer a truly informed opinion on some of the legalities, so perhaps they can tell us how they think the courts would decide the various types of issues that will now be generated. I for one will look forward to reading their analyses, in particular about the limits sourced in the free exercise clause of the First Amendment.


Anonymous said...

The Catechism states: "1867 The catechetical tradition also recalls that there are "sins that cry to heaven": the blood of Abel,139 the sin of the Sodomites,140 the cry of the people oppressed in Egypt,141 the cry of the foreigner, the widow, and the orphan,142 injustice to the wage earner.1"

Therefore, the state cannot deny that those sins are certainly against Catholic belief and teaching but whether the courts will hold up freedom of religion is doubtful from all the evidence we have so far.

The time to press back is now - Christian institutions need to take this battle on and fight it as much as they can otherwise the state will start to insist that the Church "marry" homosexuals or perform abortions, etc, which is already happening as regards Obamacare I believe although I'm not too up on that.

As regards a cake for a homosexual - if it were a birthday cake or some other celebratory thing then of course a baker could go ahead and bake it. But if it were a cake for a homosexual "union" then, no, because that could be seen as giving approval to the gay "marriage".

What gay "marriage" is really all is about is forcing people to accept sodomite and lesbian relationships as normal. Apart from any religious objection, homosexual and lesbian relationships we know are against nature and procreation. They cannot create life between them. It is a physical impossibility. It takes the genes of one man and one woman to do that, so that is something they simply cannot control or legislate for. Their genes can never ever unite to create anything.

If the state does interfere and insist that a person do something that they don't want to do on religious grounds or for other reasons, then the state is moving towards totalitarianism. We won't be far off a time when the state can insist that people use birth control, where the state can insist on a one child family and the state can insist on the abortion of a child that would be abnormal in some way and to insist on euthanasia for the handicapped and the elderly. There are wide ramifications that the ordinary person in the street just hasn't considered - and nor for that matter have homosexuals and lesbians. Now that they have opened Pandora's box what happened in Germany can certainly happen in America because they are undermining their own rights as well.

Jan

George said...

Jan
"But if it were a cake for a homosexual "union" then, no, because that could be seen as giving approval to the gay marriage."

There are those who would reply that baking and decorating a cake for a "homosexual marriage" does not confer or imply approval. It is the person baking and decorating the cake however, who is operating from the position of religious conviction. Freedom of religion trumps someones "right" to purchase a cake or anything else. One can envision a scenario where a person is asked to bake a cake for a strip club party or for an establishment which sells sexual paraphernalia of which the establishment in question is characterized as "adults only". The bakery owner or self-employed individual could choose to sell but should have "right to refusal" if they are asked to decorate the cake or bake good(s) with something that violates their religious beliefs. This to me is not only a religious freedom issue but a free speech issue as well.

Anonymous said...

When baking and selling a cake is an expression of "religious conviction," then one has to wonder who the deities of this religion might be. Flour and eggs? Butter and sugar? Is vanilla a demi-god? Is baking powder?

If a bakery decides that, based on "religious conviction," he won't sell to a mixed race couple, a Catholic couple, a Mormon couple, or some other couple of which his religion disapproves, is there any recourse?

George said...

Anonymous

The key word I used was "decorate". It doesn't even have to be a cake. It doesn't even have to be from religious conviction. An African-American baker should be able to invoke "right of refusal" if a customer asks for a KKK decorative figure or a Confederate flag on a cake or some baked good. The customer can go elsewhere or find
a neighbor to bake and decorate the cake.
If the someone is asked to put something immoral or which goes against the person's belief on a cake or whatever. by refusing to do so, the person is invoking his or her right to religious expression.

Anonymous said...

Where is this "right" of refusal found? If there is such a "right" may an innkeeper invoke said "right" to refuse to rent a room for the night to a black couple or an interracial couple? May a florist refuse to sell arrangements to a Catholic Church because said Church is, in the florist's religious beliefs, the "Whore of Babylon"?

Title II of the Civil Rights Act of 1964 "outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without defining the term "private"."

A provider of "public accommodations" [generally defined as entities, both public and private, that are used by the public. Examples include retail stores, rental establishments and service establishments, as well as educational institutions, recreational facilities and service centers. Private clubs and religious institutions were exempt.] is not free to discriminate according to his/her religious beliefs.

Anonymous 2 said...

Anonymous at 1:07 p.m. has raised the critical point of line drawing. This is as much a problem for free exercise as it is for recognition of marriages, probably more so. It is one thing for a religious institution to refuse to do certain things. It is quite another for a private individual who is in the marketplace. Constitutional law may not be my area of legal expertise but even I can see that if you allow the cake maker not to bake a cake, then the same must presumably be true of the limo owner or the printer or the caterer or the photographer and on and on. And as Anonymous points out, certainly no weddings of the anti-Christ Whore of Babylon (that’s us, folks)! This is all the more reason why respectful dialogue among members of the political community must continue outside of the courts as well as inside them.


George said...

Title II of the Civil Rights Act of 1964 "outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce

The person(baker) I am talking about IS NOT engaged in interstate commerce. Nor is the person discriminating on the basis of race color, religion or national origin. If you refuse to to sell something to a Catholic, that could be covered under the religious scope of the Civil Rights Act. Are you claiming that a person has a right to have a KKK or a pornographic figurine on a cake? The state of Texas can now, because of a Supreme Court ruling, refuse to sell someone a license plate with a Confederate flag. If a state has that right, why not an individual? People do have a right to accommodation- to go into an establishment to eat when they are hungry, to purchase necessities, to procure lodging or use the restroom facilities.

Anonymous 2 said...

George:

You raise some excellent points, George, which just underscore why I prefer to defer to those professing expertise in constitutional law (and I should add civil rights law). This said, we all know what creative lawyering can do. For example, without professing anything, I would raise the question: “What if the gay couple is Episcopalian and the Catholic vendor refuses is to cater to their Episcopalian wedding because of his or her religious convictions”? And this is a question, I assume, under the Civil Rights Act (assuming that the issue of affecting interstate commerce is not so clear), without even getting into issues of equal protection and the nature of state action. Perhaps we should let DJR and Lefebvrian weigh in on these issues.

George said...

Anonymous2

While what I call the "right of refusal" is limited by statutory law, I see no reason why the courts can't allow a reasonable accommodation in certain specific instances so that an individual is not forced to do something which violates their conscience when it come to their religious or moral convictions. Would it be OK for a Mom and Pop bakery to sell a cake sans any message or decoration which would be objectionable from the standpoint of their religious convictions? Is it enough ( and would it be so to the court) that there is a reasonably proximate alternative vendor available to the purchaser? If there were not, then I could see where the vendor might be compelled in that case to satisfy the customer, at least with a generically messaged cake.
Going to another issue, even though a person has a constitutional right to own a gun (if there is nothing in their background which prevents them from doing so), it doesn't follow ( to me) that a business must sell a firearm to someone if the owner chooses not to. Some of what we are seeing is just part and parcel of our litigious society.
I've gone to a business to purchase something and after being informed that they were out of the item I wished to purchase, I just went somewhere else an bought it. No problem. I was not being discriminated against in that instance, but I did exercise my freedom to go to an alternative vendor .
What I would like to see is some reasonable accommodation. That is my hope and expectation although in the end it's the court's opinion and not mine that will count.

rcg said...

Interstate commerce can be construed as having used a method of interstate commerce for the act. This could be the Internet or even driving on a federal highway, or purchasing items that were shipped across state lines.

George said...

rcg

The examples I gave were referring to a business locally owned and operated by one self employed person with say, maybe one or two employees. I could see where the court could find in favor of a plaintiff if a baker used an ingredient, say sugar, that was produced by a company or corporation that was engaged in Interstate commerce. To me that would be judicial overreach, but it is not beyond the realm of possibility.

rcg said...

George, Federal courts prosecute on those points every day. The premise is the Commerce Clause of the Constitution. If the baker has used the Internet to conduct business, or more to the point perhaps, deny the right of homosexuals to marry, he is in Federal jurisdiction.

George said...

My focus has to do with small,local self employed individuals,including part time. Some that use the Internet may cease doing so in order that it cannot be used against them in a court decision. Small independent operators are only desiring to secure what they believe is their guaranteed right of freedom not to violate their conscience. I'm not talking about anyone denying persons the right to marry. If the state of Texas can deny someone a license plate with the Confederate flag, I would think a self employed small business person should have that right. It is my view that there should be some reasonable accommodation which will protect a person not having to engage in some action which will go against that person's religious conviction. I'm not optimistic on this given the way court decisions have come down, but that is my hope.

rcg said...

The use of nearly any communication utility is used to exert Federal authority, phones, and certainly snail mail and as I said, even using Federal highways.

George said...


One of the aspects to be considered of what we have been commenting about here is the closeness, the self -identification of the small independent business owner operator to his or her means of livelihood. It is different than if a person is employed by a large corporation such as WalMart or Home Depot,where it is understood that you are just one employee among many with not much say as to corporate policy.
Should the owner of a small plane who makes living by towing an advertising banner be forced to display "I support polygamy" or I support same-sex marriage" when these run counter to the person's personal beliefs? To me, the person should be able to refuse this kind of request, in no small part because there exists the attendent and naturally perceived connection between the plane and the owner. A Catholic who self-owned his or her own pharmacy would be in a different position as far as dispensing abortifacients versus one who worked for a national chain although in the latter case I would like to see so accommodation to religious conviction made, if at all possible.

Anonymous said...

This is a false question. What if I tried to hustle the question, "Does a cake baker need to accept an order celebrating abortion"? Whatever the answer to that is, it diverts attention from the REAL question of, "should abortion be legal"? (and what am I doing about it?)

Similarly, the REAL question about same sex marriage - are the children procured for these "couplings" not being exploited like a master exploits his slaves? This right of the child to be parented either by his procreators, or those who can "stand in" for his procreators (male and female) is being ignored in favor of the silly cake-baking question. Yes, I KNOW that is because the latter is what is being litigated now, but my point is the reason these cases are being brought is to distract from the REAL issue!

George said...

Are we not to be allowed to act on our religious/moral convictions in the public square, other than in the most minimal way? The courts have used an overly expansive reading of the Commerce Clause as a legal pretext too find that under the Civil Rights law or the 14th Amendment, for instance, that someone's rights have been violated because the person or persons could not purchase a baked item to their liking or were unable to engage a particular caterer to do their bidding. We are not asking for the return of the 'blue laws" after all. Is it that we can only exercise our religious and moral principles within the walls of a church or ecclesial building or within the confines of our homes? It will be intersting from this point forward to follow cases involving those of the Muslim faith.