28 February 2011

25 February 2011

Is Seeing Agreeing?

This morning I received a very interesting comment from someone called "Max Drax" to my previous post about Dallin Oaks' "example" of the New Mexico photographer who violated NM state non-discrimination laws by refusing based on religious objections to photograph a same-sex wedding. I thought the comment was thought-provoking enough that it deserved prominent placement and its own post for discussion, rather than burying it in a week-old comment string.

Max Drax thinks the New Mexico courts were wrong to draw the distinctions they did, and that it was wrong for the law to "force" the photographer "to witness and memorialize something that he fundamentally disagrees with." Apparently, to Max Drax, being forced to "witness and memorialize" something that one "fundamentally disagrees with" is enough to encroach on religious freedom.

I think Max Drax presents a viewpoint that many people hold, one which suggests a view of fundamental rights and liberties profoundly different than that held by many others, including, apparently, New Mexico judges. This time, rather than leading out myself, I'm going to invite readers to comment, and I may chime in at some point later. So here's Max Drax's full comment. Readers, I invite you to respond, and Max Drax, you too.

Now wait...as all good lawyers understand, just because a judge wrote it doesn't make it true (as judges are usually just mediocre lawyers).

The judge says that the photographer's religious views aren't compromised by having to photograph a lesbian wedding. That's nonsense. The photographer cannot photograph the wedding without attending and witnessing the wedding. And in photographing the wedding, she is memorializing the ceremony. Attending, witnessing, and memorializing an event will, in most cases, be seen by most people as supporting that event, and if a photographer is forced to support an event that she disagrees with on religious grounds, by sheer virtue of the fact that she decided to become a photographer, then her religious beliefs have most definitely been compromised.

Let's look at it another way. Say a group of young men want to torture and slaughter a pig. These fellas call up a local photographer, who also happens to belong to PETA, and ask him to take pictures that everyone will keep in order to remember the event.

You're going to say that the photographer's moral beliefs aren't being compromised by forcing her to take such pictures? Sure, he can still hold to her moral beliefs. His internal opinions about animal welfare aren't harmed. But he's still being forced to witness and memorialize something that he fundamentally disagrees with.

At a certain point, you have to ask whether the right to hold a belief gives you any rights at all to make any outward manifestation of that belief. If it doesn't, then the right to hold the belief isn't really a right to anything of worth. After all, it's not like the mind can be coerced anyway. The logical implication of the judge's statements is that the right to religious freedom is simply a right to think certain ways, without ever necessarily manifesting those beliefs in public. But that places no limit whatsoever on the government, because the government can't touch anyone's mind to begin with.

For heaven's sake, any good lawyer would have a field day with that judge's statements. Don't treat them as gospel.

21 February 2011

Oaks Rebutted, Summing Up

A few weeks ago Dallin Oaks, LDS apostle, spoke at Chapman University about the alleged encroaching restrictions on freedom of religious expression in the United States. As one would expect from any lawyer, he gave what he claimed were examples of his theme, in this case, how various individuals or organizations had lost jobs, promotions, business opportunities, scholastic standing, and even had legal penalties imposed on them as a result of saying or acting on a religiously based belief that homosexuality, or gay behavior, was wrong.

Well, I’m a lawyer too. I dig up and look at details and consider their implications, individually and collectively. And that’s what Oaks—or his research staff, at least—should have done before this speech. Oaks’ claims didn’t pass the smell test for me, so I started doing just what I’d been taught to do. Something I actually saw him do once, when I met him doing research at the BYU library and we spoke briefly about our respective projects.

And guess what, Elder Oaks. The truth of your examples is quite different from the picture you seek to paint. So as a graduate of the law school you helped to found, I’m going to give you the benefit of the training your colleagues gave me.

You’ve claimed elsewhere that because freedom of religion is at the front of the list of 1st Amendment rights, it is therefore more important and should trump the others in case of any conflict. It’s perhaps not surprising that you’d take this approach as an LDS apostle. But the Constitution of the United States is not a religious text. It’s a legal document, the result of hard-fought politicking and negotiation. And you know, Professor Oaks, the basic rules of legal interpretation.

A law must be interpreted to give effect to the actual words on the page and to avoid any absurd result. Nothing in the words of the 1st Amendment establishes any prioritization amongst the various rights listed there. The idea that religious belief must trump any of the other 1st Amendment rights just because it happens to appear first in a list--well that's just fiction. It has no basis whatsoever in the Constitution. If the context (e.g. paragraphing or actual language) does not so indicate, then it's absurd to think that just because something comes first in a statutory list, it's therefore more important than the things which follow. There are easy ways to show such intent, of course. But if no such intent is shown, you can't blithely assume priority just from the order of recitation. And there is no showing of any such intent in the Constitution.

You’ve sought to paint a picture of freedom of religious expression as under increasing attack in the United States. But thanks to the skills your law school taught me, I’ve seen for myself that your stories don’t mean what you claim. Once the details are investigated, it becomes clear that in every single instance, every one of your “examples,” something else was going on—something else that makes all the difference. Something else that shows those examples do not mean what you said. Yet you lined them all up, omitting these crucial details, as alleged examples of something that just isn’t so. My posts over the last week have shown in detail how this is true.

When you were president of BYU, you gave a talk about honesty, in which you said this:

An individual who conceals and misrepresents, however small the matter, sows the seeds of his own corruption. . . A lie is not always told in so many words. It may be a creature of concealment or a misrepresentation by action or a half-truth.

Of course, everyone falls short of perfection. And I try to be as tolerant of others’ foibles as I hope they’ll be of mine. But when a man purporting to be a “prophet, seer and revelator” and an experienced jurist goes out of his way to speak publicly about such a potentially momentous topic, and he chooses over and over to say things which investigation shows to be "half-truth" at best, that’s something entirely different. That's not just human foible. That's something deliberate.

So with all due respect, I’m calling you on it, Professor/Elder/Judge Oaks. By your own description, you’ve lied. And you need to fess up, retract, clarify, tell the whole story. And you need to apologize to those whose trust you have abused and forfeited.

19 February 2011

Oaks Rebutted, Chapter Seven

Today we look at “the Boy Scouts’ challenges in various locations” with . . . well, with something Oaks never really specifies, but apparently it has something to do with alleged restrictions on religious freedom.

Oaks: The Catholic Church's difficulties with adoption services and the Boy Scouts' challenges in various locations are too well known to require further comment.

Problem is, the Boy Scouts of American (BSA) is not a religious organization. True, they affirm faith in God in the Scout Oath, which I can still recite: “On my honor, I will do my best to do my duty to God and my country, to obey the Scout law, to help other people at all times, to keep myself physically strong, mentally awake, and morally straight.” And yes, I did type that from memory.

But beyond that affirmation, the BSA is not specific as to any particular religious belief. I remember looking in my Scout manual at pictures of the different medals awarded by various religious organizations for Scouting participation; in addition to the LDS Duty to God award, there were similar ones from the Catholics, Episcopalians, Lutherans, Unitarians, and even the Buddhists. Obviously the Boy Scouts don’t care what particular religion their participants follow, as long as they have some kind of faith in whatever God they choose.

So Oaks’ remark about “challenges” the BSA may have had in a “religious freedom” context is puzzling. In numerous cases which have gone as high as the United States Supreme Court, the BSA's freedom of association as a private organization has been repeatedly recognized and upheld by federal and state courts alike. The case which reached the Supreme Court, Boy Scouts of America v. Dale, confirmed that since they are a private organization, the Boy Scouts can set their own standards for participation. While those standards have been challenged in various cases, so far no court has found that they constitute illegal discrimination. Does Oaks suggest that an organization with the size and influence of the BSA should expect to be free of litigation and controversy? That’s unrealistic at best.

Research suggests that the alleged “challenges” which might have actual legal legitimacy arise from the BSA's active exclusion of homosexuals and atheists while at the same time retaining sometimes preferential arrangements for use of public lands and facilities that are subject to non-discrimination laws. Wikipedia has a good summary of these cases. In many cases the BSA has sought to do the same thing as the New Mexico photographer and the Ocean Grove Camp Meeting Association previously discussed in this series: try to use private religious or ethical opinions as a trump card to escape compliance with non-discrimination laws that apply to everybody else.

Oaks makes an oblique reference to the BSA's “challenges” as if they were a well-known and uniform string of lost battles to preserve religiously-based freedom of association. In fact they are anything but that. The Supreme Court of the United States has upheld the BSA’s right as a private organization to set its own membership standards. Nor is the BSA without success in its efforts to retain sometimes preferential access to public facilities for Scouting activities and events, including public schools for recruiting purposes, U.S. Army bases for jamborees (at public expense), etc.

It is true that the BSA has lost some court battles in this respect. But they have won many others, including what I suspect they would consider the most important ones. The record shows that Oaks’ reference to the BSA’s allegedly well-known “challenges” can be most charitably described as inviting false conclusions. I would expect far more of a former judge, law school professor, and senior authority of a church which regularly quizzes its active members on whether they are “honest in their dealings.”

Tomorrow, a wrap-up.

18 February 2011

Oaks Rebutted, Chapter Six

Today we look at “the Catholic Church’s difficulties with adoption services” which Dallin Oaks holds out as yet another example of alleged restrictions on the free exercise of religion.

Oaks: The Catholic Church's difficulties with adoption services and the Boy Scouts' challenges in various locations are too well known to require further comment.

Real story:

The Catholic Church’s “difficulties with adoption services” are, as noted years ago by BYU law professor Morris Thurston, “another misrepresentation.” Oaks no doubt refers to the case, much-publicized and much-distorted during the Prop 8 campaign, of Catholic Charities in Massachusetts which allegedly “closed its doors” rather than place children for adoption by same-sex married couples. And, as with all his other cited examples, the real story is quite different.

Catholic Charities in Boston had contracts with the Commonwealth of Massachusetts to provide adoption services and accepted public funding for those services. In effect, it acted as an agent of the Commonwealth of Massachusetts, a governmental entity.

After Massachusetts implemented marriage equality, Catholic Charities of Boston's board of directors voted unanimously to continue providing adoption services to same-sex couples. However, four Roman Catholic bishops intervened and sought to stop it from doing so. They also sought an exemption for Catholic Charities from Massachusetts’ nondiscrimination laws. Eight members of Catholic Charities Boston’s board resigned in frustrated protest over this edict from above, which reputedly had support from the Vatican itself. It was also reported that they feared losing support from The United Way of Massachusetts Bay, the largest donor to Catholic Charities in Boston, if it were forced to follow the Vatican’s position.

While Oaks and others seek to frame this in terms of "the state oppressing religious freedom,” it’s really not. The conflict was between the Vatican and Catholic Charities in Boston, not between Catholic Charities and the law. If the Vatican had not intervened and forced a Hobson’s Choice on Catholic Charities in Boston, it would have continued providing adoption services. It was the Vatican, not the Commonwealth of Massachusetts or its laws, which forced the issue and tried to stop Catholic Charities in Boston from providing adoption services.

As noted by columnist Brian Cavner, “This is not the case of a church simply asking to be left alone in its policies, but rather an agent of the state seeking to break the law. Because, according to tax reports, Catholic Charities received $1 million of state funds to provide adoption services, its actions are subject to state scrutiny in ways that churches typically are not. The state is not paying the charity to espouse its religious beliefs, but to offer adoption services consistent with its laws. Any organization accepting taxpayer money with the mistaken assumption that it can later deny services to those same taxpayers is immediately suspect.”

So once again, Dallin Oaks perpetuates a myth in a way that I'm sure he never would have tolerated from his law students or law clerks.

Tomorrow, we’ll look at the Boy Scouts’ alleged “challenges in various locations.” Any suspicions on what we'll find?

17 February 2011

Oaks Rebutted, Chapter Five

Good morning all. Today I will tell you the story of The Valiant Little Pastor who spoke God's word and was persecuted for it.

Well, actually, it didn't quite happen that way. First the Oaks version, then the truth.

Oaks: A Los Angeles policeman claimed he was demoted after he spoke against the wrongfulness of homosexual conduct in the church where he is a lay pastor.

Oaks’ source for this statement in February 2011 is a single news article dated 31 July 2008 in the Washington Times, a newspaper known for its far-right conservatism.

Sergeant Eric Holyfield of the Los Angeles Police Department (LAPD) is also pastor of the Gospel Word of Life Apostolic Church. In September 2006 while serving as a “senior lead officer” of the LAPD’s community relations bureau, he gave a eulogy at the Whittier, Calif., funeral of LAPD Officer Nathaniel Warthon Jr.. Sergeant Holyfield had been Officer Warthon’s supervisor. He was not on duty as a policeman at the time, was dressed in clerical garb, and gave the eulogy at a private chapel at the invitation of Officer Warthon’s family. However, he also introduced himself as “Sergeant Eric Holyfield.” A number of senior LAPD officers attended the funeral. It wasn't held at Holyfield's own church, as Oaks claims.

During the eulogy, Sergeant Holyfield quoted a passage from 1st Corinthians that says “the unrighteous shall not inherit the kingdom of God” before going on to list such and talk in detail about the specific types of unrighteous people referenced: adulterers, homosexuals, thieves, drunkards and others, and to discuss their ostensible eternal prospects, e.g. men should not lie with men, women should not lie with women, doing so was sinful and anyone who did must repent or be condemned to hell’s “lake of fire,” etc.

According to his Complaint filed with the Los Angeles Superior Court, Sgt. Holyfield’s supervisor contacted him shortly thereafter and said “I have received a number of complaints concerning you in regards to the funeral. People are very upset. Police officers, community members, clergy people, and as a result I’m going to have to move you.” Sgt. Holyfield was then transferred from his position, which he repeatedly described as “coveted,” and offered the choice of becoming a detective or a patrol officer.

Sgt. Holyfield filed a lawsuit against the Los Angeles Police Department on June 19 2008, nearly two years after the funeral. He alleged anti-Christian discrimination, violation of his First Amendment free speech rights, and retaliation for expressing his religious views in what he characterized as a private setting with no relation to the workplace. His suit claims the LAPD demoted him and refused him further promotions.

The complaint confirms that Sg. Holyfield and his superiors disagreed over whether the funeral constituted an “extension of the workplace.” His supervisor allegedly told him the problem was the “perception” which Holyfield’s remarks had created, that “this thing is buzzing, it’s all over the department citywide,” and “has gone all the way to the top, it’s like bees to honey, it’s all over.” His supervisor indicated that in the circumstances, the funeral could have been considered an extension of the workplace. Holyfield disagreed.

Holyfield’s complaint goes on to accuse William Bratton, LAPD Chief, and essentially the entire department of systematic anti-religious discrimination and bias, of allowing “discrimination and other forms of prohibited misconduct to take place despite an official policy prohibiting such actions,” and called such conduct “willful, despicable and malicious.”

Holyfield apparently filed a separate administrative action with the LA Department of Fair Employment and Housing, which was closed on 26 June 2007.

On 12 January 2011, the LA City Attorney recommended to the City Council that the city proceed with settlement discussions to resolve Holyfield’s claims.

Oaks was partly truthful in stating that Holyfield “claimed” he was demoted for speaking against homosexual conduct. However, Oaks omits the crucial facts that the statements were made at a funeral for an LAPD officer by a police sergeant/lay pastor who introduced himself as a police sergeant, in the presence of numerous other LAPD officers. He also fails to acknowledge the impact Sgt. Holyfield’s statements had on the LAPD and that the administrative action was taken against him as a result of that effect.

Oaks also fails to acknowledge that the merits of Holyfield’s claim have not yet been decided. Having read Holyfield’s complaint, I believe he damages his own credibility by accusing the entire LAPD, from its chief on down, of systematic and intentional discrimination, misconduct, and cover-ups. This is the borderline paranoid language of someone with a hypersensitive propensity to accuse first and check facts later.

In light of the above, and the fact that no court has yet found Holyfield’s “claims” to be true, Oaks would have been wise to ignore Sgt. Holyfield’s case in his speech. It is hardly a credible example of any alleged nationwide growth of infringement on religious freedoms.

Tomorrow we turn to the Catholic Church's and the Boy Scout's issues in this area which, according to Oaks, are "too well known to require further comment." Are they really? We'll see.

16 February 2011

Oaks Rebutted, Chapter Four

Today we turn to the stories of two counselors who allegedly suffered professionally for their beliefs that homosexual relations were wrong. And once again, things aren’t quite as Oaks paints them.

Oaks: Candidates for masters' degrees in counseling in Georgia and Michigan universities were penalized or dismissed from programs for their religious views about the wrongfulness of homosexual relations.

In the Michigan case, Julea Ward, a graduate student, refused to counsel a homosexual student as part of the required practicum in her Eastern Michigan University's graduate program for becoming a high school counselor, because doing so would allegedly "validate" homosexual conduct which she believed was immoral and prohibited by the Bible. She asserted a First Amendment right to speak or decline to speak as she wished, and that the school's requirement that she counsel a homosexual student would violate that right.

It is settled law that a public university does not force a violation of the First Amendment when requiring students to comply with the terms of an academic assignment. As a former teacher of constitutional law, Oaks knows or should know this. A federal court held that Ms. Ward could not insist upon being excused from training to counsel gay people due to her religious beliefs, and that the school did not violate the 1st Amendment by insisting on a curriculum reflecting the counseling profession’s ethics code concerning non-discrimination in serving clients or requiring students to fulfill curricular requirements.

Oaks tries to paint this case as a penalty for trying to exercise religious freedom. It is not. The federal court's ruling says the following, and Oaks should have known this too, at least in principle:

"Plaintiff [Ms. Ward] has distorted the facts in this case to support her position that [EMU] dismissed her due to her religious beliefs. While [the university] may have been indelicate in their inquiry into Ms. Ward’s beliefs, they never demonstrated a purpose to change her religious beliefs. [The school was] at all times concerned with [her] refusal to counsel an entire class of people whose values she did not share. [The school] acknowledged that [her] beliefs motivated her behaviors, but always made the distinction between the two, and in no way attacked her beliefs. Even [Ms. Ward] is forced to agree that Drs. Callaway and Dugger never told her she needed to change her religious beliefs."

Oaks is therefore simply wrong to claim that Ms. Ward's dismissal from her graduate program represents a restriction of religious freedom. It was instead the predictable consequence of a student's deliberate refusal to fulfill all elements of the graduate program to which she voluntarily sought admission.

Once again, as in all the earlier cases Oaks cites, the federal court granted "summary judgment" for the university and against Ms. Ward. In real person language that means the court said "Ms. Ward, you have no case and there's no reason to take this to trial because the law is absolutely clear." Another reason to say "shame, shame" to Dallin Oaks, the former law school dean. He knows what summary judgment means, and it doesn't mean what he claims in this case.

In the Georgia case, Marcia Walden, a contract counselor with the Centers for Disease Control, referred an employee in a same-sex relationship to another counselor because of Ms. Walden's religious objection to what she believed would be facilitating a same-sex relationship. Although the second counselor was satisfactory, the employee “felt ‘judged and condemned’” and “”that [Ms. Walden]'s communication also indicated disapproval of her relationship.” After investigating the complaint, Ms. Walden was laid off. She sued, alleging (1) a violation of free exercise of religion, (2) a violation of the Religious Freedom Restoration Act, and (3) a violation of Title VII’s prohibition of religious discrimination.

The court found no evidence in the record to suggest that the CDC removed Ms. Walden from the contract because of her religiously based need to refer clients seeking same-sex relationship counseling. Rather, the court found that “the CDC removed [Ms. Walden] from the contract because of the manner in which [she] handled the situation involving [the client], and the CDC’s reasonable concern about how [Ms. Walden] would handle similar situations in the future.”

Thus, said the court, the firing created no substantial burden on Ms. Walden's free exercise of religion. Since the CDC’s decision was “not based upon [Ms. Walden]'s religiously based refusal to provide same-sex relationship counseling” but on “the manner in which [she] handled the situation," there was no violation of the Religious Freedom Restoration Act or Title VII. In addition, the CDC offered Ms. Walden employment reassignment services which was a reasonable accommodation of any religious objection she may have had.

In the Walden case too, the federal court issued summary judgment for the CDC and against Ms. Walden. "You've got no case, ma'am." This means that in every single case Oaks cites so far, each court has considered the claims of "infringement of religious freedom" (also made by Oaks) so groundless that they weren't even worth having a trial for.

At this point I should stop to say I'm astonished that Dallin Oaks, the former law school dean and state supreme court justice, has been so sloppy and distortionary with his research. He either does or doesn't know the real facts of these cases. If he does, then he's deliberately misrepresenting their implications in his speech. That's called "lying." If he doesn't, then his research has been inexcusably slipshod in a way I'm sure he would never have allowed for any of his law students or law clerks.

Tomorrow, the story of an L.A. policeman allegedly demoted after speaking against homosexuality in the church where he is a lay pastor. Stay tuned!

15 February 2011

Oaks Rebutted, Chapter Three

All right folks. Back from our Valentine's Day break, today we resume our examination of Dallin Oaks' jeremiad about threats to religious freedom. Next on the list is the sad tale of university faculty disciplined ostensibly for merely saying they thought The Gay was bad.

Oaks: Professors at state universities in Illinois and Wisconsin were fired or disciplined for expressing personal convictions that homosexual behavior is sinful.

Real story:

In the Illinois case, the "professor" was actually an adjunct lecturer who, like all others, was hired on a semester-by-semester basis with no expectation that his employment would continue. A practicing Catholic, he wrote a lengthy e-mail to his students in which he discussed Catholic teachings on how utilitarianism and natural law theory would judge the morality of homosexual acts, and said that "sexual acts are only appropriate for people who are complementary, not the same." Some students protested [note, this wasn't action initiated by the university itself] and complained to the university. In response, the head of the religion department expressed concern that such remarks would "hurt the department," and the associate dean for the UI College of Liberal Arts and Sciences, stated her belief that the e-mail violated " university standards of inclusivity, which would then entitle us to have him discontinue his teaching arrangement with us."

In the Wisconsin case, Tom Hilton, the chairman of the university’s information systems department, received an e-mail from a student organizer of a local gay film festival, seeking support for the festival. He replied, saying "I decry attempts to legitimize [homosexuals'] addictions and compulsions. These, our fellow humans, deserve our best efforts to help them recover their lives. We only hurt them further when we choose to pretend that these walking wounded are OK the way they are, that their present injuries are the best they can hope for in life.” He copied that e-mail to a staff member in the university's women’s studies department. Called on it, Hilton himself said he was sorry for the e-mail and acknowledged it had been worded “very badly.” The University said "administrative action" would be taken against Hilton but would not be made public. I've found no further indication of what "discipline" may have been imposed.

These are two cases out of how many universities, faculty members, film festivals, etc. across the country? One was sparked by student protest, not direct retribution by the school, and in the other, the faculty member himself admitted wrongdoing. This is hardly a rising tide of irrational restriction on freedom of religious expression.

Oaks is in no position to criticize two public universities for such actions when the private university over which he presided has dismissed, denied continuing status, or censured far more than two faculty members and students who have taken critical positions relating to official LDS church policy or leadership as well as those who for personal reasons did not pay a tithe to the LDS Church, and which even today will expel an LDS student solely for joining another church.

Tune in tomorrow for the dolorous details of two candidates for masters' degrees in counseling who were penalized or dismissed from programs allegedly because of their religious beliefs that homosexual relations are wrong.

14 February 2011

It's About Love

Today we'll take a break from the Oaks series.

This is a re-post of my piece from Valentine's Day last year. It got nearly 400 hits, far more than any other post I've ever written. I was encouraged to post it every February 14th and I think that's a pretty good idea. So here goes.

On this Valentine's Day, I wanted to re-visit and clarify something referenced in my last post. The reason will become clear in just a moment. I've decided one thing my correspondent mentioned needs more attention: the huge issue they had with the biomechanics, with "the fit" of genitalia as deciding the morality of being gay. So to that person I'd like to say this.

It's not about sex. Let me repeat. It's not about sex. Getting hung up on that issue puts the cart before the horse. Like I said before, deep down inside, everyone wants love, intimacy, security, appreciation, commitment. Optimally, sex should be a result of all that. True, some treat it like a casual playground activity, but it can and should be so much more: an expression, a manifestation of that love and care and appreciation and commitment. This is true whether a person is gay or straight. The sex is a consequence, at best a corollary. It is not a cause or catalyst.

Understanding this should help my correspondent get over the mental roadblock they have with what they imagine is misfit physiology. They need to understand that one of God's gay sons who truly loves another isn't just fixated on the other guy's equipment. He feels a spark, a connection, a pull like a magnet toward the spirit of the boy he loves. His heart will feel the same warm thrills and his tummy the same butterflies as any straight person would feel for their beloved. He will have hopes and dreams and longings when he thinks about that one special boy that are no different than what my straight correspondent would feel for their special one. He too will be unable to sleep or eat sometimes, preoccupied with thoughts and daydreams about them being together. Not about the sex, just about basking in the glow of the love they share. It is a connection of the heart, the mind, the soul, the spirit.

My correspondent may not be able to comprehend that this is possible between two guys, but I assure you it's true. One can accept that gravity, or relativity, or black holes, do exist and work--obviously--without comprehending just how. I have seen this kind of love, happiness, commitment in many gay couples myself. The love and commitment are obviously there. I've included with this post some pics of two wonderful, delightful friends of mine who will be married later this year. I defy anyone who doesn't have a heart of stone to look in their eyes and not see the delight and happiness and love they have for each other. Only the most sordid minds would look at them and still insist it's just about physical gratification.

So to my correspondent, let me say again on this Valentine's Day. It's not about sex. It's about love.

Update: I was privileged to officiate at Dan & Michael's wedding last June in Massachusetts. It was just as joyful and profound as I expected. They are truly married in every sense of the word, loving and faithful and committed to each other. I've seen lots of M/F married couples who should envy what Dan & Michael have. Why, why, why do so many still refuse to even consider the possibility that this is a good thing? Jesus said we should judge things by their fruits, their results. Dan & Michael are living, breathing evidence that it really is about love, and that same-sex couples not only deserve but are just as capable as straight couples of the commitment and the blessings of marriage.

13 February 2011

Oaks Rebutted, Chapter Two

Today we examine the second of Dallin Oaks' faux examples of restriction of religious freedom.

Oaks: "In New Jersey, the United Methodist Church was investigated and penalized under state anti-discrimination law for denying same-sex couples access to a church-owned pavilion for their civil-union ceremonies. A federal court refused to give relief from the state penalties."

Real story:

The Ocean Grove Camp Meeting Association (OGCMA), a Methodist organization but NOT the Methodist Church itself (Error #1 to Oaks), had a New Jersey state property tax exemption for a boardwalk pavilion in the seaside town of Ocean Grove. The exemption's purpose was to reward organizations for opening their buildings and facilities for public use. The OGCMA knew this, amd had opened the pavilion for a wide variety of public events that had nothing to do with the Methodist Church or Christian belief. It was used for band concerts, skateboarding, debates, and even Civil War re-enactments. The OGCMA also made it available for marriage ceremonies by people of any faith. But when a lesbian couple who'd been together for over 30 years (each partner in her 70's) wanted to use it for a commitment ceremony (not a marriage ceremony), the OGCMA said no.

The chairman of the OGCMA at the time was Scott Rasmussen, one of the original founders of ESPN, who subsequently became a Republican campaign consultant, founder of Rasmussen Reports, and business associate of at least two convicted felons. For more details, see http://therasmussenretort.blogspot.com/.

The New Jersey real estate commission ruled that if OGCMA wanted the property tax exemption for their pavilion which was open to the public, they could not discriminate as they had against the lesbian couple.

The lesbian couple filed a complaint against the OGCMA with the state Division of Civil Rights. They were joined in their civil rights suit by a second Ocean Grove lesbian couple who had also been denied use of the pavilion for their civil ceremony for the same reason.

The OGCMA tried to pre-empt the state action by filing suit in federal court asking that the civil rights case be dismissed. The federal judge refused, saying he had no authority to interfere with this particular issue of state law. (As a former law school dean and judge, Oaks surely knew this was the right result under well-settled law, yet he sought to give the opposite impression in his speech.)

The OGCMA appealed, and the 3d Circuit U.S. Court of Appeals in Philadelphia said the U.S. District Court was correct to dismiss the OGCMA's suit. The New Jersey Division on Civil Rights found that the OGCMA's refusal to rent the pavilion to the couple for their commitment ceremony violated the public accommodation provisions of New Jersey anti-discrimination laws.

Oaks represents this case as an assault on religious freedom. The real story is far less simple. Ocean Grove is a diverse town, not just a religious ministry. OGCMA had public funding and a special property tax exemption for the pavilion based on a representation that it would be open to the general public, rather than restricted to use by the Methodist religious group. The property tax treatment exemption was not a function of OGCMA’s religious status, but rather a result of its promise to provide open public access to the site.

Until it denied the lesbian couple's request to use the pavilion, OGCMA consistently treated the pavilion as public space and accepted secular and religious reservations for its use, subject to payment of a standard fee, and when not so reserved the pavilion was open for all to use. The OGCMA had never put up any signs or other public indication that the pavilion was private property.

At best this case shows competing public and private interests that must be balanced and reconciled. The balance tipped in favor of public accommodation and the application of laws prohibiting discrimination because OGCMA itself had sought preferential tax treatment for the pavilion based on its own conduct of opening the pavilion to all and sundry for virtually any public use—until a couple with whom the OGCMA had private religious disagreements sought to use the facility.

Similarly to the New Mexico case discussed yesterday, the OGCMA had chosen to enter the public sphere by opening its pavilion to public use by anyone willing to pay a fee. It expressly promised, as a condition of its tax exemption, that the public would have equal access to the pavilion. By so doing, it characterized the pavilion as a "public accommodation" and subjected itself to state civil rights laws governing public accommodations. Its effort to bar the lesbian couple from using the pavilion was a classic case of trying to have its cake and eat it too.

OGCMA always had and ultimately did exercise the power to withdraw the pavilion from public use and refuse all reservations of the space. But as long as they chose to open it to public use, the OGCMA—like the New Mexico photographer—couldn't claim that purely private religious reasons exempted them from compliance with statutes that applied to everyone else in a public activity which the OGCMA had chosen to pursue. Oaks, a former law school dean and judge, surely should have known that.

Again, Oaks paints an overly simplistic—and ultimately misleading—picture. His legal background means he should have known better than to do this. There was no "restriction of religious freedom" here. If the OGCMA didn't want to allow gay couples to use the pavilion, all they had to do was withdraw it from public availability. Which they ultimately did.

Tomorrow, we turn to alleged assaults on personal free speech, with the woeful cases of two university faculty members who Oaks says were disciplined for expressing personal convictions that homosexual behavior is sinful. As you may have guessed by now, the real stories aren't quite as Oaks would have us believe.

12 February 2011

Oaks Rebutted, Chapter One

Someone called "Trev" made an interesting comment on my last post about Dallin Oaks' misrepresentations. He quoted my observation that "those who are not attorneys probably won’t take the time to research the cases (or even know where to find them) or see the distinctions" between what Dallin Oaks claimed and what the truth really was, then said this:

You're right. I don't want to take the time. But I *am* interested. I kept waiting for the substantiation of your claims of misrepresentation to surface, but they never did. Could you educate us readers on the actual details of those cases and what they were? I always question these cases they bring up when they speak, but, as you say, I'm lazy and don't want to take the time to look them up. If you've already done the work, do share, rather than just saying you did it and leaving it at that."

It's interesting that he thought I'd called him "lazy" when I didn't, and then flat-out admitted that he was. Couldn't help chuckling at that.

Truth is, my life is pretty packed right now. Those who follow this blog have noticed I'm not writing nearly as much lately. I've resolved a lot of the conflicts that drove my previously more frequent and lengthy posting, and I have a lot going on personally and professionally which take priority. Result: blog posting drops off a bit.

Part of me wants to say "Trev, if you really are that interested, you should be willing to take the time to look something up!" But maybe he's as busy as I am, that's possible too. So "Trev," I went back and did the research for you and for anyone else in your situation. As often happens, the real story is not packaged in quite the same neat little soundbites used by Oaks. So I'll do a separate post for each of his examples of "threats to religious freedom," one a day for the next week. Any non-lawyer who finishes reading these will not only have my admiration for endurance, but is also likely to get more of an education in the legal realities of "freedom of religion" than they ever would from Oaks' speech.

Okay, here we go. First one.

Oaks: "In New Mexico, the state's Human Rights Commission held that a photographer who had declined on religious grounds to photograph a same-sex commitment ceremony had engaged in impermissible conduct and must pay over $6,000 attorney's fees to the same-sex couple. A state judge upheld the order to pay."

Real story:

The case arose after Vanessa Willock of Albuquerque contacted Elane Photography about photographing her commitment ceremony. Its owner Elaine Huguenin told Willock by e-mail "we do not photograph same-sex weddings," but gave no explanation for the refusal.

The next day, Willock's partner, Misty Pascottini, asked Elane Photography via e-mail if the studio would photograph her wedding. Pascottini didn't identify herself as Willock's partner. Huguenin responded that she would be willing to travel to photograph Pascottini's wedding, and sent her pricing information.

Willock filed a discrimination claim in December 2006 with the New Mexico Human Rights Commission, seeking attorneys fees but no damages.

The Commission heard the matter and decided against Elane Photography because its admitted "existing policy that excludes same-sex couples from its wedding photography services" violated the state's Human Rights Act. That law prohibits a business dealing with the public from making any "distinction in offering or refusing to offer its services" on the bases of race, religion, color, sex, sexual orientation and several other factors. The decision went up to the New Mexico Court of Appeals which affirmed it.

Oaks suggests this was an encroachment on religious freedom. The New Mexico court disagreed. It correctly noted that neither the business nor its owners' own religious beliefs or practices were restricted in any way by the state's law against discrimination. "At most, they have been directed to respect [the couple's] belief system and religious observation. They are not being asked to participate in the observation or to adopt or even defend [the couple's] religious beliefs. They are merely being asked to photograph it, for an agreed fee in the ordinary course of their business."

The New Mexico Court cited an Alaska Supreme Court decision in a similar case brought by a landlord who "refused to rent to roommates of the opposite sex because of the appearance of immorality." The landlord insisted he was not discriminating on the basis of marital status, but even if he was, he was only discriminating based on conduct ("hate the sin, love the sinner," anyone?) and in any case he was exempt from state anti-discrimination laws because he was merely exercising his freedom of religion.

The Alaska Supreme Court disagreed. "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." Put simply, your religion doesn't give you a free pass to ignore laws applicable to others who are in the same business you voluntarily chose.

In fact, the New Mexico court found the issues to be so clear that it granted what's called "summary judgment" against the photography business. That's legalspeak for "this isn't even worth having a trial, the result is so clear so here's the ruling right now."

This was such a predictable outcome, based on well-established legal federal and state legal precedent, that it didn't even need a trial. The photography business violated the state anti-discrimination law. Period. Religious belief doesn't get you an exemption, and that's not a new rule. And it's not a "restriction on religious freedom" either. Unless you think that religious bases for defending slavery are valid, because the analysis is the same.

How can I put this politely? Oaks "misrepresented" this case when he cited it as an example of encroachment on religious freedom.

Tomorrow, the equally exciting case of the poor persecuted New Jersey church that refused to let a gay couple use their facility for a commitment ceremony.

05 February 2011

Not Again


Living in an LDS congregation and region that was particularly active with personal and financial support for Proposition 8, I saw up close and personal what Mormons actually think of gay people. I also heard over and over the advice of LDS leaders on the subject, their jeremiads about encroaching loss of religious freedom and societal degradation that—they said—must inevitably follow if marriage equality becomes law.

As an attorney I’m trained to be skeptical of just about everything, and to demand, or find, proof for any claim anybody makes about anything. So when I heard LDS apostles talk about specific cases of religious liberty being infringed by “the gay agenda,” I checked those cases myself.

I found that every single time, the LDS leaders had misrepresented the facts. Not their predictions or extrapolations, but the facts of the stories they told. I’m being kind with my description of what they did, of course. I could use stronger words. I was stunned. How could these men I’d been taught to revere as “prophets, seers and revelators” do that? Facts are facts, and they’d not been truthful about facts. Yes, I know it's one thing to be mistaken about details on occasion. But that's not what happened here. This was consistent, repeated misrepresentation with the goal of persuading the flock that a danger loomed large, when in truth the "encroachments on religious freedom" were a total myth, completely unsupported by the actual cases LDS leaders cited. That’s when trust evaporated.

I would have thought that, over two years later, the myths spread about those alleged cases of infringement of religious liberty being infringed by “creeping secularism” or “anti-religionism” or “the gay agenda” or the bogeyman du jour would finally have succumbed to the readily available truth.

Alas, no. This past week Dallin Oaks, LDS apostle, gave a speech at the known-for-its-conservatism Chapman University law school in SoCA in which he reiterated some of the same myths about these alleged instances of encroachment on religious freedom which had “already happened.” I won’t bore you with the details, they are easily found through Google search by anyone who’s interested. The bottom line is that once again, Oaks’ speech spun the facts in such a way as to completely misrepresent what actually happened.

I won’t go into a detailed analysis of whether Oaks’ predictions of encroachment on LDS religious freedom are valid. But in sum, he essentially says LDS religious freedom should be given carte blanche but not necessarily the freedoms of other religions, e.g. those who want the religious freedom to perform legally binding same-sex marriages in their churches—a freedom which LDS intervention in California actually took away.

What is most dismaying to me, however, is that this man who I know many of my family and friends revere as having a special right to higher levels of insight and inspiration nevertheless persists in spreading falsehood. I’m not talking about his predictions for the future. I’m talking about his use of examples, actual reported legal cases, in which the facts and implications are completely different from what he wants his audience to believe. Yet those who are not attorneys probably won’t take the time to research the cases (or even know where to find them) or see the distinctions. They will simply rely on Oaks’ opinion, ex officio, and believe his conclusions without question.

With all due respect to Oaks, gentle reader, it’s irrelevant whether you believe he is a prophet, seer and revelator or not. The bottom line is that he has spun facts in a way that completely misrepresents the truth, in order to support his pre-determined conclusion. How can his position in the church justify that? Giving him a pass on this just because he’s an apostle means you think a different standard of honesty applies to him than to others outside the twelve (or fifteen). Do you really want to go there?

How many times does this have to be said? How many debunkings does it take to kill a myth that reinforces religious prejudice? I’m beginning to understand what Hercules dealt with when he tried to kill the Hydra. Sheesh.