Looks like someone enjoyed her time in jail

[Ryujin]

So your argument here is that marketing never descends to lying or half truths? We must be using different definitions. You are using the least harmful version for your arguments, I'm using the most harmful. Let's not forget that marketing when done by government is a euphemism for propaganda.

No, my argument is that when marketing descends into lies, it's no longer just marketing.

 

[Ryujin]

Hmm,

Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?

And, could a state legislature declare that its reasons for doing so were a disapproval of non-heterosexual marriage, based on a representation of the religious beliefs of the majority of its citizens?

I suppose this would be a problem in regards to interstate commerce principles, where other states continued to offer marriage licenses.

If not states, could the federal government make a similar statement, "states shall offer civil union licenses, only", using interstate commerce as a justification?

That would have the effect of removing governments from the realm of "marriage". Maybe justified as being too closely affiliated with religion for government to be so much involved.

Thx!
TomB

I tried that angle a while back and no one bought it

 

[Ryujin]

No. A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test. The test here wasn't religious, it was based on sexual-orientation. The motivation was religious, which is an entirely different thing.

The test was religious as she stated that homosexuality is against HER religion and, therefore, she could not "in good conscience" have her name on the licenses. This is widely known and came straight out of her own mouth.

 

[Dannyalcatraz]

No. A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test. The test here wasn't religious, it was based on sexual-orientation. The motivation was religious, which is an entirely different thing.

Let's say that she wasn't religious and just hated gay people for reasons -- just not religious ones. She does the same thing. Does that violate the Establishment Clause? Clearly not, and so doing the exact same thing for a different reason does not either. The Establishment Clause does not act against thought crime, it acts against a subset of restrictions that are based on the religious beliefs of the applicant -- not the administrators.

First of all, I agree and have stated multiple times- possibly in this very thread- that you can discriminate against people as long as you don't do so on the basis of their belonging to a protected class. IOW, you can legally deny service to Rabbi Schwarz because he is drunk, because he is being disruptive, because he slept with your cousin's wife, etc. But you can't deny him service because he's black. (Or Jewish.) Not even if your religion says you should.

However, Davis (whom I believe I called "Hastings" earlier) did exactly that. From an MSNBC report:

On Tuesday morning, Rowan County Clerk Kim Davis denied marriage licenses to at least two couples, telling them she was acting “under God’s authority.”

She explicitly says that she is denying the couples access to legal forms available solely through her office in that county on the sole basis that her faith trumps their recognized Constitutional rights. No other reason is given.

Here's an article from the University of Missouri Law Review. About 7 pages in, they talk about how the Free Exercise & Establishment clauses work in tandem in the context of a Muslim student subjected to mandatory Christian prayer at school. The school loses on both fronts: the Free Exercise clause grants him an exemption from participation, the Establishment clause enjoins the school from allowing the forced prayers at all. The second one matters here- the school is enjoined under that clause because it is establishing a faith-based practice.
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1154&context=facpubs

No, it's not, and you never heard that it was when (if?) those instances happened. Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.

Oh, they did happen- one of the higher profile instances was in San Francisco in 2004, and thousands of licenses and marriages were voided.
https://en.m.wikipedia.org/wiki/San_Francisco_2004_same-sex_weddings

The reasons why there was no Establishment Charge prosecution were:

1) the person issuing the order was the Mayor.

2) the person giving the order to issue licenses did so on constitutional grounds, not religious ones.

3) an EC prosecution would not have been the preferred method of sanction for someone in his position- it would have been impeachment.

In addition, as noted in the Missouri hypothetical, the EC isn't all about "religious tests." The school's forced prayer was not a test, just a mandated behavior, and yet it would be forbidden under the EC.

100%. Her choosing to not issue licenses is not require adherence to a faith, nor does it interfere with another's faith (directly, indirect interference isn't covered). She couldn't provide another compelling interest, and so her actions are not legal and she's being admonished by the courts. I'm glad to be in agreement!

Actually, refusal to issue same-sex marriage licenses DOES interfere with the religious practices of certain faiths or sects of faiths. Some have a long-standing tradition recognizing it, others have come to accept it rather recently.

Here are some sites mentioning a few:

http://www.gayweddinginstitute.com/...iness/post/Which_Churches_Allow_Gay_Marriage/

http://www.robinwood.com/LivingtreeGrove/FAQs/FAQPages/AskRobin/Same-GenderMarriage.html

http://www.freedomtomarry.org/communities/entry/c/native-american

And the General Synod of the United Church of Christ even initiated a lawsuit in North Carolina in order to combat their state's bar against gay marriages as an impermissible interference with their freedom of religion.
http://www.abajournal.com/mobile/ar...religious_freedom_lawsuit_to_overturn_states/

In addition, denying EVERYONE the right to marry will be deemed just as unconstitutional as denying it to protected groups. (See below.)
[/quote]I see you saying that, but that's not actually what the legalities are. You do not have a right to be married.[/quote]

Yes you do.

Here are 14 high-profile cases that define marriage as either a fundamental human right and thus protected in general by the Constitution's dictates, or more specifically as being protected by the Due Process Clause and/or the 14th Ammendment.

Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality): “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
Carey v. Population Services International, 431 U.S. 678, 684-85 (1977): “t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
Zablocki v. Redhail, 434 U.S. 374, 384 (1978): “[T]he right to marry is of fundamental importance for all individuals.”
Turner v. Safley, 482 U.S. 78, 95 (1987): “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992): “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
Lawrence v. Texas, 539 U.S. 558, 574 (2003): “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

This is a Tenth issue. Marriage isn't defined anywhere in the Constitution, and so all other powers and rights fall to the States and the people. Since the people have no authority to enact marriages amongst themselves, this is a State right, and the State can execute it as it sees fit within the boundaries of other applicable laws, such as anti-discrimination laws. The recent case, while it cited a right to marriage (again, recall that I think that ruling is a steaming pile even if it did, accidentally, get in the right ballpark), doesn't actually establish (nor is able to) such a right that supersedes the right of the State to administer it as the State sees fit.

So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage. The State is not obligated to do so.

See above. It is settled law that marriage is a fundamental right, and as such, the States can regulate certain aspects of it, but cannot absolutely deny it, nor severely restrict it. The onus, then, is on the state to justify why & how it should be able to restrict it.

 

[Dannyalcatraz]

That's not exactly what FF&C does. All FF&C does is say that a State must at least consider a similar thing from another State. If they didn't have reciprocity for marriage in place, and without other rulings, a suit that involved the validity of marriage from another State would be allowed into the proceedings as evidence under FF&C. Whether or not it was accepted, though, isn't guaranteed under FF&C.

States have explicitly agreed to accept drivers licenses and marriage licenses (and a list of other things) under reciprocity. For an example of something similar, look to concealed carry permits. Even between two states that have largely similar concealed carry laws, there is little reciprocity.

The FF&C dictates that states "must recognize legislative acts, public records, and judicial decisions of the other states". That is stronger formulation than "must consider." While it is true there are ways in which states may ignore those ennumerated actions of the states, they can do so only under certain restrictive conditions.

Its primary function is to ensure that agreements reached in one state may be enforced anywhere.

And at its secular legal base, a marriage is a legal contract.

But that isn't the only reason why the FF&C is germaine. The other aspect is that states are usually not allowed to question the legal validity of documents issues by other states. They may differ on the exact meanings, but they must- in most circumstances- give said documents the same weight as they would in the state of issuance.[/] This is key as to why things like professional licenses, fishing licenses or gun licenses-especially CC gun licenses- are not honored in other states: usually, the laws controlling those licenses in the state of issuance limits the license to activities within the state of issuance.

Put differently: under the FF&C, if a CC gun permit issued in Texas says it grants the ability to carry a concealed weapon "in Texas", it need only be considered by Missouri as granting its holder a license to carry in Texas.

 

[Ovinomancer]

Many of your opinions differ greatly from the Supreme Court.

Among others, check out Everson v Board of Education. It's a landmark case that establishes that the Establishment Clause goes well beyond a simple religious test, but is rather a "wall of separation between church and state."

Also, here's a list of fourteen cases where the Supreme Court held that marriage was a constitutional right. I believe you will find the fifth and fourteenth amendment sited often.

No, I'm not in difference. Your first cite is the application of the Establishment clause as binding in the stars, and rules that it was unconstitutional to subsidize private religious schools. That's uncontroversial and not in disagreement in any way with my arguments.

As for the right to marry, again, I'm not in disagreement. Your should carefully parse your cited cars and look for where the states are obligated to provide marriage. They are obligated to not discriminate if the provide marriage, but they are not required to provide marriage. Further, any attempt to compel then to do so is in violation of the Tenth. Like other rights, the right to marry is constructed as a negative right, meaning that the state cannot restrict your access, but they don't have to provide it.

 

[Ovinomancer]

No, my argument is that when marketing descends into lies, it's no longer just marketing.

Interesting argument, not sure there much traction there, but I see where your coming from.

 

[Ovinomancer]

The test was religious as she stated that homosexuality is against HER religion and, therefore, she could not "in good conscience" have her name on the licenses. This is widely known and came straight out of her own mouth.

A religious test is not one that has roots in religion, but one that checks the applicants religion prior to providing service. There a difference there, and I'm not sure if I'm doing enough to get it across.

If she asked prior to using if the couple believed in Jesus, and then issues or not based on the answer, that's a religious test.

If she asks whether or not the couple is gay, and issues or not based on the answer, that's not a religious test. It's a homosexual test.

If she asks based on her belief that homosexuals are aliens here to conquer the Earth, then it's a crackpottery motivated homosexual test, but still a homosexual test not a crackpottery test.

If she asks because of her religious belief, it's a religiously motivated homosexual test, but still a homosexual test not a religious test.

Motivation is not the defining question in Establishment clause issues, actual impact is. This year discriminated based on sexuality orientation, not religion, and so is not a violation of the Establishment clause.

 

[Ryujin]

A religious test is not one that has roots in religion, but one that checks the applicants religion prior to providing service. There a difference there, and I'm not sure if I'm doing enough to get it across.

If she asked prior to using if the couple believed in Jesus, and then issues or not based on the answer, that's a religious test.

If she asks whether or not the couple is gay, and issues or not based on the answer, that's not a religious test. It's a homosexual test.

If she asks based on her belief that homosexuals are aliens here to conquer the Earth, then it's a crackpottery motivated homosexual test, but still a homosexual test not a crackpottery test.

If she asks because of her religious belief, it's a religiously motivated homosexual test, but still a homosexual test not a religious test.

Motivation is not the defining question in Establishment clause issues, actual impact is. This year discriminated based on sexuality orientation, not religion, and so is not a violation of the Establishment clause.

I would argue that denying people their protected right to marriage is every bit in violation of the Establishment Clause as is teaching Intelligent Design in public schools. Neither tests the beliefs of the subject, but does enforce the religious beliefs of the person on the side of government. See Kitzmiller v. Dover Area School District.

 

[Ovinomancer]

I would argue that denying people their protected right to marriage is every bit in violation of the Establishment Clause as is teaching Intelligent Design in public schools. Neither tests the beliefs of the subject, but does enforce the religious beliefs of the person on the side of government. See Kitzmiller v. Dover Area School District.

No, teaching intelligent design is teaching a religious belief, and so falls under the Establishment clause (although that's not cut and dried as schools are allowed to present intelligent design alongside other theories/beliefs of how life exists). You can argue this, but it's not correct, nor is it a good metric. Let me try another counterfactual and see if I can illustrate.

A governor of a state, with the assistance of that state's legislature, puts into place a welfare program for needy kids. Throughout it's passage, the governor and the leaders of the legislature continually and loudly cite their religious belief that children need help as the motivation for enacting the law. This is not a violation of the Establishment clause, because the end result doesn't touch religion even as the motivation is entirely religious in nature.

As with this -- discrimination against homosexuals is not religious in nature, even if it's motivation is. Therefore the Establishment clause doesn't apply, as the Establishment clause is about outcomes, not motivations. The Establishment clause is not proof against thought crime.