So this news isn’t exactly great for proponents of marriage equality. The reason I say this isn’t great is because these kind of situations get blown way out of proportion– the anti-equality crowd will be using this to write their propaganda for the next 10 years.

The fact is that this did get all out of hand. A Christian registrar who refuses to do her job will get in trouble for it; I don’t think that comes as a huge shock. The justice of the peace in Louisiana didn’t get a break on his bigotry, and I don’t think Ladele should get one here. The thing is, it’s not up to county or city employees to make the call over who can and can’t get married. If it’s legal, then it’s legal. I would like to point out why I’m calling Ladele a bigot rather than giving her a pass on the religious exemption clause: she’s not clergy.

I should add a caveat– the case in question here with Ladele is in the U.K., not the U.S. The law there is probably different, and I’m not a lawyer, so I’m not going to expound upon the British legal system. I will try and tie it in to the fight for marriage equality here in the U.S. because that’s where I live and I expect I’ll be hearing about this particular case when the petitions to repeal prop 8 are being circulated. NOM and those of its ilk will be crying about how their religious liberty is threatened, and here’s an example from Britain, except they’ll de-emphasize the fact that it didn’t even occur in the U.S., it will simply be held up as an example of OMG, teh persecutionz, and how we need to fight teh ghey.

There’s a very interesting document by Chai Feldblum on moral conflict and liberty. It’s a very long, very footnoted document, but very worth reading, if you have about an hour or so to really go through it.

Feldblum analyzes potential conflicts between moral and religious liberty, and examines whether there are burdens placed on a person’s liberty when you regulate conduct. She also goes on to examine whether those burdens are justified. In other words, the state, as a morally neutral agent can burden beliefs by regulating conduct when there’s a compelling reason to do so.

So, when we look at the Ladele case in light of U.S. law, we have to ask a two-pronged question: was Ladele burdened by being asked to perform civil marriages, and if so, was there a compelling reason to so regulate her conduct? As Feldblum puts it:

In most situations, of course, conduct is not intended to convey expression. For that reason, one does not ordinarily feel that a requirement to engage in certain conduct (or not to engage in certain conduct) necessarily undermines one’s identity or beliefs. We engage in innumerable acts throughout the day. We might get on the subway in the morning, buy a newspaper, order lunch, give an exam or take an exam, fix a car, buy stock or feed a baby. We rarely experience ourselves as expressing a belief system when we engage in these forms of conduct. Beliefs may underlie our actions (for example, public transportation is good; newspapers should be supported; babies should be cared for), but it is rare that we experience our conduct (or our lack of engaging in certain conduct) as inherently intertwined with our beliefs and identities.

So, does Ladele view her conduct on the job as expressive of her religious beliefs? I think it’s a safe assumption to make that she most certainly does. After all, she claims that having to perform a same sex civil marriage unduly burdened her conscience. As Feldblum argues at one point, it’s better to err on the side of accepting the existence of the burden. If I can claim that my identity liberty is burdened when I am discriminated against, and Ladele must accept my statement as valid truth, then I must accept hers as well.

So, I think we can say that there is a burden on her beliefs by compelling her to perform same sex weddings. The second part of the analysis is more complicated: is that burden justified? Is there a compelling reason for the government to regulate Ladele’s actions such that her beliefs are burdened and she has no recourse?

If we look at Feldblum’s example of Boy Scouts of America v. Dale:

If that analysis had been done, and if the Court had taken seriously the adverse impact on the identity liberty of gay people when a government fails to protect them from private discrimination, I believe the Court would have appropriately determined that a group as large and as broad-based as the Boy Scouts should not have been granted an exemption from the state law.

In other words, in order to determine whether the burden on Ladele is justified, we must determine whether allowing the discrimination against LGBT people to stand serves a more wide-ranging interest (as the courts decided in the Boy Scouts case) and whether we are allowing everyone access to the same rights in a meaningful sense.

In the case of marriage rights, most states recognize the desire of LGBT people to start families with their partners (several states that don’t permit same sex marriage still have provisions for domestic partnerships or civil unions). One of the claims I heard during the Prop 8 debate was that gay people are free to marry someone of the opposite sex just like any other heterosexual person, so everyone was allowed access to the same right of marriage. The argument from the pro-equality side was that such allowances were not meaningful, and I think they had a very good point, as that disingenuous argument didn’t take into consideration the simple variable of object choice– not all men want to marry women. Requiring them to do so is not allowing everyone equal access in a meaningful sense.

If heterosexual couples have access to the rights and privileges of marriage, giving homosexual couples meaningful access to the same rights would include allowing them to get married and file their federal taxes jointly. And right about here is where we run headlong into the brick wall of Ladele’s conscience.

At this point, we must determine how to fairly distribute the burden of the conflict. We can make the case that Ladele should be free to decline to perform same sex marriages, and that one of her colleagues could fill in for her. Or we can make the case that Ladele should be forced to do her job or be fired. In the first case, I’d like to quote Feldblum again:

If individual business owners, service providers and employers could easily exempt themselves from such laws by making credible claims that their belief liberty is burdened by the law, LGBT people would remain constantly vulnerable to surprise discrimination. If I am denied a job, an apartment, a room at a hotel, a table at a restaurant or a procedure by a doctor because I am a lesbian, that is a deep, intense and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get
a job, an apartment, a hotel room, a restaurant table or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.

Allowing Ladele to excuse herself from performing a marriage for some people on the basis of their sexual orientation is still surprise discrimination. In order to protect the belief liberty of one registrar, we are potentially exposing dozens (hundreds?) of couples to that kind of discrimination.

In the second case, in Ladele’s own words, she was forced to choose between her religion and her job. But there’s a problem here: she performs civil marriages. Presumably, her job might require her to marry differently religious couples, while her religion might approve of unions that exist only between two Christians. Also, her job might require her to marry a young man and his pregnant girlfriend, when her religion explicitly disapproves of such sexual conduct. Was Ladele performing spontaneous surveys of the religious beliefs of all the couples she married? Did she ensure that they were not engaging in sinful sexual practices prior to their wedding? Allowing equal access in a meaningful sense implies that Ladele would not be permitted to decline to marry any couple, same sex or otherwise. She was practicing discrimination under the guise of her religion, and that isn’t permitted under the law, her religious objection notwithstanding. Anti-discrimination laws do not favor one religion over another, and as such do not violate the anti-establishment clause of the first amendment. Rather, it’s not her objection so much as her discriminatory practices that were the issue.

I have few problems with Ladele’s claim that homosexuality conflicts with her religious beliefs. What I really have a problem with is the sickening application of the double standard, this bullshit of privileging homosexuality as the chief of all sins. A few weeks ago, I peeled the Christian fish decal off of my car (it’s been there for more than 10 years) because I no longer want to be associated with people who act and behave as though they have any place to impose their moral beliefs on others, as though they’re better than anyone else just because they’re straight.

While it appears that I’m imposing my moral beliefs on Ladele, I would disagree– I’m not keeping her from believing anything, though I am in support of regulating her conduct as it benefits a larger group of citizens. I would also argue that if it were my job, I wouldn’t decline to perform her marriage just because she’s a bigot. Civil marriage has evolved into a morally neutral institution, entirely separate from our religious notions that happen to have the same name.