Jeeze, you actually trotted out “Adam and Steve”? Are you some strawman posting sarcastically for a joke or something? You sound so much like a caricature of right-wing nuts I can’t even think of a proper response.

Love the show, love the blog, endlessly amused by the twitter. Great post, and thanks for allowing comments on such a hotly contested issue.

Josh,

I hope you’ll consider me another person in the discussion rather than someone ganging up on you. I’d like to give context to the Ocean Grove discrimination case. The church to which you refer (the OGCMA) owned property that was tax-exempt not because it was church grounds but as part of New Jersey’s Green Acres Program (GAP). This document (PDF, 12 pages, hopefully these comments support HTML tags…) from the New Jersey attorney general’s office is incredibly helpful. To summarize, the OGCMA rented the Boardwalk Pavilion to the public and allowed full, free public access (excluding smoking, skateboarding, and biking) whenever an event was not underway. While some services were held in the Pavilion in summer, the OGCMA did not generally use the Pavilion as a place of worship. The Pavilion is not afforded the first amendment rights afforded a house of worship simply because it is not a house of worship.

I understand how it looks like a slippery slope from church-owned property to an actual church building — indeed, I thought so until I read the above document — but the only reason the discrimination was ruled unlawful was that the terms of the Green Acres Program explicitly state that GAP space must be open to the public “on an equal basis” (PDF, 7 pages, see section 7.35-1.4 (a)). The church agreed to these conditions in their application to the GAP. Furthermore, the OGCMA lost tax-exempt status only for the Beachfront Pavilion. Greater than 99% of their property, including both public and place of worship, retained its tax-exempt status (New York Times). The church did not lose any rights; it suffered the consequences of breaking the terms of the GAP agreement.

Here’s the general point: if a church-owned building is primarily used as a place of worship but is also used for public functions, then it is protected under the Constitution and may legally discriminate. If a church-owned building is primarily used for public functions but is occasionally used as a place of worship, then it is not protected and must abide by all applicable anti-discrimination laws.

I realize that there is a concern that a religious group might be sued for discrimination in their house of worship. Someone will probably try it. But there is no precedent for such a case to stand up in court, and the rights of the religious group are clearly covered by the First Amendment. I agree that the government has trampled a number of our rights in recent history, but it has all been under the guise of protection against attacks. Legal discrimination by a religion doesn’t even remotely fit that category. I think I understand where you’re coming from, but I see no threat to freedom of religion here.

Seriously, there’s a long tradition of same-sex marriages, multi-partner marriages, and all kinds of property-based marriages long long long before the one man/one woman in love idea of modern Western culture.

I appreciate your response and your demeanor, but I think I’m in good company saying that our government has done a piss-poor job of protecting at least three of our Constitutional rights over the last eight years. I’m sure the vast majority of us don’t think Obama would continue the trend, but it’s certainly a concern in the sense that places selling coffee have to warn you that it’s hot. I’m not meaning to be belligerent, and I can see how my position might seem so, but there are a helluva lot of angry people out there on both sides of the debate who would do just about anything to force the issue in their favor. The fear for many in the church who don’t want the government to deny rights is that in the process they’ll still end up on the wrong side of the gun and be brought into legal issues. Yes, there is a long history of protections, especially witnessed as you mention by the Catholic church. However, as has already been mentioned in the comments, there is precedence where a church (Ocean Grove Camp Meeting Assoc.) has been sued for discrimination by denying a gay couple rights to marry on their property and lost. In this case, the church in question lost it’s ability to protect it’s own facility. Some churches are concerned that some of the more aggressive groups would force the issue, taking them to court. Given the precedence set in the CMA case, who knows where the decision will end up. I’m not saying it will happen, but there is fair reason for concern given the last decade worth of court rulings and loss of Constitutional rights (like Bush’s warrant-less wire taps and detaining non-combatants without trial).

Brilliant Peter Sagal on counters the arguments against gay marriage, and a little tribute to Andrew Sullivan too.

Anyway, what I’m really getting at is this: In this country, we are far more protective of religion generally and religious institutions in particular than most countries on the planet, and I think those legal protections are so deeply entrenched in our system that we can be reasonably certain that religious institutions will be immune from any type of legal liability for advocating against “gay marriage” or refusing to marry gay and lesbian couples. That’s their loss, in my view, but the law protects their right to be wrong on this and many other issues, and it’s hard to see how that could change. Not without amending the Constitution, anyway.

By the way, I love Andrew Sullivan … though he aggravates the hell out of me at times. Perhaps that’s all the more reason why I love him.

Doesn’t the recognition of marriage as something special by government, in effect, treat single people as “unequal?”