Sunday, October 19, 2014

The Wedding Shop

The gist of the story is that two ordained ministers, running a chapel that offers weddings and related services, refuse to perform wedding ceremonies for two persons of the same sex although such marriages are now legal in their state (Idaho). The State’s position is that their professional activities qualify as a public accommodation and, under existing non-discrimination statutes, are subject to sanction if they refuse to abide by the requirement to not discriminate against those with a same-sex preference.

The opposition maintains that this is an infringement of First Amendment rights that guarantee religious liberty, freedom of conscience, and protection against government coercion.

The confusion results because few understand the nature of marriage and its true reality, a social contract between two persons that is sanctioned by the state.

Marriage is a universal phenomenon that is shared by all cultures everywhere throughout history and current times. Marriage is not an expression of religious belief although people have always sought a religious blessing upon the contract because marriage is the most basic and fundamental relationship anyone will ever have. Government, even in its most primitive expression as the elders of a small village, has an interest in promoting social welfare. Therefore, it is in the interest of the community to provide for stabile marriages, for protecting the weaker party against the stronger, and ensuring that the result of the marriage are protected and provided for—children.

Ordained ministers conduct marriage ceremonies that complete the contract as an agent of the state. They are responsible for ensuring that couples have a valid license before they administer the vows. They are responsible after the wedding for signing the license, ensuring that witnesses have signed the license, and mailing it in to the local government clerk. If they fail to register the license with the clerk after the ceremony, ministers are subject to sanctions. Clergy perform weddings as government agents. As such, they are subject to the policies and statutes of government authorities.

If they have a matter of conscience and feel that their religious beliefs prevent them from administering marriage vows for any and all couples the State has sanctioned by issuing a license, ordained clergy have an option. Stop performing marriages. It is not an inherent and essential part of their calling.

Rather, in western culture, the Christian minister began conducting marriages as a historical accident. In ancient times, after the church was legalized by Constantine, couples continued to go to the local government clerk to register their marriage. Afterward, having taken their vows, devout couples went to the church to receive the blessing of God upon their union. Traditional wedding ceremonies retain these two features of the devout wedding: the taking of vows to complete the marriage contract and the receiving of divine blessing upon the union.

When Rome fell and Europe passed into feudalism, illiteracy spread among populations. In remote villages and small cities, the only literate people were clergy, those who had to learn to read and write in order to study scripture and write sermons. As the only literate person in the village, the feudal authority, often illiterate itself, turned to the clergy to function as government clerks to keep essential records of birth, marriage, and death.

This historical arrangement continues into the present day. It is not necessary, but it has been convenient as people traditionally look to the church as the place to get married.

Therefore, it is within the authority of the State to require its agents, including ordained clergy, to perform the marriages it has sanctioned. (Of course, the State does not have the authority to require the clergy to use church property for these ceremonies or to go to venues outside the normal scope of the clergy’s activities. But the State can pull the agency if it desires. Ministers have no right to perform marriages.)

Clergy who no longer perform marriages may still conduct ceremonies to bless the union according to the beliefs of themselves and their congregations. The State cannot demand that they convey a religious blessing that violates their conscience.

Now, for the second aspect of the story that very few know, perhaps including lawyers, whose legal degrees required them to study the foundations of law. In this aspect, the wedding shop story is no different from that of the bakers, those who are in business to create wedding cakes but refuse to sell to same-sex couples because of their religious beliefs.

Centuries-old English common law required that common carriers take all comers. They could not refuse or discriminate in providing services. From Wikipedia:
A common carrier is distinguished from a contract carrier (also called a public carrier in UK English),[2] which is a carrier that transports goods for only a certain number of clients and that can refuse to transport goods for anyone else, and from a private carrier. A common carrier holds itself out to provide service to the general public without discrimination (to meet the needs of the regulator's quasi judicial role of impartiality toward the public's interest) for the "public convenience and necessity".

It is generally understood in the modern business climate that this holds true for all businesses. Those who open their doors to provide goods and services to the public must do so without discrimination.

The State is within a centuries-old tradition to require those who provide public accommodations, that is, goods and services to the general public, must do so without discrimination. We may disagree with the requirement, but we are not exempt from it because we claim it violates our conscience.

To be in business means you must accommodate all comers, regardless of conscience, without discrimination, unless a condition that a reasonable person would agree is not discrimination, but a valid reason, exists for refusing.

As much as people may not like same-sex couples, that is not a valid reason for refusing to accept their business. The Wedding Shop cannot refuse to perform the ceremony as a matter of First Amendment protected conscience.