I am disappointed at the outcome of the Proposition 8 election, and of course my opinions have been made obvious on this blog over the past year
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Im actually not disappointed in the CA supreme court because while I dont agree with the outcome they did what they were supposed to do as a court. Thankfully this is why we have the Supreme Court. I think that if we have marriage as a civil institution that gives rights then the equal protection under the constitution is quite valid and they should either get rid of the civil aspect of marriage (I wish, but not happening) or allow gays to marry. Or we could just change the constitution. Thankfully that is harder on the federal level.
I rather like separation of church and state and I figure if there is a church out there that doesnt want to marry gay people then that is totally fine. Boyscouts can say no gays as troop leaders. An all mens private club doesnt have to allow women to join. They are all private organizations. I know there have been issues of church affiliated organizations (like say the charity aspect of a church who accepts federal money to supply food to the poor or help people adopt kids etc.) who have descriminated against gays but I figure if I had to watch stem cell researchers keep two sets of lab equipement on two sides of a room and label which was bought with private money and which with public money just to make absolutely sure that certain research was not done on the public dime then a church can marry whomever (or not marry whomever) while keeping themselves a separate entity from an affilitated organization that accepts federal money (I also count tax breaks as accepting federal money). Annoying? Yeah. Inconvienent? Probably. I cant help but feel its the price we pay for freedom.
Sam posted the wrong link I think. Somewhere on page 20 I stopped because I couldnt see how a doctor who denied fertility treatment to a women because she either was a lesbian (as the plaintiff asserts) or because the doctor cant actively help any unmarried women get pregnant based on their religion (as the defendent asserts), has anything to do with the church's ability to perform marriages. Im pretty sure that even now with gay marriage illegal that after our church ceramonies we still have to go down to the court house and get some paperwork filed for it to be a legally binding marriage. If we never went down to the court house it should still be considered a marriage in the churches eyes as they dont use the government institution to validate their own spritual ceremonies (id hope anyway).
I suppose if gays are allowed to legally marry and this situation occured again the doctor could then be said to be descriminating based on sexual orientation. The state's interest in applying a "neutral and generally applicable" law (the one that says we must ensure full and equal access to medical treatment irrespective of sexual orientation) does outweigh the burden imposed on the right to freedom of religion in this case. What the courts decided was that in this one case the defendents lost because they "can avoid any conflict between their religious beliefs and the Unruh Civil Rights Act’s requirements by ensuring that every patient requiring [intrauterine insemination] receives ‘full and equal’ access to that medical procedure through a North Coast physician lacking defendants’ religious objections." The court notes this option wouldnt be available to a sole practioner but they specifically gave no opinion on the matter so that can be decided in another ruling when it comes up.
That isnt what happened in the case. There was another doctor and the two who had objections did not offer to transfer the case to either of the other two with out objections. The judges state explicitly that the reason the defendants lost was because all they had to do was ensure equal access which could have easily been done by referring the patient to a different doctor at the clinic. They didnt, so it was said the state's interest was more important than imposing on their religion, namely because it wasnt imposing on their religion to pass the patient on to someone who didnt care if she was unmarried (or a lesbian). The judges also explicitly state that if this was a sole practitioner that this case could have been very different and they give no opinion on such a possibility and so let it be decided by any future court.
A medical service provided by a business is under different laws than a church performing a church ceremony. Even if you charged a fee for such service it wouldnt matter. The boyscouts charge money and they dont allow gay scoutmasters because they are a private organization. Churches have at the very least that same protection. Nobody could force a church to perform a gay marriage because it isnt a service by a business protected by equal access. The question here is whether the government can say that the civil institution set up by the government can allow gays to marry. The government cant discriminate but private parties can and do all the time. Long before there was a debate about gays there was debate about race. If you think the government cant outlaw interracial marriage (as many states once did) then it cant outlaw gay marriage.
If gay marriage is approved and a gay catholic couple come to your church and ask to be married and are denied you would see that there is nothing they can legally do to force a church to marry them.
Based on the court document: The judges state explicitly that the reason the defendants lost was because all they had to do was ensure equal access which could have easily been done by referring the patient to a different doctor at the clinic. does not seem correct.
From page 5: Of North Coast’s physicians, only Dr. Fenton was licensed to perform these tasks. But he refused to prepare donated fresh sperm for Benitez because of his religious objection. Two of his colleagues, Drs. Charles Stoopack and Ross Langley, had no such religious objection, but unlike Dr. Fenton, they were not licensed to prepare fresh sperm. Dr. Fenton then referred Benitez to a physician outside North Coast’s medical practice,Dr. Michael Kettle.
The IUI performed by Dr. Kettle did not result in a pregnancy. Benitez was unable to conceive until June 2001, when Dr. Kettle performed in vitro fertilization.3
There were no other doctors available at the clinic, so they referred Benitez to an outside medical practice. There, she became pregnant. Clearly the North Coast doctors did not prevent Benitez from having access.
This lawsuit was about a woman who wanted to punish a medical practice that had discriminated against her. She sued and won, and this demonstrates who's side the court is on in terms of Freedom of Religion versus Equal Rights.
If gay marriage were legal in California, then its pretty much certain that a gay couple would want to punish a church that had discriminated against them. Would they win the suit? It's not certain, but from the above court decision it is clear that the courts consider Equal Rights more important than Freedom of Religion.
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I don't like the gay marriage ban. However, I'm deeply concerned about my Church's right to continue practicing our sacraments unmolested. My concerns are not crazy and are not a cover for a xenophobic hatred of homosexuality.
So my point is this: I voted yes on Prop 8. If I were to support legal gay marriage, I would have to be certain that the Church is protected.
She did opt to not have the fresh sperm meaning one of the other doctors could have done it. I suppose that is moot at this point as I still feel a medical procedure and a marriage are very very very different things. It gets way more sticky when somebody wants an abortion and a doctor doesnt want to. On that one though I think as an optional procedure the doctor has a right to tell the chick to find another doctor.
I do know your concerns are not "a cover for a xenophobic hatred of homosexuality" but rooted in your concern for your church, which I appreciate. I just believe that the church here is actually quite protected and would not lose if some couple tried to sue a church over denial of marriage.
Honestly if it looked like they would win against a church I would propose more laws that protect the church rather than ban gay marriage. There are people out there who also thought that by Not voting yes on prop 8 that schools would be allowed to teach that gay marriage is okay. There are already tons of laws that have been in place forever that dont let teachers talk about controversial topics. They cant even present opposing sides on The Vietnam war much less marriage or abortion. If there is some loop hole then lets propose a ban on teachers discussing these things with minors rather than get rid of a whole set of peoples rights.
Ultimately I think we both feel the same way but view this law's effect in a different light.
I rather like separation of church and state and I figure if there is a church out there that doesnt want to marry gay people then that is totally fine. Boyscouts can say no gays as troop leaders. An all mens private club doesnt have to allow women to join. They are all private organizations. I know there have been issues of church affiliated organizations (like say the charity aspect of a church who accepts federal money to supply food to the poor or help people adopt kids etc.) who have descriminated against gays but I figure if I had to watch stem cell researchers keep two sets of lab equipement on two sides of a room and label which was bought with private money and which with public money just to make absolutely sure that certain research was not done on the public dime then a church can marry whomever (or not marry whomever) while keeping themselves a separate entity from an affilitated organization that accepts federal money (I also count tax breaks as accepting federal money). Annoying? Yeah. Inconvienent? Probably. I cant help but feel its the price we pay for freedom.
Sam posted the wrong link I think. Somewhere on page 20 I stopped because I couldnt see how a doctor who denied fertility treatment to a women because she either was a lesbian (as the plaintiff asserts) or because the doctor cant actively help any unmarried women get pregnant based on their religion (as the defendent asserts), has anything to do with the church's ability to perform marriages. Im pretty sure that even now with gay marriage illegal that after our church ceramonies we still have to go down to the court house and get some paperwork filed for it to be a legally binding marriage. If we never went down to the court house it should still be considered a marriage in the churches eyes as they dont use the government institution to validate their own spritual ceremonies (id hope anyway).
I suppose if gays are allowed to legally marry and this situation occured again the doctor could then be said to be descriminating based on sexual orientation. The state's interest in applying a "neutral and generally applicable" law (the one that says we must ensure full and equal access to medical treatment irrespective of sexual orientation) does outweigh the burden imposed on the right to freedom of religion in this case. What the courts decided was that in this one case the defendents lost because they "can avoid any conflict between their religious beliefs and the Unruh Civil Rights Act’s requirements by ensuring that every patient requiring [intrauterine insemination] receives ‘full and equal’ access to that medical procedure through a North Coast physician lacking defendants’ religious objections." The court notes this option wouldnt be available to a sole practioner but they specifically gave no opinion on the matter so that can be decided in another ruling when it comes up.
Reply
If a doctor cannot refuse to fertilize a lesbian, even when there's another doctor willing and able to do it;
Then, how in the world can a church refuse to marry a gay couple, even when there's another way for them to be married?
You pretty much have to give the church an explicit exception to be biased.
Reply
A medical service provided by a business is under different laws than a church performing a church ceremony. Even if you charged a fee for such service it wouldnt matter. The boyscouts charge money and they dont allow gay scoutmasters because they are a private organization. Churches have at the very least that same protection. Nobody could force a church to perform a gay marriage because it isnt a service by a business protected by equal access. The question here is whether the government can say that the civil institution set up by the government can allow gays to marry. The government cant discriminate but private parties can and do all the time. Long before there was a debate about gays there was debate about race. If you think the government cant outlaw interracial marriage (as many states once did) then it cant outlaw gay marriage.
If gay marriage is approved and a gay catholic couple come to your church and ask to be married and are denied you would see that there is nothing they can legally do to force a church to marry them.
Reply
From page 5:
Of North Coast’s physicians, only Dr. Fenton was licensed to perform these tasks. But he refused to prepare donated fresh sperm for Benitez because of his religious objection. Two of his colleagues, Drs. Charles Stoopack and Ross Langley, had no such religious objection, but unlike Dr. Fenton, they were not licensed to prepare fresh sperm. Dr. Fenton then referred Benitez to a physician outside North Coast’s medical practice,Dr. Michael Kettle.
The IUI performed by Dr. Kettle did not result in a pregnancy. Benitez was
unable to conceive until June 2001, when Dr. Kettle performed in vitro
fertilization.3
There were no other doctors available at the clinic, so they referred Benitez to an outside medical practice. There, she became pregnant. Clearly the North Coast doctors did not prevent Benitez from having access.
This lawsuit was about a woman who wanted to punish a medical practice that had discriminated against her. She sued and won, and this demonstrates who's side the court is on in terms of Freedom of Religion versus Equal Rights.
If gay marriage were legal in California, then its pretty much certain that a gay couple would want to punish a church that had discriminated against them. Would they win the suit? It's not certain, but from the above court decision it is clear that the courts consider Equal Rights more important than Freedom of Religion.
--
I don't like the gay marriage ban. However, I'm deeply concerned about my Church's right to continue practicing our sacraments unmolested. My concerns are not crazy and are not a cover for a xenophobic hatred of homosexuality.
So my point is this: I voted yes on Prop 8. If I were to support legal gay marriage, I would have to be certain that the Church is protected.
Reply
I do know your concerns are not "a cover for a xenophobic hatred of homosexuality" but rooted in your concern for your church, which I appreciate. I just believe that the church here is actually quite protected and would not lose if some couple tried to sue a church over denial of marriage.
Honestly if it looked like they would win against a church I would propose more laws that protect the church rather than ban gay marriage. There are people out there who also thought that by Not voting yes on prop 8 that schools would be allowed to teach that gay marriage is okay. There are already tons of laws that have been in place forever that dont let teachers talk about controversial topics. They cant even present opposing sides on The Vietnam war much less marriage or abortion. If there is some loop hole then lets propose a ban on teachers discussing these things with minors rather than get rid of a whole set of peoples rights.
Ultimately I think we both feel the same way but view this law's effect in a different light.
Reply
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