Pastor's facing jail and fines for not conducting same-sex marriage

[joeb]

What do you think about this?  Two pastors, a husband and wife team, who own a for-profit marriage chapel have had the city of Couer d'Alene, Id. levy a 180 day jail term and $1,000/day fine until they perform a requested same-sex marriage.  

 

I thought our Constitution says that our government shall make no law prohibiting the free expression of a person's religion.   Why a person's constitutional rights should disappear just because they own a business is beyond me.  These pastor's aren't trying to say no one should marry this couple.  They aren't trying to deny them their rights.  They are just wanting to express their own beliefs and live by them.  

 

http://dailycaller.com/2014/10/19/idaho-city-to-christian-pastors-preform-same-sex-weddings-or-face-jail/

[Gail]

Yep!

[pierrepaul]

 

 

I thought our Constitution says that our government shall make no law prohibiting the free expression of a person's religion.    

 

The Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Without a fair amount of judicial activism and creativity, the First Amendment only applied to Congress, not to the States. It was only through the Civil War, the 14th Amendment and a rather creative Supreme Court decision in 1940 that the free exercise clause was held to be "incorporated" against the states through the "due process" clause of the 14th amendment.

 

The first amendment was drafted in absolute language, but was intended to apply to only one branch of one level of government, namely Congress, the legislative branch of the federal government. States were left free to legislate in all matters regarding religion. Since the 1940s, this part of the first amendment was extended to the states (and other decisions extended it to other governmental and quasi-governmental entities such as the executive and subsidiary entities such as schools and municipalities). Of course the corrollary of incorporating such absolute language against all governmental and quasi-governmental authorities is that the language began to be interpreted in a less than absolute manner, and the doctrines of "strict scrutiny" and "intermediate scrutiny" were developed.

[joeb]

The Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Without a fair amount of judicial activism and creativity, the First Amendment only applied to Congress, not to the States. It was only through the Civil War, the 14th Amendment and a rather creative Supreme Court decision in 1940 that the free exercise clause was held to be "incorporated" against the states through the "due process" clause of the 14th amendment.

 

The first amendment was drafted in absolute language, but was intended to apply to only one branch of one level of government, namely Congress, the legislative branch of the federal government. States were left free to legislate in all matters regarding religion. Since the 1940s, this part of the first amendment was extended to the states (and other decisions extended it to other governmental and quasi-governmental entities such as the executive and subsidiary entities such as schools and municipalities). Of course the corrollary of incorporating such absolute language against all governmental and quasi-governmental authorities is that the language began to be interpreted in a less than absolute manner, and the doctrines of "strict scrutiny" and "intermediate scrutiny" were developed.

I don't think I've ever seen what you're saying here.   

 

Do you really think your interpretation is the correct one?  Many of our original settlers came here to escape religious persecution, and yet you're telling me that the founders would purposely write the Constitution to allow the states to persecute people for their religion, and yet forbid the federal government from doing so?   It doesn't make any sense at all to me.  Jefferson had a lot of things to say about religious freedom:

 

 

 

"We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries." --Thomas Jefferson: Reply to Virginia Baptists, 1808. ME 16:320

"The constitutional freedom of religion [is] the most inalienable and sacred of all human rights." --Thomas Jefferson: Virginia Board of Visitors Minutes, 1819. ME 19:416

"Among the most inestimable of our blessings, also, is that... of liberty to worship our Creator in the way we think most agreeable to His will; a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support." --Thomas Jefferson: Reply to John Thomas et al., 1807. ME 16:291

"In our early struggles for liberty, religious freedom could not fail to become a primary object." --Thomas Jefferson to Baltimore Baptists, 1808. ME 16:317

"Religion, as well as reason, confirms the soundness of those principles on which our government has been founded and its rights asserted." --Thomas Jefferson to P. H. Wendover, 1815. ME 14:283

"One of the amendments to the Constitution... expressly declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:382

"The rights [to religious freedom] are of the natural rights of mankind, and... if any act shall be... passed to repeal [an act granting those rights] or to narrow its operation, such act will be an infringement of natural right." --Thomas Jefferson: Statute for Religious Freedom, 1779. (*) ME 2:303, Papers 2:546

Your point of view also allows the states to destroy freedom of the press, freedom of speech.  I hardly think your point of view is the correct one.  

[joeb]

Yep!

What do you think about this?  That was the only question I asked, and you answered, Yep.   I'm confused.....

[joeb]

Here's more on this subject with reference to the idea that one state might have laws differing from another state with respect to religious freedom.  The first quote will be the letter from the Danbury, Connecticut Baptist Church written to Thomas Jeffereson.  The second quote will be his reply.

 

 

Sir,

Among the many millions in America and Europe who rejoice in your election to office, we embrace the first opportunity which we have enjoyed in our collective capacity, since your inauguration, to express our great satisfaction in your appointment to the Chief Magistracy in the Unite States. And though the mode of expression may be less courtly and pompous than what many others clothe their addresses with, we beg you, sir, to believe, that none is more sincere.

Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific. Our ancient charter, together with the laws made coincident therewith, were adapted as the basis of our government at the time of our revolution.

And such has been our laws and usages, and such still are, that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen. It is not to be wondered at therefore, if those who seek after power and gain, under the pretense of government and Religion, should reproach their fellow men, should reproach their Chief Magistrate, as an enemy of religion, law, and good order, because he will not, dares not, assume the prerogative of Jehovah and make laws to govern the Kingdom of Christ.

Sir, we are sensible that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State, but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these States - and all the world - until hierarchy and tyranny be destroyed from the earth.

Sir, when we reflect on your past services, and see a glow of philanthropy and goodwill shining forth in a course of more than thirty years, we have reason to believe that America's God has raised you up to fill the Chair of State out of that goodwill which he bears to the millions which you preside over. May God strengthen you for the arduous task which providence and the voice of the people have called you - to sustain and support you and your Administration against all the predetermined opposition of those who wish to rise to wealth and importance on the poverty and subjection of the people.

And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.

Signed in behalf of the Danbury Baptist Association in the State of Connecticut

 

To Messrs. Nehemiah Dodge and Others

A Committee of the Danbury Baptist Association in the State of Connecticut

January 1, 1802

Gentlemen,

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.

Thomas Jefferson
President of the United States

Notice that Jefferson doesn't tell these people that their right to worship as they please is subject to the state of Connecticut, or any other state of the union.  He quotes the federal Constitution as his authority and says their right to worship is guaranteed by it.  

[Bravus]

While I support same-sex marriage, this is an example of unhelpful over-reach, in my view.

Even as an old leftie, this seems like something the market should be allowed to fix. Run a wedding business and don't want to marry same-sex couples? No worries - just miss out on that market. It's not something that should be compelled.

I do think it's sad that Christians seem to be getting politically active only in support of their own right to discriminate, but there we are.

I do wonder whether you would feel that it is appropriate for a wedding business to claim that it has a legitimate religious opposition to conducting mixed-race marriages. It's a parallel case from very recent history. Even in that case, I'd still be inclined to allow the market to sort it out.

[bonnie]

While I support same-sex marriage, this is an example of unhelpful over-reach, in my view.

Even as an old leftie, this seems like something the market should be allowed to fix. Run a wedding business and don't want to marry same-sex couples? No worries - just miss out on that market. It's not something that should be compelled.

I do think it's sad that Christians seem to be getting politically active only in support of their own right to discriminate, but there we are.

I do wonder whether you would feel that it is appropriate for a wedding business to claim that it has a legitimate religious opposition to conducting mixed-race marriages. It's a parallel case from very recent history. Even in that case, I'd still be inclined to allow the market to sort it out.

Gay marriage is a manufactured right .In order to make it a right the definition of marriage had to be changed.

Mixed race marriage did not have to change the meaning of marriage of one man one woman.

[Gregory Matthews]

Joeb, a pastor is not required to run a  public business.  But, once that person decides to run a public business, that business must be run in accord with the law.  Being a pastor does not protect the person from following the law.

 

The pastor is only protected in regard to  services provided to congregational members.

[Gregory Matthews]

Note:  The Pacific Press was required to pay women on the same scale as men.

[bonnie]

Joeb, a pastor is not required to run a  public business.  But, once that person decides to run a public business, that business must be run in accord with the law.  Being a pastor does not protect the person from following the law.

 

The pastor is only protected in regard to  services provided to congregational members.

We have churches locally that rent out their facilities when needed to hold services.Right now a SDA congregation is renting  from another faith until their newly purchased building is ready.   Does this mean this church would now have to rent to a gay congregation or a satanic group?

[pierrepaul]

The "Bill of Rights" for adopted for one purpose and one purpose only - to restrain the powers of the federal Congress.

 

Remember that each state had its own constitution, and the states were fearful that the new federal constitution would override the state constitutions. Many of the states themselves had their own versions of a "free exercise" clause and most had "disestablished" their respective state churches by 1790. But under the US constitution, the Supreme Court has no jurisdiction over state courts deciding state constitutional questions so there was not necessarily a uniform body of case law dealing with free exercise questions.

 

It wasn't that religious freedom had no legal protection in the USA prior to 1940, it's that the source of that legal protection was state constitutions and state laws, not the federal Bill of Rights.

[joeb]

Joeb, a pastor is not required to run a  public business.  But, once that person decides to run a public business, that business must be run in accord with the law.  Being a pastor does not protect the person from following the law.

 

The pastor is only protected in regard to  services provided to congregational members.

See, you buy into the idea that just because a person runs a business he has no right to his religious beliefs.  Therefore, you do not believe in our Constitutional rights.  Read the Constitution closely and tell me where it says that a person gives up the right to the free expression of his religious beliefs just because he engages in commerce.   I'll be waiting, but I know you will never find it in there. 

[joeb]

Note:  The Pacific Press was required to pay women on the same scale as men.

Is it your argument that it is the solemnly held belief of the SDA church that women are NOT equal and should NOT be paid the same as men, and that this order violated the Constitutional rights of SDAs to the free expression of their faith?

[joeb]

The "Bill of Rights" for adopted for one purpose and one purpose only - to restrain the powers of the federal Congress.

 

Remember that each state had its own constitution, and the states were fearful that the new federal constitution would override the state constitutions. Many of the states themselves had their own versions of a "free exercise" clause and most had "disestablished" their respective state churches by 1790. But under the US constitution, the Supreme Court has no jurisdiction over state courts deciding state constitutional questions so there was not necessarily a uniform body of case law dealing with free exercise questions.

 

It wasn't that religious freedom had no legal protection in the USA prior to 1940, it's that the source of that legal protection was state constitutions and state laws, not the federal Bill of Rights.

And as far as you're concerned the states have every right to violate the Constitutional rights of the people who live in that state?  What a facetious argument.  

[hch]

Wisdom is known of her children.

 

When Moses's mom was commanded to throw Moses into the river

She obeyed the law

but she put him in a boat

which the law did not forbid.

 

The pastor in question could do the same thing.

He could uphold God's word and preform the wedding.

 

The solution is so simple

But stubbornness is blinding the eyes.

 

This pastor needs to understand that the Lord has made a way of escape.

[bonnie]

Wisdom is known of her children.

 

When Moses's mom was commanded to throw Moses into the river

She obeyed the law

but she put him in a boat

which the law did not forbid.

 

The pastor in question could do the same thing.

He could uphold God's word and preform the wedding.

 

The solution is so simple

But stubbornness is blinding the eyes.

 

This pastor needs to understand that the Lord has made a way of escape.

That doesn't even make sense. His  personal beliefs tell him he cannot perform this type of ceremony. Hard as it is to understand some people actually do believe gay marriage is wrong and not a right.Neither do they support it verbally,at the ballot box or participating in this type of union.

The gay couple has other options for a religious ceremony. They chose one that would refuse to further their own agenda

[pierrepaul]

And as far as you're concerned the states have every right to violate the Constitutional rights of the people who live in that state?  What a facetious argument.  

 

Pre-14th Amendment and pre-"incorporation" doctrine, and subject to the individual States' constitutions, this was the case. This is not controversial, this is not in dispute, this is not an "argument"; it is a factual matter of US constitutional history, development and case law.

 

The 14th Amendment and the "incorporation doctrine" jurisprudence thereunder circa 1920-1940 wrought a revolution in US Constitutional law. In the absence of the 14th Amendment, the 1st Amendment meant exactly what it said: "CONGRESS shall make no law ...". You will search in vain for restrictions on state authority until you get to the 13th & 14th amendments.

 

Keep in mind, as it bears repeating, since my previous post appears to have had no affect on you, the states each had their individual constitutions pre-dating the federal constitution and the creation of the federal state. Many of those state constitutions enshrined basic human rights such as the rights of a free press and the free exercise of religion. Such state constitutions were among the sources of inspiration for the federal constitution, which of course, restricted the power of the federal Congress.

[bonnie]

The "Bill of Rights" for adopted for one purpose and one purpose only - to restrain the powers of the federal Congress.

 

Remember that each state had its own constitution, and the states were fearful that the new federal constitution would override the state constitutions. Many of the states themselves had their own versions of a "free exercise" clause and most had "disestablished" their respective state churches by 1790. But under the US constitution, the Supreme Court has no jurisdiction over state courts deciding state constitutional questions so there was not necessarily a uniform body of case law dealing with free exercise questions.

 

It wasn't that religious freedom had no legal protection in the USA prior to 1940, it's that the source of that legal protection was state constitutions and state laws, not the federal Bill of Rights.

The Constitution for the United States, Its Sources and Its Application

Our Enemy, The State by Albert J. Nock

The Classic Critique Distinguishing 'Government' from 'STATE'

 

United States Constitution Amendments

Article I of the Bill of Rights

 

 

This excerpt from the Constitution of the United States of America is taken from the book:

"The Constitution of the United States, Its Sources and Its Application"

by Thomas James Norton,

Published by the Committee for Constitutional Government.

First printed circa 1922, last known publishing date circa 1969.

 

It is well to remember the words of James Madison as we search for truth in government and understanding in this excerpt.

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."

 

 

ARTICLE I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

The operative words in this Article are "Congress shall make NO law", which includes but is not limited to "laws, rules, regulations, proclamations, etc."

Let it be borne in mind that ALL of the first ten Articles of Amendment are of national effect, are declaratory and restrictive, superceding all contravening portions of the national and state constitutions..

Any and all laws, rules, regulations, proclamations, etc., Pro or Con, which may be entered in the record, addressing or contravening these freedoms are UNCONSTITUTIONAL and therefore NULLITIES.

Each phrase of this succinct statement of purpose and restriction upon the Congress and upon the Federal Government is re-stated below with definition and explanation of its sources and its application.

 

[pierrepaul]

Each phrase of this succinct statement of purpose and restriction upon the Congress and upon the Federal Government is re-stated below with definition and explanation of its sources and its application.

 

Precisely.

 

This position is supported by the federalist papers and confirmed by the Supreme Court of the USA up until the adoption and ratification of the 14th Amendment and then further confirmed by early post-14th amendment decisions such as the Slaughterhouse and the Cruikshank decisions. Until the 14th Amendment, no one even gave a thought about applying the 1st amendment to the states since the language, text, history and background of the amendment unequivocally mentioned the federal Congress alone.

[bonnie]

Pre-14th Amendment and pre-"incorporation" doctrine, and subject to the individual States' constitutions, this was the case. This is not controversial, this is not in dispute, this is not an "argument"; it is a factual matter of US constitutional history, development and case law.

 

The 14th Amendment and the "incorporation doctrine" jurisprudence thereunder circa 1920-1940 wrought a revolution in US Constitutional law. In the absence of the 14th Amendment, the 1st Amendment meant exactly what it said: "CONGRESS shall make no law ...". You will search in vain for restrictions on state authority until you get to the 13th & 14th amendments.

 

Keep in mind, as it bears repeating, since my previous post appears to have had no affect on you, the states each had their individual constitutions pre-dating the federal constitution and the creation of the federal state. Many of those state constitutions enshrined basic human rights such as the rights of a free press and the free exercise of religion. Such state constitutions were among the sources of inspiration for the federal constitution, which of course, restricted the power of the federal Congress.

 

This is 2014. Can states write their own laws concerning freedom of religion that supercedes the federal government?

 

 

 

 

The First Amendment[edit]

In the United States, the religious civil liberties are guaranteed by the First Amendment to the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The "Establishment Clause," stating that "Congress shall make no law respecting an establishment of religion," is generally read to prohibit the Federal government from establishing a national church ("religion") or excessively involving itself in religion, particularly to the benefit of one religion over another. Following the ratification of the Fourteenth Amendment to the United States Constitution and through the doctrine of incorporation, this restriction is held to be applicable to state governments as well.

The "Free Exercise Clause" states that Congress cannot "prohibit the free exercise" of religious practices. The Supreme Court of the United States has consistently held, however, that the right to free exercise of religion is not absolute. For example, in the 19th century, some of the members of The Church of Jesus Christ of Latter-day Saints traditionally practicedpolygamy, yet in Reynolds v. United States (1879), the Supreme Court upheld the criminal conviction of one of these members under a federal law banning polygamy. The Court reasoned that to do otherwise would set precedent for a full range of religious beliefs including those as extreme as human sacrifice. The Court stated that "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." For example, if one were part of a religion that believed in vampirism, the First Amendment would protect one's belief in vampirism, but not the practice.

[bonnie]

The gay marriage right should be left up to the states. Majority votes against gay marriage have been struck down.

[pierrepaul]

This is 2014. Can states write their own laws concerning freedom of religion that supercedes the federal government?

 

 

I'm not sure what your question is. The federal government cannot constitutionally adopt laws infringing on the free exercise of religion (1st amendment). The states are similarly constrained (14th amendment). So in matters of freedom of religion it is not a question of one order of government superceding the other order of government; both orders of government are similarly constrained.

 

So generally speaking, states no longer have the power to abrogate the free exercise of religion. However, (and this was my original point), when the courts extended the 1st amendment to cover state action through creative reading of the 14th, they started a parallel trend where the 1st amendment would not be given the full power that its absolute language implied.

 

For example, in California, the activites of the Church of the Most High Goddess were denied free exercise protection. Religions that require use of illegal narcotics have been denied free exercise protection. Polygamist religions have been denied free exercise protection (although there appears to be movement on this issue in favour of religious freedom as evidenced by the Sister Wives' case).

 

To fully expound on these trends would require an academic dissertation, or at the very least a law journal article, neither of which I have the inclination to write. But the general concept is rather simple. When the 1st amendment applied to only the federal Congress (pre-14th amendment), the framers had no hesitation in expressing the 1st amendment in absolute language and the courts had no hesitation in applying the absolute language as written (actually the courts never really had to apply the 1st amendment very often as Congress steered well wide of such issues, leaving them to the states, as the framers intended). But post civil war, post 14th amendment, and post "incorporation" doctrine (and post Great Depression/New Deal which saw a massive expansion of the federal goverment and a constriction in state autonomy), the courts moved away a little bit from the absolute language of the amendment, adopting the doctrines of "strict scrutiny", "intermediate scrutiny" and "rational basis", depending on the situtation and the cases at bar.

[Bravus]

Too much here on what is legal, too little on what is moral.

Too much on the pastor protecting his own rights, not enough on the pastor protecting the rights of others.

What did Jesus do?

[bonnie]

Too much here on what is legal, too little on what is moral.

Too much on the pastor protecting his own rights, not enough on the pastor protecting the rights of others.

What did Jesus do?

So you believe Jesus would have performed a gay wedding ceremony,even tho He calls it an abomination?

How does it become moral to do something that is against your religious beliefs?