Wednesday, May 22, 2013

The spin game. Republican Fitzsimmons held out as champion of religious freedom. He really wasn't.

One of the subplots in the House vote on gay "marriage" was an amendment offered by Representative David Fitzsimmons, conservative republican legislator from a conservative suburban district.  His amendment was offered as a supposed protection of religious freedoms for people who don't agree with same sex "marriage".  (Over half of the population of Minnesota.)   Interestingly, he didn't ask for input from groups like Minnesota for Marriage or the Minnesota Family Council which were repeatedly raising the religious liberty concern.

It turns out his amendment was cited by some representatives as a reason for voting for the bill.  It turns out his amendment really didn't add to religious liberty protections and in fact added confusion to the statutory language.  The fact that the pro-gay "marriage" forces were fine with it is also very revealing.

After the vote we sent to House legislators an analysis of the Fitzsimmons amendment from an Alliance Defending Freedom attorney which says in part:
The Fitzsimmons amendment is woefully inadequate.  If passed, countless Minnesotans, as well as religious organizations and for-profit businesses, who hold sincere religious beliefs regarding marriage and human sexuality would be given a choice to either forsake their conscience or close their businesses.  This amendment fails to account for all businesses or individuals who possess equally legitimate beliefs about marriage, leaving them vulnerable to government discrimination and coercion.

I. Changing “marriage” to “civil marriage” neither alleviates nor changes the impact this bill will have on Minnesotans’ free exercise of religion.

a. Adding “civil” before “marriage” wherever it appears in Minnesota statutes is mere semantics and a distinction lacking a difference.  HF 1054 defines “civil marriage” as “wherever the term ‘marriage,’ ‘marital,’ ‘marry,’ or ‘married’ is used in Minnesota statute in reference to the rights, obligations, or privileges of a couple under law.”  Thus, regardless of many Minnesotans’ sincerely held religious beliefs about marriage, they will be forced to recognize as marriage those relationships that are inconsistent with their religious beliefs. A religious group or a for-profit business in the wedding industry will have the same conflicts of conscience if the State redefines marriage or “civil marriage.”  

b. For example, a conflict could easily arise for a videographer recording a same sex ceremony, a counselor who wants to refer to another counselor a same sex couple seeking relationship advice, or a business defining its marital employment benefits.  Placing the term “civil” before “marriage” does not impact or alter the definition of marriage that many Minnesota citizens view as a relationship that only a man and a woman can enter into as husband and wife to be father and mother to any children that they might have.  If enacted, the religious liberty of many Minnesotans will remain unprotected.  

II. The Fitzsimmons amendment explicitly limits the religious freedom of religious organizations. 

a. The Fitzsimmons amendment fails to protect even religious organizations in all that they do, and instead explicitly excludes from protection specific actions these entities might make if the actions are deemed to be “secular business activities.”  Notably, the amendment leaves undefined what these “secular business activities” might include.  So, is the summer camp run by a Jewish synagogue a “secular business activity?”  What about an adoption agency or homeless shelter run by Catholic Charities?  Is a counseling center operated by an evangelical church religious or “secular?”  The exception created here is not only unconstitutional, but the ambiguity could expose these religious organizations to litigation to determine which of the religious organization’s actions are entitled to protection.  Such a test subjects these religious entities to a judicial determination of their actions’ religious bona fides, and leaves to judicial interpretation whether a particular action of a religious entity should receive First Amendment protection.
b. Furthermore, the proposed amendment is inadequate because it fails to protect the rights of religious organizations to recognize and/or participate in only those relationships consistent with their religious beliefs.  Religious groups frequently define their mission to serve others as far broader than just conducting a service or ceremony within the four walls of their house of worship.  Because marriage implicates many more individuals and entities than just those who may be involved with the marriage ceremony, this leaves vulnerable to litigation religious organizations that cannot recognize same-sex marriage, such as counselors, adoption agencies, or social workers.  Additionally, this amendment would likely force religious organizations to provide marital employment benefits to relationships inconsistent with their religious teachings. 

III. The Fitzsimmons Amendment fails to address HF 1054’s failure to protect Minnesota individuals, religious organizations, non-profits, or for-profits from being sued for discrimination based on “marital status.”

a. The lack of religious freedom protections for all Minnesotans in this bill suggests an intent to legislate discrimination and intolerance towards those who believe marriage exists solely between one man and one woman.  If this bill is enacted, such individuals will be persecuted and face legal action for alleged discrimination because this bill changes the legal definition of marriage and thus "marital status" under Minnesota's Human Rights Act.  We should not pass laws that fail to respect the religious freedom of all citizens.  As the Sixth Circuit recently noted in its decision upholding the rights of students to abide by their conscience, "Tolerance is a two way street."  Individuals, for-profits, non-profits, and religious entities that have sincerely held beliefs about marriage could likely be sued for discrimination based on “marital status” should this bill be enacted without language explicitly exempting them because Minnesota’s Human Rights Act bans discrimination on the basis of marital status in the employment, public accommodation, and housing contexts.

IV. The Fitzsimmons amendment leaves many Minnesota individuals and businesses unprotected.

a. The Fitzsimmons amendment fails to recognize that the First Amendment applies to all individuals and businesses that have sincerely held religious beliefs.  In particular, the Fitzsimmons amendment unconstitutionally fails to protect for-profits that are often run by individuals with sincerely held religious beliefs about marriage.  This includes those entities in the wedding industry, such as a photographer, baker, or florist, who could be coerced to participate in and advance a message about marriage that violates their conscience.  It also includes those businesses run by individuals with sincere beliefs regarding marriage, such as a non-religious, for-profit adoption agency or a marriage retreat center, that would remain unprotected under the Fitzsimmons amendments for simply seeking to place children in homes with both a mom and a dad.
b. This amendment fails to extend even the bare minimum protections of the First Amendment, and instead designates which entities and employees may receive protection.  Yet the U.S. Supreme Court has determined that the First Amendment applies to all individuals and businesses, and federal courts—including those in the 8th Circuit—have recently affirmed that even for-profit business entities may not be coerced into providing benefits or services contrary to their values or conscience.  HF 1054, even with the proposed amendment, would force many Minnesota businesses and employees who hold sincere religious beliefs regarding marriage and human sexuality to either forsake their conscience or close their businesses.
As you can read, the Fitzsimmons amendment was not what it was purported to be. 

Well, the left is now trying to give him some cover. A University of Minnesota law Professor Richard Painter has written a piece for the St. Michael Patch describing Rep. Fitzsimmons as a "hero for religious freedom".

A closer look reveals that really isn't the case.  As a result he has "some explaining to do" to his constituents as Desi Arnez used to say to Lucy after she made a mistake.

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