COMMENTARY | COLUMNISTS | GEORGE HAWKINS

Gay rights and religious rights

Recently the U.S. Supreme Court concluded that marriage between individuals of the same sex is protected by our constitution. That now seems to be settled law, though one never really knows anymore.

This gay marriage decision has created a cascade of additional disputes. Some of them, curiously, may affect the way law enforcement personnel deal with the homeless.

On the public side of the cascade, some county clerks have refused to issue marriage licenses to same sex couples, saying it violates their religious convictions. Courts have already found antidiscrimination laws don’t allow that as an exception. I appreciate the willingness of those officials to stand behind their principles, but the problem may not be resolvable to their satisfactions.

It boils down to this. Can a public official choose not to enforce a law or participate in a governmental procedure that the official says violates a religious conviction? The answer, ultimately, is likely to be no.

The oath of office most of the pubic officials took when they accepted the position does not include an exception. The oath doesn’t say “unless I don’t like a law…” Time to resign or issue the licenses.

In the private sector, these laws take another twist. A baker in Colorado who said he would not bake a cake that included images of a gay couple because of his religious beliefs has taken no oath of office. That is also true of the photographer who refused to chronicle a gay wedding.

In both cases, the courts have not allowed that explanation to serve as a reason. Again, however, the problem is an apparent conflict between what private professionals do in a public market and what their state’s laws say about discrimination.

Utah has tackled this question with a compromise that has surprised many. As William Gaston reported in a March story in the Wall Street Journal, “…By overwhelming majorities, the state legislature adopted a pair of bills that banned discrimination against lesbians, gays, bisexuals and transgender individuals in employment and housing while carving out accommodations for individuals and institutions with conscience-based objections to these measures.

“Individual local officials who object to same-sex marriage are not required to preside over such ceremonies, for example, but each local office is responsible for doing so.”

Not everyone is delighted with this approach, and whether it will survive a legal challenge in the future, if one comes, isn’t clear. Most have called it a good step.

As the leadership of the Mormon Church put it in an official statement, “…in a society which has starkly diverse views on what rights should be protected, the most sensible way to move forward is for all parties to recognize the legitimate concerns of others. … While none of the parties achieved all they wanted, we do at least now have an opportunity to lessen the divisiveness on our communities without compromising on key principles.”

So, how does all of this affect efforts to reduce the number of homeless people in our country? Only tangentially, but if you believe the attorney defending a homeless person’s refusal to go to a shelter, it could be coming.

The case is in Boise, Idaho. Boise has a policy similar to a court-ordered approach in Southern California. Both San Diego and Boise prohibit arresting or forcibly moving homeless people from public or private property unless there is a shelter bed available.

The individual who is the protagonist in Boise does not want to go to a shelter, whether or not there is a bed available. The matter went to court in 2009.

An attorney arguing the case says forcing someone to go to a shelter is a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. Some people, the attorney said, have legitimate reasons for refusing shelter. Some shelters aren’t adequate for various reasons, he said. One reason might be that some shelters offer religious services to which some people object.

Wow. Nearly full circle. It is illegal to use religious convictions to fail to provide certain services to private sector customers. Yet, at least according to this attorney’s claim, it would be perfectly reasonable to reject the use of a free bed and shelter for religious abhorrence reasons. How can both points of view be correct?


Hawkins is retired after 35 years as a construction industry association manager. He was a broadcast reporter and news anchor in Denver. As a Navy officer, he saw action in Vietnam in the River Assault Squadrons and is the recipient of a Silver Star and Purple Heart.

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Kay Brown 12:00am August 25, 2015

I'm really surprised that this seems to be a connundrum... it isn't one to me. The issue is that of having someone use their religious beliefs as a mean to impinge on someone else's. In the case of a public official, trying to say that their religious believe is a reason to control (refusal to offer required public service) another person's legitimate freedoms. In the case of a homeless person being required to submit to a homeless shelter's proselytizing in exchange for unwanted housing... well, same thing. Finally, using one's business as a means for exerting religious control, by providing services to some, but not all, is also unacceptable abridgement of religious freedom. One does have the right to worship as one chooses, free from government interference. One does NOT have the right to determine that others must also share in that religious view, which is what refusing service based on said religion is in effect doing. And those who are doing so, know it, but cry wolf anyways.

Michael Englehart 12:00am August 25, 2015

I believe that I read that both the baker and photographer attacks were setups. I believe that the judges who heard and decided those cases are criminally insane. Avoid attempting to use reason in trying to understand anything the left (Marxists) does or says.