AN ACT Relating to providing equal protection for all families in Washington by creating equality in civil marriage and changing the domestic partnership laws, while protecting religious freedom. . . . [Emphasis mine]
But, as always, the devil is in the details.
Section 4 (2) of the proposed legislation says that:
No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any church or religious denomination is required to solemnize any marriage.
Sounds good, right? The Section goes on to say that:
A refusal to solemnize any marriage under this section by a regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any church or religious denomination does not create a civil claim or cause of action. . . .
It doesn’t create a civil claim or cause of action. A civil claim is when one private person (or group of people) sues another private person or group. Notice that the Section is silent on whether a refusal might create any other kind of legal claim.
Now let’s go to Section 7:
(1) Consistent with the law against discrimination, chapter 49.60 RCW, no religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage unless the organization offers admission, occupancy, or use of those accommodations or facilities to the public for a fee, or offers those advantages, privileges, services, or goods to the public for sale. [Emphasis mine]
(2) A refusal by any religious organization to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage does not create a civil claim or cause of action unless the organization offers those accommodations, facilities, advantages, privileges, services, or goods to the public in transactions governed by law against discrimination, chapter 49.60 RCW. [Emphasis mine]
Sounds pretty innocuous, but remember: The devil is in the details.
That little word unless in paragraph (1) is a hole big enough to drive a Mack truck through. Most churches have some procedure whereby at least some people who aren’t parishioners can rent their building and hold a wedding in it. Many churches hold occasional fundraisers on church property. All those churches could be sued under that one “unless.”
But that’s small potatoes compared to the opening clause, which brings all churches in the state for the first time under the purview of Chapter 60 (which deals with the State Human Rights Commission) of Title 49 (Labor Regulations) of the Revised Code of Washington. That’s important, because the Human Rights Commission (HRC) doesn’t function in the civil law arena. It functions in the arena of public and administrative law. According to the HRC website,
If the Commission finds that there is reasonable cause to believe discrimination occurred, we will seek conciliation of the complaint. Appropriate remedies in the conciliation process may include back pay, reinstatement, rent refunds, or training to eliminate the unfair practice. If conciliation fails, the complaint may be turned over to the Attorney General’s office for hearing before an Administrative Law Judge.
So. There’s no ground for a civil claim unless the church offers its facilities, services, etc. to the public in situations over which the HRC has jurisdiction. And the HRC just happens to have jurisdiction over, let’s see, anything having to do with employment (of more than eight people), housing, real estate, places of public assembly, credit and insurance.
Can you think of a church with no connection to any of those things?
The religious freedom the bill claims to give with one hand, it quietly and completely takes away with the other.
Now. Let’s go back to the ministers, priests, imams and rabbis. If one of them refuses to solemnize a marriage, it doesn’t create a civil claim or cause of action.
But, just as with the churches, this bill leaves the door wide open for the pastor to be pursued by the Human Rights Commission and the Attorney General. Sure, the next step after the HRC would be the relatively low-level Administrative Law Judge (ALJ)–where, by the way, evidentiary standards are relaxed–but an appeal of an ALJ case goes straight into the mainstream Superior Court system. Bam.
Not only do many pastors refuse as a matter of conscience to marry gay couples. Many also refuse as a matter of conscience to marry couples where one party has been divorced, where one party is of a different faith than the other, and so on.This would leave no conscience clause in any of those cases.
Follow the money. This law would force pastors, rabbis, imams, churches, synagogues and mosques to choose between marrying couples they don’t in good conscience believe their God permits them to marry, or being taken to court and bankrupted.
The couple in question, of course, can always go find another place and another officiant. The pastor and the church, though, have no such easy way out.
So much for protecting religious freedom.
This is only one of a number of problems with this bill. I’ll be posting more about it soon. In the meantime, please consider sharing this with everyone you know who loves the First Amendment and values religious freedom.