NO GAYS OR CATHOLICS ALLOWED!

The Republican Party is considering trying to pass the First Amendment Defense Act (FADA) once Trump takes office. This Act, if passed as worded, will have some interesting and unintended consequences for Catholics–who, with the Act’s obvious target of gay people, could become legitimate targets of discrimination.

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The FADA “prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”

In Catholic canon law consecrated virgins and religious women (i.e., members of Catholic religious communities) are considered to be legally married to Jesus. (See Canons 604 and 607 in The Code of Canon Law.) The Catholic Church thus does not believe that  “marriage is or should be recognized as the union of one man and one woman” since it recognizes the polygamous union of Jesus with multiple consecrated virgins and religious women. Of course, since the law is written as a disjunct Catholic organizations who wish to discriminate against gay people (or single mothers) could always fall back on (2) “sexual relations are properly reserved to such a marriage”. They could argue that Jesus and his consecrated virgins and religious women don’t have the sort of icky sex that’s proper to those marriages that involve physical interactions. That sort of sex is reserved to the other sort of marriage.

So, Catholic organizations would get to discriminate against gay people and single mothers. But all is not rosy for conservative Catholics who might welcome this. This is because the FADA would prohibit the federal government from taking action against people or organizations that discriminated against Catholics. Imagine you’re a Protestant bakery (for example), and believe that marriage should just be between one man and one woman. Knowledgeable of Catholic canon law, you refuse to serve Catholics on the grounds that their religion allows polygamy. (Jesus with his harem of consecrated virgins and religious women.) Since your discrimination against Catholics is based on your religious belief that “marriage is or should be recognized as the union of one man and one woman” the FADA would prohibit the Federal government from taking action against you.

Of course, the persecution of Catholics in America is not new. So, maybe this will make the FADA even more appealing to some traditionalists. Just not traditional Catholics!

(With thanks to the law firm CLAMS: Canon Law Advocacy and Mediation Services, LLC for legal advice on canon law and its applicability to the FADA.)

 

  • Doug1943

    Surely the Libertarian position is: if you don’t want to hire someone, or sell them something, and you’re a private business, you shouldn’t be forced to do so by the state. Period.

    • James Taylor

      I agree completely with that! My post above was mainly aimed at certain conservative Catholics who might support the FADA not realizing that it would allow anti-Catholic discrimination.

      • Doug1943

        If you started to count the contradictions in conservative political positions, you’d be at it for days. The best one, currently, is the (absolutely correct) conservative demand for freedom of expression on campus. But … that wasn’t what they were saying in the 1950’s, when the suppression was directed against campus Marxists. And I still can’t work out whether the consensus conservative position is: Obama must be condemned for doing too little in Syria, or, Obama must be condemned for doing too much in Libya, or both.

        • A. Alexander Minsky

          Libertarianism is probably the only truly consistent political ideology. For some this consistency is a sign of principle, for others autism.

          In reality, it’s most likely a little of both.

          • Doug1943

            I think ‘consistent’ libertarians are like most educated Christians today. I don’t think my Christian friends really believe all that stuff about an invisible man in the sky who impregnated a woman, etc … and I don’t believe all the nice libertarians I know really want to auction off the National Parks. But it’s nice to have a consistent theory even if you don’t really, way down deep, believe it. Sort of like modern physics.

          • Sean II

            You think libertarians are consistent? Cure yourself of that by watching the people who argue with me. You will be entertained.

            Orthodox libertarian discussing student loans one day: “Education is just wasteful signaling.”

            Orthodox libertarian discussing urban poverty the next: “School choice is gonna change everything.”

            Or:

            Orthodox libertarian everyday: “Interpersonal violence is the one thing we must not tolerate.”

            [13 people got shot by a criminal] Orthodox libertarian: “Meh. In the grand scheme of things, this is totally insignificant. The real story is how safe we all are.”

            [1 criminal gets shot by a cop] Orthodox libertarian: “Disgusting! People live whole lives of fear because of outrages like this. The system must be radically changed.”

            Hell, just the other week I had a guy tell me “big government ruined Detroit”, then turn around five minutes later and say “the problem with Detroit is it has no tax base”. The strange assumption contained here is, what…that government gets smaller when you give it more money?

            Which is to say: libertarians aren’t really consistent, in the sense in which consistency is a virtue. Rather, they conure up a false appearance of ideological consistency at the cost of being serious muddle-heads when dealing with empirical reality.

          • A. Alexander Minsky

            I always enjoy reading your posts. I very much appreciate the fact that you are a libertarian who spends much of his energy interrogating other libertarians as opposed to constantly railing about the evils of “socialism” and “statism”.

            I suppose it is possible to argue that while many libertarians are inconsistent, libertarianism can still be considered a consistent ideology. It is questionable ,at the very least, if your hypothetical orthodox libertarian was being libertarian when arguing for school choice (in the form of government issued vouchers) or an expanded tax base.

          • Sean II

            Well, you know the old joke:

            If you ever meet two libertarians who agree on anything, you can be sure one of them has sold out.

          • A. Alexander Minsky

            Very good.

            During my leftist days, I spent some time in Trotskyite circles. As you may know, Trots are famous for their constant organizational splitting and schisms. The following joke sums up the situation: What do you get when you lock two Trotskyites in a room? Three parties.

          • Sean II

            I don’t think anyone has done this yet, but there is much potential for an alternate history tale to be written on the following premise:

            Trotsky defeats Stalin in the struggle for power, and in accordance with his belief in world revolution-or-nothing, he optimizes the Red Army for offensive action in Europe, starting World War II in 1936.

            Given his success in the Civil War (and assuming he avoids many of Stalin’s most frivolous errors), it’s easy to imagining him making it all the way to the Rhine right at the open. The fun part, of course, would be fleshing out all the mistakes Trotsky makes as a result of his deluded hope that class consciousness could triumph over nationalism.

          • A. Alexander Minsky

            If Trotsky had won his power struggle with Stalin, I wonder if there would be scores of squabbling sectarians calling themselves Stalinists and arguing that a democratic socialism would have been constructed in the USSR if only the mustachioed one had ascended to supreme leadership.

            Love your idea for a novel, by the way. I don’t think there is much alternative history written concerning the Stalin-Trotsky feud.

          • Doug1943

            There would be a few such sects, as there are around almost any convceivable ideology or religion, but not very many. The attraction of Stalinism was not its ideology (it hardly had one), but its power. No power, no attraction.

            The ideology of Trotskyism appears, in contrast, to be a complete system for explaining, and changing, the world — subject, however, to a multitude of interpretations. Thus young people wanting to bring Utopia to our sad old world are attracted to one or another variant of Trotskyism.

          • Doug1943

            (1) Why 1936?

            (2) I don’t believe it is the case that Trotsky advocated simply spreading socialism via the Red Army, except where it would be an auxiliary to one side in a domestic civil war. That would be the orthodox Marxist position, iat any rate. Of course, how strong the side one is intervening to support actually is, or could be with one’s help, is always a tricky question. (The Americans seem to have been getting it wrong since Vietnam.)

            Wishful thinking about the revolutionary tendencies of the Polish workers was probably one factor in causing the Bolshevik leadership to turn their defensive war in 1920 against Polish invasion into an offensive one, with the aim of taking Warsaw. Trotsky was more skeptical, both about these whether these tendencies among Polish workers would survive when faced with an invasion by Russians, regardless of the Russians’ politics, and also about the military capacity of the Red Army at that time. In any case, I don’t believe that “Trotsky the adventurist” (an old Stalinist canard) is historically accurate.

          • Sean II

            Man I kinda feel like…if you make a piece of alternate history fiction too accurate, it’s just called history.

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      • Theresa Klein

        Does anyone you know, or have ever heard of, actually have a religious objection to nuns? Or are you just imagining the existance of people who might hypothetically interpret catholic doctrine in this bizarre way?

    • j_m_h

      While I do have some reservations about the concept of free association in the context of a public setting (commerce for example) I’m not so concerned on that point alone. However, the claim in isolation is problematic as the positions is basically I get my cake and eat it too when considering the benefits given to corporations (even small ones) by law.
      I’m perfectly fine with the “I’ll sell to whom I choose and no one should be able to force me to sell to those I don’t wish to” when we also say but the cost for that freedom is giving up all the special protections, such as limited liability and special tax rates….

      • Doug1943

        I agree completely. If you want special treatment from the state, you’ve got to do what the state wants you to do. Of course, this assumes that the ‘special treatment’ really is that, as opposed to, say, something like a 90 percent tax on profits, except for those who ‘voluntarily’ opt for the ‘special tax break’ available to those who obey state directives.

        • Farstrider

          Almost every corporation or other legal entity (LLCs, LLPs, etc) gets actual special treatments from the state. That’s why they exist in the first place. So, your exception would swallow the rule – leaving only individual people, sole proprietorships and partners immune to public accommodations law.

  • Jim Roman

    Expanding on this just a bit … Can. 604 §1 uses the generic term “virgins” and does not specifically refer to females. Males can be be virgins as well. Can. 606 says that these laws apply equally to men and women. So, it would seem that Canon Law would consider groups of male monks to also be betrothed to Christ — in effect endorsing homosexual group marriage. This gets better and better.

    • j_m_h

      Well I think the Bible has a few places where things like “All things are possible with my Father” and “Nothing is evil except the thinking makes it so” (or something like that). I’ll never understand any of the three religions insistence that they are the only true religion and have god in a can while also claiming god is infinite, omniscient and omnipotent while we’re blind, ignorant children in comparison. You’d think most would realize that the organization claiming to own the god truth must be corrupt when it fails to accept their own texts at face value and just settle for such religions being personal faith about how one should live his or her own live and not how they should make others live.

    • James Taylor

      I believe that the term “virgins” is there being used to apply to consecrated virgins who are women married to Christ as consecrated virgins, rather than as religious women.

      There is a case to be made, however, that if Catholicism recognises marriage as transitive then consecrated virgins and religious women are in gay marriages with each other.

  • King Goat

    This law takes one religious conviction out of a possible myriad and gives it especial protection. It’s the equivalent of a crony capitalist tax or regulation exemption for a single business in a field.

    • Lacunaria

      Civil rights law itself only grants special protection to select classes. This carves out an exception to special protection given the conflict between government interference in private religious beliefs and modern interpretations of 1A.

      • King Goat

        Tax laws only apply taxes to select classes, and crony capitalist tax exemptions carve out exceptions to special taxation of these classes.

        • Lacunaria

          Not all tax laws apply taxes to select classes and the ones that do may be immoral. Of course, crony capitalist tax exemptions are immoral by definition, but what part of your analogy corresponds to a conflicting constitutional freedom?

          Your analogy doesn’t quite work.

      • Farstrider

        Civil rights law itself only grants special protection to select classes.

        Not sure what you mean by this. Civil rights law protects actions motivated by particular reasons, such as race, sex, etc. But it does not protect or favor one race or sex over another.

        • Lacunaria

          Right, excepting things like Affirmative Action.

          As you note, what’s “special” is which classes are chosen. Minorities of an excluded class without a loud enough voice don’t make the cut. Ironically, they first need a majority to agree with them before they are protected.

          • Farstrider

            You are confusing two different issues. Affirmative action is not civil rights law. They are two different things. But you are correct with respect to affirmative action.

          • Lacunaria

            Fair enough that Affirmative Action is a different category, but my answer also applies to civil rights laws — they only include certain classes, thereby excluding minorities in excluded classes from special protection.

          • Farstrider

            Yes, civil rights laws are designed to prevent decisions made on certain grounds, while permitting decisions made on other grounds. For example, you cannot be passed over for promotion because of your race, no matter what race you are, but you can be passed over because you show up late for work, and you can be denied the right to vote because of your criminal conviction but not your religion. In this context, you are right that convicts and late arrivals are “excluded classes from special protection.”

  • Jerome Bigge

    May I say that those who believe in “discrimination” may find themselves discriminated against…

    There is a “law of unintended consequences” that tends to “bite back” when people ask “government” to do what they want to other people.

    The best way to avoid this is to limit the role of government to the minimum necessary.

  • Dan045

    Two thoughts:

    First, I was really hoping we’d get further out of the gate before derailing.

    2nd, I’m not sure if I trust the left leaning “salon” to report accurately what the GOP is “considering”. They’re still hyperventilating over all of Trump’s picks.

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  • martinbrock

    If the First Amendment protects speech only after an act of Congress specifically shields the speech, then the First Amendment is meaningless.

  • Theresa Klein

    Surely this isn’t meant to be taken seriously.

    There aren’t any protestant groups who have ever, to my knowledge (maybe you can dig something up?), expressed any objection to nuns being “polygamously” married to Jesus. You’re hyposthesizing the existance of a religious objection for which there is no evidence actually existing in the minds of any actual religious people.

    Maybe next time you can write a post hyperventilating about the possibility of mass descrimination against “gingers” or old ladies with blue hair.

    • James Taylor

      I think that you have missed the point of the post.

      • Theresa Klein

        If you’re trying to make the point that the way the law is written can be used to justify discrimination on the basis of religious objections to other religions beliefs, it would probably help to pick a real example of such, since there’s essentially an infinite number of possible religious beliefs, and the law can’t really be designed around hypthetical beliefs that nobody actually holds.

        • James Taylor

          Catholics (or, at least, Catholics who are aware of their own legal code!) hold the beliefs that I correctly attribute to them, above. This IS a real example.

          • j_m_h

            Well, in all fairness isn’t the marriage between one god (or is it 3?) and many virgins rather than one man and many women (or even one woman and many men but there’s not too much of a historical basis for that in the religious texts I don’t think).

          • Theresa Klein

            The belief that doesn’t exist is your hypothesized protestant religious objection to Catholics’ “marriage” between nuns and Jesus.

            No protestant, to my knowledge, has ever claimed a religious objection to nuns being ‘married’ to Jesus, or claimed that’s a form of illegal polygamy.
            Hence, there’s no reason to believe that any actual protestants would actually target Catholics in this way. No protestants hold the beliefs that you attribute to them .

          • James Taylor

            Really? NO Protestants hold these view? Have you asked all 30 million or so of them, in the United States? Also, as I’ve said above, this is a mainstream view of Canon law, not a bizarre one. And the point–which you seem continuously to miss–is that the FADA as written could readily be used to justify legally allowing discrimination against Catholics. I’m just utterly perplexed as to why you continue to resist this.

          • Theresa Klein

            Now you’re being ridiculous. if you’re going to assert that Protestants might discriminate against Catholics on this basis, it’s your job to show that there are actually some protestants who actually might do that. It’s not my job to prove that they don’t exist. My whole point is that there’s no evidence that any protestants actually believe that nuns being “married” to Jesus amounts to immoral polygamy. If you disagree, go find some protestant writings somewhere saying so. Sheesh.

          • James Taylor

            Again, I think that you misunderstand the point. The argument is this: “Law X is intended to realize goal Y. Law X could also be used to realize goal Z. You might approve of Y, but oppose Z. Therefore you should be wary of Law X.” Saying that you oppose Z but support X because thee is no evidence yet that it will be used to realize Z is just to miss the point. But I think I’m done here–I don’t think that there’s much value to be gained from further interaction.

  • CJColucci

    So what counts as federal “discriminatory action” against someone for those specified religious beliefs? As far as I know, most things that the law recognizes as “discrimination,” like refusing to hire someone or to provide public services or public accommodations on account of all sorts of religious beliefs, are already barred by existing law.

  • bja009
  • SimpleMachine88

    Yeah, look, this argument has been around before, and it really has no basis in actually Catholic practice. They’re different sacraments. It’s something that gets brought up by the same people who want to bring up “The Protocols of the Elders of Zion”. I suppose if you’re terribly worried about lurking know-nothings than I suppose that might be something to think about, otherwise not.

    Somewhere there’s an article that’s waiting to be written about the history behind removing the government from controlling marriage, and why that was so important. The opposition to the Test Act, and the Crown’s Anglican control over marriage law in the colonies, was a major reason for the American Revolution, and the first Amendment, as well as of course being of critical importance to most of the denominations in this country. It’s a part of the Enlightenment that actually owes a lot to religious men, from all the way from John Calvin to Quakers, Methodists, and general Jeffersonish backwoods American Christianity, etc. There’s also a certain amount of anti-papism there too of course, but eh.

    • Theresa Klein

      Good comment. I think Catholics’ response to the contraception mandate was not really so much about contraception per se, as it was about the idea of commanding something to do something that violates their religious beliefs. Of course because of the long history of conflict between Catholics and protestants, one would expect both sides to be sensitized to the idea of forced adherence to, or non-adherence to, some aspect of faith. What surprised me was that relatively few protestants seemed to take this seriously. Even if one doesn’t have a moral objection to contraception (and I don’t), surely one can understand and sympathize with a person not wanting to be compelled to act against that belief. It continues to strike me as deeply callous to treat the issue as stupid or trivial.

      • James Taylor

        “….which established certain traditions like equality under the law and the rule of law (even rulers were subject to the Church/God)…”

        Canon law EXPLICITLY disavows both of these concepts!

        And given that the Catholic legal system is set up as a anti-voluntarist monarchy with no right to exit and no voice for the majority of its members, I’d be *very* surprised if it could in any sense be considered libertarian.

        • Theresa Klein

          I’m saying it’s a short step from “all rulers are subject to the Church/God” to substituting ‘Law’ for ‘Church’. Moreover, in Catholic religious doctrine Kings are judged the same as Peasants (camels and needles and all that), and it’s a pretty short step from ‘equality before God’ to ‘equality under the Law’.

          But maybe it’s just the general concept of interpreting things from scripture and trying to be philosophically consistent, as opposed to changing the rules based on political expediency that makes Catholics good justices. The libertarianishness is in the attempt to be consistent and just, not in the specifics of the doctrine.

          • James Taylor

            You do realize that Catholicism is one of the *least* internally consistent religions, don’t you? Canon law doesn’t even make a pretence of internal consistency. Have you actually *read* any canon law, or consulted with canon lawyers?

            And to hold that there’s just a small step from “Church/God” to “Law” is utterly bizarre.

      • Farstrider

        Even if one doesn’t have a moral objection to contraception (and I don’t), surely one can understand and sympathize with a person not wanting to be compelled to act against that belief.

        This framing always has been incorrect. No employer is compelled to act against his belief by giving his employee the option of acquiring birth control. There is no coherent doctrinal difference between an employer giving an employee money, with which she is may buy birth control, and an employer giving an insurance company money, from whom an employer may buy birth control. What the employee does with the employee’s wages is simply not the employer’s concern – and recognizing that employees have the freedom to make their own decisions about their health care does not burden the religious rights of the employer in any way.

        Or put another way, it is a burden only to the extent the employer’s religion requires him (and it is always a him) to interfere in the freedom of his female employee. That is what this debate has always been about, and that is not a religious tenet that deserves any protection at all.

    • James Taylor

      “Yeah, look, this argument has been around before, and it really has no basis in actually Catholic practice. They’re different sacraments.” Actually, secular Catholic marriages and consecrated virgin/religious marriages to Jesus are in canon law *legally* the same, in both the 1917 and 1983 Codes. I linked to the canons above!

      • Theresa Klein

        So what? Protestants aren’t required to take Catholic canon law seriously.

        • James Taylor

          No, they’re not. My sole point as that they could, if they wished, under the FADA use it to justify legal discrimination against Catholics.

          • SimpleMachine88

            I think it would be a lot easier to discriminate against them for the “hate speech” of thinking they were the one true and holy apostolic church. There are a lot easier avenues to try to get legal cover for being a crazy anti-papist than this. I’m just not concerned about republicans purposely misreading laws to discriminate against Catholics, certainly less than about living constitution culture warriors.

      • SimpleMachine88

        Okay, and every church that follows the Westminster Confession accepts that the pope is the “antichrist”. That’s technically accurate, but that doesn’t in any way describe Protestantism today.

        It’s the kind of thing that people bring up to try to make people stupider, relying on not explaining the meaning of the word “antichrist” in Protestant theology, and pretending that obscurantist dogma is the same as the actual practice of religion in the real world.