Friday, January 20, 2012

Weasel Words

I've been reading the text of S-1/A-1, the latest attempt by the New Jersey legislature to redefine marriage, and I find the wording troubling. The bill purports to create equality for same sex couples who are currently being discriminated against by hospital visitation policies and employers' benefits.

I think the most troubling thing about this bill, for those who oppose or support same-sex relationships, is that it is deemed necessary at all. Under the current NJ civil union laws, P.L.2006 C103, same-sex couples are provided "the same rights and benefits as heterosexual couples who choose to marry" and now we are being told the law needs to be changed to provide same-sex couples with the same rights and benefits as heterosexual couples who choose to marry. But that language is already in the law. One has to ask why the existing law is not being enforced, and why should we expect a new law granting identical rights will be enforced any differently?

But there are also many important differences in the wording of the law. The existing law authorizes religious institutions (and others) to conduct same-sex civil unions. The new law requires that they do so, except for very narrow restrictions. The existing law states exemptions for [emphasis mine]:
any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution
any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization
The proposed law contains the following exemption:
no member of the clergy of any religion...shall be required to solemnize any marriage
any such religious society, institution or organization, or any employee thereof
The exemption for performing same-sex "marriages" only applies to clergy and employees. The definition of clergy is "ordained to perform pastoral or sacerdoatal functions." How would this apply to denominations that have non-ordained ministers or elders? In fact, the original text of the bill said ministers or clergy, but the word "minister" was removed. The second exemption applies only to actions of employees of religious organizations. Many (most) functions of many churches are performed by lay ministers who are not employees, and therefore they would not be protected under the law.

But all of this points to a bigger problem. The exemption is based on religious organizations, not on individual belief. I can refuse to support same sex unions if I am an employee of the Church, but as a member I have no protection under the law. For that matter, an atheist who believes marriage is the union of a man and woman has no conscience protection. If an exemption is allowable for belief, then it should be made on the basis of belief, not on employment. If an exemption is not allowable based on belief, employment should not matter.


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