The nexus of Gay Marriage and the 1st and 14th Amendments; hypo request

[Torie]

There has been some discussion of the interplay of gay marriage, and the free exercise of religion clause, and the equal protection clause being used to shave back the free exercise clause.

My request is a narrow and simple one. I would like a list of hypotheticals of situations where this matter is in play other than the example of the personal or religious institutional enmeshment in the gay marriage solemnization ceremony itself.  I am looking primarily for bullet points, although opinions of how each of the bullet points should be resolved, would be welcome as well if you so choose.  

Have I made clear what I am requesting here?  Let me try to prime the pump. As hypos are added below, I may copy and past them in this post (with some paraphrasing perhaps). Let me emphasize that just because you add a hypo, does not mean you think it has any merit. For example, my first hypo that I am going to list I think is meritless actually. And the first hypo is (the envelop please):

1.  A sole proprietor of a candy store under legalization of gay marriage would be forced to provide medical insurance benefits to a gay spouse violating his religious scruples regarding his religious belief that gay marriage traduces the laws of God.

[King]

He would be highly unlikely to hire a gay employee if his views were so strong.

[Torie]

He would be highly unlikely to hire a gay employee if his views were so strong.

Itself a violation of law in many states, including states in which gay marriage is not legal. The hypo need not necessarily be one however, that will occur very often. What we are looking for here are unifying and differentiating principles, as part of the process of pondering in which box to put each hypo. Where are the similarities which are important, and what are the differences that are important? This is how lawyers and the legal mind works when approaching issues such as this. I am giving a little "seminar" on this process for you, and doing it all for free to boot, because I am just so eleemosynary.  

[Grumpier Than Uncle Joe]

He would be highly unlikely to hire a gay employee if his views were so strong.

Itself a violation of law in many states, including states in which gay marriage is not legal. The hypo need not necessarily be one however, that will occur very often. What we are looking for here are unifying and differentiating principles, as part of the process of pondering in which box to put each hypo. Where are the similarities which are important, and what are the differences that are important? This is how lawyers and the legal mind works when approaching issues such as this. I am giving a little "seminar" on this process for you, and doing it all for free to boot, because I am just so eleemosynary.  

Don't sluff off what Kind said so quick, old man.  Employers (especially small employers) will not hire someone they even think is gay if they're concerned about giving out benefits to a gay couple.  Skirting discrimination laws is a breeze when you're careful.  

[DC Al Fine]

I'll try one Torie based off of an actual case in Canada.

A gay couple wishes to rent a church for their wedding (Justice of the Peace officiating) and are turned down by the church because its religion doesn't approve of SSM.

[Torie]

I'll try one Torie based off of an actual case in Canada.

A gay couple wishes to rent a church for their wedding (Justice of the Peace officiating) and are turned down by the church because its religion doesn't approve of SSM.

Excellent.  However, that comes down to the scope of what one considers excessive institutional religious enmeshment in the gay marriage solemnization ceremony itself that deserves religious protection. I was going to get to that after we finished the task I outlined above.

Another category here is renting out an adjacent building to a church in which the church hosts various social or charitable functions, and once in awhile will rent it out to the Boy Scouts or whomever when not in use by the Church. Or how about a building a church owns down the street that is rented out all the time, and thus does not have 501(c)(3) status? It's a church run business as it were.

And then we have a photographer who does not want to film the party after the ceremony, and since he is the only guy in the bush country of Alaska that does such things, that means the happy same sex couple will be unable to secure a professional photographer and do without.  

Or the clerk behind the counter of the court office issuing marriage licenses, who does not want to issue one, and the other clerk who is willing to issue one, is on vacation, and won't be back for a week. Or how about just out for lunch, so one needs to wait for an hour?  

These hypos may be more difficult than ones dealing with how gay couples are treated after they are married. But I would like a list of the post ceremony issues that folks think might be in play here by somebody.

[Torie]

He would be highly unlikely to hire a gay employee if his views were so strong.

Itself a violation of law in many states, including states in which gay marriage is not legal. The hypo need not necessarily be one however, that will occur very often. What we are looking for here are unifying and differentiating principles, as part of the process of pondering in which box to put each hypo. Where are the similarities which are important, and what are the differences that are important? This is how lawyers and the legal mind works when approaching issues such as this. I am giving a little "seminar" on this process for you, and doing it all for free to boot, because I am just so eleemosynary.  

Don't sluff off what Kind said so quick, old man.  Employers (especially small employers) will not hire someone they even think is gay if they're concerned about giving out benefits to a gay couple.  Skirting discrimination laws is a breeze when you're careful.  

Indeed, but I think inapposite to the task at hand Grumps for the reasons that I outlined. We are doing an intellectual exercise here. That is the way well crafted laws (and court decisions) are fashioned.

[True Federalist (진정한 연방 주의자)]

1.  A sole proprietor of a candy store under legalization of gay marriage would be forced to provide medical insurance benefits to a gay spouse violating his religious scruples regarding his religious belief that gay marriage traduces the laws of God.

There are multiple reasons why in my ideal society, this could not happen.  However, we're dealing with the real world, not an idealized one.  The first amendment does not apply here unless there is some unknown to me religion which includes the selling of candy as one of its religious rituals.  Nor does the fourteenth amendment.  This is a straightforward application of the commerce clause under the same interpretations that makes constitutional Title VII of the Civil Right Act of 1964.  I am presuming that this sole proprietor wants to offer medical insurance benefits to the hetero spouses of his employees.  The Obamacare decision made it fairly clear that being required to provide or obtain medical insurance in general is only constitutional in so far as the penalty for doing so is in the form of a tax.

I'll try one Torie based off of an actual case in Canada.

A gay couple wishes to rent a church for their wedding (Justice of the Peace officiating) and are turned down by the church because its religion doesn't approve of SSM.

Excellent.  However, that comes down to the scope of what one considers excessive institutional religious enmeshment in the gay marriage solemnization ceremony itself that deserves religious protection. I was going to get to that after we finished the task I outlined above.

Another category here is renting out an adjacent building to a church in which the church hosts various social or charitable functions, and once in awhile will rent it out to the Boy Scouts or whomever when not in use by the Church. Or how about a building a church owns down the street that is rented out all the time, and thus does not have 501(c)(3) status? It's a church run business as it were.

And then we have a photographer who does not want to film the party after the ceremony, and since he is the only guy in the bush country of Alaska that does such things, that means the happy same sex couple will be unable to secure a professional photographer and do without. 

Or the clerk behind the counter of the court office issuing marriage licenses, who does not want to issue one, and the other clerk who is willing to issue one, is on vacation, and won't be back for a week. Or how about just out for lunch, so one needs to wait for an hour? 

These hypos may be more difficult than ones dealing with how gay couples are treated after they are married. But I would like a list of the post ceremony issues that folks think might be in play here by somebody.

Absent laws to compel the engagement in commerce, there should be no difficulty in refusing to do any of these things, except for the marriage license clerk refusing to do eir job.  However, under the same expansive commerce clause powers already in use, I see no constitutional difficulties for a law requiring people to engage in such commerce with everyone if they choose to engage in it at all.

Not that I think there should be such laws, but the constitutionality of them is supported by ample precedent.

[Torie]

You need to deal with the equal protection clause. There are the two constitutional rights in tension, plus how they interact with a gay marriage law. Does a church run business that refuses to rent to gays for their marriage violate that clause, or is it protected by the religious liberty right?  Does a church run business have a right under the free exercise clause to refuse to rent the facility for a gay marriage?  Or in the facility that is sometimes rented out to organizations? If not protected constitutionally, should they be allowed to?

[True Federalist (진정한 연방 주의자)]

You need to deal with the equal protection clause. There are the two constitutional rights in tension, plus how they interact with a gay marriage law. Does a church run business that refuses to rent to gays for their marriage violate that clause, or is it protected by the religious liberty right?  Does a church run business have a right under the free exercise clause to refuse to rent the facility for a gay marriage?  Or in the facility that is sometimes rented out to organizations? If not protected constitutionally, should they be allowed to?

If the business is not in some way connected to the religious mission of the religion, then the current constitutional jurisprudence is that yes the government can use its commerce power to require them to do those things, but whether it does require them to do those things is a political question to be decided by the legislatures, not a judicial one decided by the courts.  In none of the examples given here was there mention of that business being related to the mission of the organized religion in question.

[Torie]

You need to deal with the equal protection clause. There are the two constitutional rights in tension, plus how they interact with a gay marriage law. Does a church run business that refuses to rent to gays for their marriage violate that clause, or is it protected by the religious liberty right?  Does a church run business have a right under the free exercise clause to refuse to rent the facility for a gay marriage?  Or in the facility that is sometimes rented out to organizations? If not protected constitutionally, should they be allowed to?

If the business is not in some way connected to the religious mission of the religion, then the current constitutional jurisprudence is that yes the government can use its commerce power to require them to do those things, but whether it does require them to do those things is a political question to be decided by the legislatures, not a judicial one decided by the courts.  In none of the examples given here was there mention of that business being related to the mission of the organized religion in question.

You may have a rather constricted view of the reach of the equal protection clause here, but otherwise I think I agree. The trick here is that giving gays access to the full scope of the marriage laws, rather than some inferior status, may well trigger the equal protection clause. That is where much of the sound and fury from anti-gay marriage advocates comes from. That needs to be dealt with, along with all of the other considerations, as one works through all of this, to get the right - and fair - balance to my mind.

[True Federalist (진정한 연방 주의자)]

You may have a rather constricted view of the reach of the equal protection clause here, but otherwise I think I agree. The trick here is that giving gays access to the full scope of the marriage laws, rather than some inferior status, may well trigger the equal protection clause. That is where much of the sound and fury from anti-gay marriage advocates comes from. That needs to be dealt with, along with all of the other considerations, as one works through all of this, to get the right - and fair - balance to my mind.

It can't trigger the equal protection clause, save in the case of that wedding license clerk, unless the Supreme Court overturns the Civil Rights Cases (1883), which is unlikely since it reaffirmed them at least as recently as United States v. Morrison (2000). The equal protection clause under current constitutional law applies only to governmental actions.  When challenged, titles II and VII of the Civil Rights Act of 1964 were upheld as use of the commerce clause power to regulate private actions, not because of the equal protection clause.   See for example Heart of Atlanta Motel v. United States (1964).  The commerce clause is a different pathway to achieve the same goal, and one only made possible by the expanded scope given to the commerce clause since the 1880s.  However, it does mean that any such use must be explicitly legislated rather than imposed by the courts as might happen under the equal protection clause.

[Small Business Owner of Any Repute]

My thought is that you'll have widespread discrimination at the open, followed quickly by government action prohibiting such discrimination. The whole affair will get shut down pretty quick, because the public won't be able to stomach it, especially one accepting of gay marriage.