LGBT News Ohio LGBT groups cannot decide on the timing of marriage equailty.

Gay rights groups won't support Ohio gay marriage amendment

National gay marriage advocates will not support 'Freedom to Marry' amendment slated for 2014 election

This is a stupid move, IMO. The religious exemption is the only way gay marriage will pass in Ohio, and I personally wouldn't support anything without it. Hospital visitation rights aren't really an issue anymore since federal regulations now require hospitals to allow same-sex partners visitation rights.

Support for gay marriage is split in Ohio, but it goes up to 56% when the religious exemption is emphasized. FreedomOhio already has enough signatures to put the measure on the ballot in November, and I think support will only go up in the coming months. I just don't see what is gained by refusing to support this amendment.

EDIT: I didn't realize somebody already posted this. My bad.

 

I ... can see their point, actually. The information in the article presents the exemptions as written to be far too broad. I'd be interested in seeing the actual language in the proposed bill.

A marriage equality law that grants a total exemption across the board to any "religious institution", including hospitals run by, say, the Catholic Church, is in my opinion too loose, too nebulous, and does create the potential for HUGE legal hurdles for LGBT couples. While federal law requires hospitals to allow visitation by same-sex partners, I'm unfamiliar with how well it protects those partners' ability to make legal decisions regarding care on the patient's behalf. I can see the potential for severe problems there in the event of a dispute between, for example, a parent and a same-sex spouse if the patient were under the care of a faith-based hospital covered by a too-loosely-written religious exemption.

I saw another proposed amendment recently (don't recall the state), where the religious exemption was equally broad and poorly written, including religious institutions, organizations, businesses, and individuals. It left open the possibility for pretty much anyone to refuse any service to LGBT customers based on religious grounds, the only concession being that in a non-religious business, a manager must find another employee willing to provide the service. That is simply far too general and leaves room for a lot of unnecessary law suits and problems.

All that being said... these marriage equality laws absolutely DO need exemptions allowing individual clergy and houses of worship to refuse to perform or acknowledge marriages that directly conflict with their religious beliefs, without fear of being sued. I for one would be deeply disturbed to see a clergy-person of ANY faith compelled by the government to officiate a marriage ceremony that violated that person's beliefs, no matter how misguided I personally consider those beliefs to be. And before anyone gets their panties in a bunch, why would you want an officiant at your wedding speaking words over you and your beloved with a sour expression and no sincerity, knowing they had been forced by the law to agree?

My right to swing my fist stops where the other guy's nose begins. When we start talking about using the law to compel individuals to violate the tenants of their faith, using government to dictate the behavior of houses of worship within their own space, we cross that line.

 

Actually you don't even need to be married to make legal decisions for a partner in Ohio, or in some other states. You can do either a DPOAH (durable power of attorney for health care) which allows someone, related or not, to make health care decisions on your behalf if you cannot make them on your own, AND OR a financial POA, with the same conditions. The obvious problem with this is it's like a will, you usually need to do it before something happens.

My former partner and I had our legal paperwork made right before she got deployed, just in case the worst happened. If we would've been legally allowed to marry, we wouldn't have needed the power of attorney forms. In her case the ARNG lawyer helped her with all of it for free, but for a civilian it might take an attorney, I don't know.

 

Thanks for that, I wasn't aware. It does support one of the points I was going for, though... The exemption as written is far too generalized, if it would require such paperwork as you've described to fight. As written, a faith-based hospital could refuse even a married partner's right to make medical decisions on the part of a spouse on religious grounds, with that exemption as cover, potentially even over/above such POA paperwork. It's a legal battle no one should have to face. That's why any religious exemptions to marriage equality legislation need to be very narrowly defined to cover only ordained clergy and actual physical houses of worship, and specifically to exclude hospitals and other such public service businesses and institutions.

I would be horrified to find that a homeless shelter or soup kitchen turned away a gay couple on a freezing cold night for no reason other than "your relationship is contrary to our religion", and got away with it because of a broadly written loophole in marriage equality legislation. I'm a Christian, my faith is bedrock in my world, and that sort of bigotry and ignorance turned my stomach even before I was aware I wasn't exactly what my high-school called "sexually righteous". But I would be equally dismayed to see a minister forced by threat of law to violate their conscience.

 

NobleCrown hit the nail on the head.

It's disturbing to see the LGBT community infighting with each other in Ohio, as this will obviously lead to problems down the road. (They are literally calling each other names at this point - there are obviously too many egos involved.)

However, as NobleCrown and Equality Ohio pointed out too broad of an exemption for religion could be disastrous. It could actually put us in a worse position, legally and strategically speaking. If we just let things play out in the courts, where we are virtually guaranteed a win at this point, we'll get there without spending money to fight for the amendment AND without being encumbered with the religious exemption.

Let's be clear. The First Amendment protects places of worship and their religious leaders. The government cannot, for example, force a Catholic Priest to perform the marriage of a gay couple within a church. For all intents and purposes the priest is a private citizen, and as part of his freedom of speech he has the right to oppose any marriage - not just same sex marriage.

It's perfectly legal today for a Rabbi to refuse to marry a Jew to a Non-Jew. It's also perfectly legal today for a racist church to refuse to marry a interracial couple. In fact, it's perfectly legal for a church to discriminate on virtually any grounds under the guise of religious freedom and free speech.

As a result, adding a religious exemption is redundant at best, and potentially harmful at worst. We do not want a Catholic hospital to be able to discriminate. We also don't want a business like the Hobby Lobby to discriminate, for example: denying LGBT people employment on religious grounds, or denying same sex couples equal health benefits under their plan - even as they extend it to opposite sex couples. We don't want businesses to be able to deny LGBT people the ability to do business with them on the basis of their sexual orientation or gender identity.

Therefore, we need to be VERY careful what we decide to enshrine into law, especially if we're putting it into a Constitution. The last thing I want is to give a bigoted judge some wiggle room to rule against us.

 

Exactly. A couple of "what if" scenarios, assuming that the amendment and exemption as written are signed into law.

Scenario #1:

A lesbian couple, legally married, say they're both Catholic. Let's say they went the extra step and got the POA paperwork that technically they no longer need because their marriage is now legally recognized, right? One partner is in an accident, sustains life-threatening injuries, and because they are practicing Catholics, the wife has the ambulance bring her to a Catholic hospital. She winds up in a coma with no sign she will ever wake, but with enough brain stem activity that pain signals are still getting through. Even if by some miracle she does wake up, she'll be trapped in a useless body, conscious and in pain, but with no ability to speak or move or care for herself in any way.

The patient's parents show up. The parents want life support maintained, while the living wife says "no, she doesn't want to live like that, let her go". Or, make it even better, flip it around, with the parents saying to let their child go and the wife insisting on indefinite maintenance support. Now, I just checked with my husband (raised Catholic, considered going into the priesthood at one point). Under the circumstances described above, a Catholic hospital would not be in favor of maintaining life support, because it represents what is in their faith an unacceptable suffering and quality of life.

The hospital is covered by the religious exemption as written, so they are not bound to recognize the lesbian wife as next of kin. It's entirely possible that the administrators dealing with the situation may even decide that the exemption overrules the POA. (Because, let's face it, it's not the admins' job to care about what is right, makes sense, or is best for the patient. Their job is to keep the hospital from getting sued, simple as that.) So, having made that judgment call, and with their faith telling them that it is wrong to keep that poor woman alive when she is only going to suffer for the next fifty years, they overrule the wife, accede to the parents' wishes, and pull the plug.

Wife has a POA, which tells her she can sue. Religious exemption as written says she can't, and if she tries, she may find herself stuck with the hospital's legal fees. Common sense says "Wife = next of kin. POA = it's her call. Hospital is wrong." The religious exemption says "The hospital is not bound to recognize the marriage because it goes against their religious beliefs. Hospital can choose to go with the parents and there's nothing the wife can do."

At this point it comes down to the POA, a single judge, and if the wife is very very lucky, a sympathetic jury. The 1st Amendment rights of the hospital and its staff versus the marriage rights & POA of the couple? Whose legal protection trumps whose? No matter what happens there, the fallout is going to be huge.

Scenario #2: A server at a restaurant refuses to seat or serve a gay couple under the guise of religious freedom. The manager and other wait-staff are equally prejudiced, and the company has a long history of discrimination, so they need fear no reprisal from their higher-ups. No one on staff that night is willing to serve them, and calling someone in on their night off could be argued as presenting an undue hardship to the restaurant. The exemption as written means there's likely very little the gay couple can do but leave and find another place to eat. Not nearly as complex as the hospital scenario, this one is just stupid, disgusting, and under that amendment & exemption, perfectly legal.

My husband is Cherokee. Fifty years ago, our marriage would have been illegal in many states. Our children would have been barred from many schools, restaurants, even hospitals and play spaces. We still get some crap now, even in 2014, for being a mixed-race couple. Or a mixed-faith couple, in some cases. You would not believe the hoops I had to jump through just to get a Catholic priest to agree to marry us (I'm protestant), but it was important to my husband that the marriage be recognized by his Church and thus our children considered legitimate, so I did that for him. His mother is still convinced I'm going to hell. So is my grandmother, and she's as Northern Baptist as they come, her issue is that I married a non-white. But it never even occurred to me not to consider him purely over his racial heritage. He's gorgeous! Fifty years. Two generations, and so much has changed.

One other issue... just because religious exemptions are redundant (and I agree, they are) does not mean they are unnecessary. If we only needed a single law addressing a given topic, then our legal system would be FAR simpler than it is. But then, that would require that people function on more common sense than is generally present. If redundant laws and protections weren't occasionally necessary, we would not, for example, need laws protecting a woman's right to breast-feed her child in public. Fifty years ago, that was perfectly normal too. (Yeah, that'd be another personal soap-box, I can go on that one all day long.) Point being, a religious exemption is indeed redundant, but I believe potentially necessary, provided it is carefully drafted so as not to exceed the scope of the First Amendment.

(And GAH... I write novels, sorry folks!!)

 

I'm not an attorney, and the advice an attorney gave me and my former same sex partner is many years old, but it was explained to me that a health care and financial POA has nothing to do with marriage or any relationship at all. If you live in Ohio you could appoint me your POA if you wanted to, or me you. I used to have a neighbor who is the POA of a friend of hers, because the womans daughter was mistreating her, taking her money, and she didn't trust her daughter with those decisions. There is or was no religious exception in Ohio for a POA, and Catholic hospitals in Ohio have honored them in the past regardless of the relationship of the POA holder to the patient.

 

Fine, so I'm clueless as to how a POA works, I've never needed one. I still think the bill & exemption as written opens the potential for someone to disregard a POA and/or a legally recognized spouse in the name of religious freedom, and unless the spouse/POA-holder in question is very quick on their feet & has a lawyer on speed-dial, the deed could be done and the whole mess in court before anyone has time to blink. My point is that a more narrowly defined exemption would not lay such a potential minefield.

 

Here is the thing about Power of Attorney and other such agreements that grant similar benefits to marriage. In Virginia when my state passed the Constitutional Amendment against marriage equality it was considered widely to be the most harsh and aggressive anywhere in the country. The reason was the wording made it clear that not only was marriage equality outlawed, but potentially so were any agreement that gave ANY benefit that could be constituted as marriage. There was a strong fear that Power of Attorney and other such legal arrangements made by same sex couples in the state could be called into legal question as a result.

When we grant a broad religious exemption, especially in a Constitution, it ultimately falls to the courts to determine what is and is not Constitutional. It's completely within the realm of possibility that a judge would take the view as outlined in the Virginia state Constitution, and say - hey guys, look the issue isn't just marriage, it's the relationship itself. Someone who is opposed to gay marriage isn't just opposed to gay marriages, they're opposed to gay unions in totality. As a result, any required recognition of a gay union - or indeed homosexuality itself is in fact a violation of an individuals "right to religious freedom."

That's a perfectly valid and legitimate way to interpret things. It entirely depends upon whether the courts want to take a narrow view of the religious protection measure, or a very broad view. It sets up a battle that is not favorable to us at all. It puts us in a position where it looks like we're arguing against religious freedom, and that's a very easy position for our enemies to defend.

So, the question that we need to raise is why in the hell would we do that to ourselves? Why would we even potentially take that risk? Keep in mind, this is an unnecessary risk. We're at a point in the marriage fight where it's a matter of when and not if gay marriage will be legal in all 50 states. This will probably happen within the next three to four years, potentially even sooner if the Supreme Court takes up some of the cases working their way through the system right now. Because it's an unnecessary risk, it's also an unnecessary expenditure of funds that can be directed elsewhere. It's not cheap to organize, mobilize, and fund a campaign to pass a state constitutional amendment - especially one with unnecessary risk attached to it.

Finally, just to place the cherry on top here, by carving out a religious exemption in the Constitution, we set ourselves up to be turned away from even getting a marriage license. All we need is to attempt to get such a license, only to be told that all the people issuing them have religious opposition to same sex marriage, and therefore will not issue the licenses. You can therefore guarantee that our opponents will work their asses off to ensure that bigoted individuals are employed in those offices around the clock to ensure that we don't get them - even if it comes down to needing to find a way to fire existing employees. That's a fun little climate of fear, isn't it? You issue a gay marriage license, and then suddenly you start to find yourself under constant review by your superiors until they find something that they can use to fire you. It's not like our enemies are just going to give up after we get marriage equality. They're still going to be there, and they're going to look for every way possible to work against us.