Thursday, February 2, 2012

Privielged Status Alive and Well Despite Whining

I listen to AFR from time to time and one of their talk shows today was all outraged and incensed about a recent ruling out of New Jersey where, as they report it, a judge has ruled that a camp meeting association affiliated with the United Methodist church CANNOT (note the present tense) decline to allow same sex civil union ceremonies (note the plural)  on their own property because to do so violates New Jersey Law Against Discrimination.   Of course that raises the immediate picture of a church being forced to allow same sex marriages in their sanctuaries without regard to their religious beliefs and plays right into their persecution complex.    I went and found the actual decision and, as expected, they don’t understand (and probably did not even bother to read) it.
Key points of the decision:
1.       The property in question is not a church or sanctuary.  It is an outdoor pavilion along the boardwalk.
2.       There was no allegation that the organization was being required to bless or participate in the  ceremony.  It simply rented the facility to third parties of all kinds. 
3.       The decision rested entirely on the fact that, in order to obtain special tax treatment , the association had repeatedly promised that this particular location (as opposed to its sanctuary) would be made available to the public without discrimination that would violate the LAD. Even when it was challenged by a municipality who was skeptical that the association would in fact do so, it insisted that it would and, therefore, received the special tax treatment afforded to people who make and keep such a promise.  Had it not insisted on promising to abide by the LAD with regard to access to that pavilion, the case would likely have come out in its favor. 
4.       This is reinforced by the acknowledgment in the decision that the situation that created the violation – the promise – has been cured by the organization removing the property from that particular special tax treatment and registering  it for tax purposes as a religious organization.  (p. 4, last paragraph.)  Thus, the use of the present tense and plural  in the news stories that the organization CANNOT decline to allow a same sex unions on its property is misleading.  They can.  And they are now.  The only thing they cannot do is lie or break promises by making public promises that they will follow the LAD and not discriminate and then do so despite that promise.  If they register as a religious organization, the LAD contains an exemption for them that allows them to discriminate at will.  And that is exactly what they have now done and will be doing in the future. 
5.       The judge obviously realized that the organization  did not fully realize what it was  promising since the legality of same sex unions was not in existence when it started making the promise.  The judge expressly found that it did not act with ill motive but merely found itself on the wrong side of recent changes in the law – a situation it has  remedied – and, therefore, he did not award even nominal sanctions against it.  
Bottom line: The organization made a promise, breached the promise and was called on it.  But it has now withdrawn the promise and remains free to deny same sex couples the use of the pavilion in the future  under the legal protection they enjoy as a religious organization.  Nothing has been forced upon it, it has just been cautioned not to pretend it is not a religious organization and make promises it can’t keep.  Be upfront about being a religious organization and your intent to discriminate on that basis and you are free to do so with the express protection of the law.  
This also comports with the Supreme Court’s recent decision  that a religious affiliated school that calls its teachers “ministers” is free to violate the ADA and discharge an employee for having narcolepsy – an act that would be illegal for any non-religious employer. 
If the New Jersey case is raised to you as an example of the militant homosexual agenda invading the churches and trying to force you to hold same sex weddings in your sanctuaries, you will be prepared to understand that it really isn’t that at all.  And you can also mention that the US Supreme Court has recently affirmed even a school that is affiliated with a religious organization is not required to follow the employment laws that everyone else is.  The privileged status of religious organizations in this country is alive and well!