Defending The Freedom Of Association

In contrast to some of my conservative compatriots I do support the right of gays to marry, or more specifically, I affirm the Freedom of: Association, Conscience, Contract and Institutional Autonomy.

The Freedom of Association dictates that an individual has a right to association or not associate with individuals of their choice and the Freedom of Conscience and Contract allows them to define the terms, rights and responsibilities of their relationship and enshrine it in a legally binding agreement. And the Freedom of Institutional Autonomy maximizes the rights of private institutions to run their affairs as they see fit without undue government interference. Even those who believe that homosexuality is a grave sin and offensive should respect the rights of two individuals of the same sex to freely associate, form a marriage contract and also respect the rights of any house of worship to choose to conduct the ceremony.

But, supporters of gay marriage should also be careful about infringing on the rights of others, as was recently the case when a gay couple initiated a law suit against an Illinois bed & breakfast for refusing to host their civil ceremony. Even those who find the choice of the owner "offensive" or "bigoted" should respect his right to (decline to) Freely Associate with the couple, based on his right to (not) Form A Contract with them that violates his Freedom of Conscience and Institutional Autonomy, i.e. his right to run his business as he sees fit. Given the nature of a free market, I am confident that the couple could find another bed and breakfast that would gladly host their ceremony, either out of  moral convictions or desire for profit. And in the highly unlikely event that such a bed and breakfast did not exist, the couple and other like minded individuals and organizations would be free to open one of their own and run it as they saw fit.

Let's defend the Freedom of Association in all its forms, even when others exercise it in a manner that we find offensive. Because if we do not defend the rights of "perverts" and "bigots," we undermine freedom and may one day find that it's our choices that are being restricted.

Same-sex couple denied ceremony at B and B might act

Case could draw a line between personal and religious freedoms.

September 16, 2011|By Rex W. Huppke, Tribune reporter

Not long after ink from the governor's signature had dried on Illinois' civil unions law, Todd and Mark Wathen began preparations for a June ceremony.

The couple wanted to hold the event somewhere quaint in central Illinois, a place that would be convenient to family in Kentucky and Indiana and to their home in Mattoon. They reached out to two bed and breakfast establishments — and in each case the owners told the Wathens they were not willing to host a civil union.

The Beall Mansion in Alton told the Wathens via email that it "will just be doing traditional weddings." The owner of the Timber Creek Bed and Breakfast in Paxton wrote in an email to the couple: "We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate."

"After all this happened, I just didn't even want to talk about the wedding," said Todd Wathen. "It took an event we had looked forward to for years and ruined it."

The Wathens wound up holding a ceremony in their backyard shortly after the law took effect in June, but they did not let the matter with Beall Mansion and Timber Creek rest.

The couple filed a complaint with the Illinois Department of Human Rights, which investigated and found "substantial evidence" that a civil rights violation had been committed.

The August finding allows the Wathens 90 days to file a complaint with the state Human Rights Commission or take civil action in Circuit Court. The Wathens' attorney, Betty Tsamis of Chicago, told the Tribune that her clients have chosen the latter path and will file lawsuits against both businesses as early as next week.

This action, should it proceed, could bring to the courtroom a debate over the boundary lines between religious freedom and discrimination in Illinois.

Steven Amjad, an attorney representing Timber Creek, said the state constitution guarantees religious freedoms.

"These are business owners that have strong religious convictions. The Legislature has created this (conflict), and the courts will have to sort this out," he said.

Andrew Koppelman, a professor of political science and law at Northwestern University, said the question is whether the state's Religious Freedom Restoration Act — which protects religious freedoms from government intrusion — can trump the state's Human Rights Act, which includes the protection of people based on sexual orientation.

"The hotels seem pretty clearly in violation of the Human Rights Act," Koppelman said. "And if you're going to say that somebody is exempted from the human rights law under the Religious Freedom Restoration Act, that would mean that people could discriminate based on religious views. It's a slippery slope."

As civil union and same-sex marriage laws have been enacted in states across the country, similar legal cases have surfaced. In Vermont, for example, a lesbian couple has sued a bed and breakfast for having a "no-gay reception policy."

"This issue is coming up in many different places," said Jennifer Pizer, legal director at the Williams Institute on Sexual Orientation Law and Public Policy at the University of California at Los Angeles.

"Some people talk about religious freedom being an absolute freedom, but the limits start to come into play when people wish to act in certain ways in furtherance of their beliefs," Pizer said. "The Supreme Court has said before that freedom of belief is absolute, but the freedom to act cannot be."

A similarly themed case recently played out in Illinois when Catholic Charities fought the state over whether the organization discriminated against same-sex couples by not allowing them to adopt foster children.

Attorneys for Catholic Charities said the state's civil unions bill — formally known as the Religious Freedom Protection and Civil Union Act — provides exceptions for religious groups that don't recognize civil unions. Attorneys for the state said those exceptions apply only to clergy who do not want to officiate civil unions.

In August, a judge sidestepped the religious freedom issue while ruling that the state could sever its contracts with Catholic Charities. That ruling is likely to be appealed.

Illinois attorney Jason Craddock, a member of the Alliance Defense Fund, a national Christian legal organization that opposes abortion and same-sex marriage, also is representing Timber Creek. Craddock said cases such as this one involving the Wathens are critical for people of faith who believe their First Amendment freedom of religion is inviolable.

"I believe strongly that liberty of conscience, particularly religious liberty of conscience, is what our nation was built on and is something that goes deep to our souls," Craddock said. "Increasingly it's being pitted against the asserted rights of homosexuals. Now it's going beyond just asking for tolerance. Now we're getting into a situation where government is telling people of faith, 'You can't live out your faith if it happens to disagree with this particular group.'"

Tsamis said the case isn't about stifling a person's religious freedom but about making sure that a public business does not discriminate against people because of their sexuality.

"For the religious right, they view this as a very important case strategically," Tsamis said. "They'reinvesting a lot into making sure that the Wathens lose. Our goal is to simply make sure these people are complying with the law.

"This isn't about the money. This is about the principle. A business cannot violate someone's civil rights because of who that person is."

Pizer, the UCLA professor, said this case and others like it mirror litigation that surfaced during the civil rights era in the wake of laws mandating desegregation.

"For each generation or each new issue of inclusion, there can be questions about what the law means and what the law requires of people," she said. "Sometimes, there's a simple resistance to the concept. But it also can be sometimes a matter of honest confusion.

"For example, some of what's going on now is that people believe — honestly, sincerely believe — that their religious views do trump the civil rights law and give them a legal defense. They believe they're not breaking the law."

But the courts generally have not agreed with that thinking, Pizer said: "You do have a constitutional right, but it's not a free pass to avoid all the laws. People have thought that, but the Supreme Court has often said, 'No.'"

The owners of the Beall Mansion referred calls to their attorney, John Hopkins, of Edwardsville, who said he had no additional comments to make until the Wathens formally proceed with their case. Jim Walder, co-owner of Timber Creek, wrote the following statement in an email:

"Todd Wathen's inquiry came months before the civil-union law went into effect and we had not yet thought through the implications of how that law might impact our business. After considering the issue, we decided that we would continue to host wedding ceremonies for marriages, but that we would not expand our services to include civil unions of any kind."

The Wathens met in Kentucky in 2003 and moved to Illinois in 2006. They say they decided to take legal action against the two businesses because they don't want others to have similar experiences.

"I'm a white male in my early 40s and I'd never experienced discrimination in my life," said Mark Wathen. "When I came up against this I was like: 'Whoa. This is not the 1960s.'"

Todd Wathen added, "We just didn't feel like we could sit back and let this happen."

rhuppke@tribune.com