“The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances,” the court said. The justices reprinted both the First Amendment and Section Seven of the Kansas Constitution in full, to make clear that neither constitution allowed the state to tell a minister how to conduct religious worship.
Case dismissed. I haven’t been able to find a case before or since State v. Barclay in which a prosecutor or a court had been clueless enough to entertain a discrimination claim based on marriage ceremonies.
Pastor Barclay’s story puts the recent flap about Religious Freedom Restoration Acts in perspective. Many supporters of both the Indiana and Arkansas laws claimed that new “religious liberty” legislation was needed to prevent Caesar from dragging ministers from the pulpit. “A church should not be punished because they refuse to let the church be used for a homosexual wedding!” proclaimed Advance America, a Christian group prominently involved in the campaign for the Indiana RFRA.
But the First Amendment protects “the free exercise” of religion—and even those who read that clause most narrowly agree that it protects church decisions concerning whom to marry and where.
So this aspect of religious liberty was in no danger in Indiana, just as it has never been endangered by the Civil Rights Act of 1964 or the numerous state and local anti-discrimination laws passed over the past half-century.
The Indiana and Arkansas flaps, however, showed us that the public understands very little about how civil-rights laws and religious liberties work together.
No law, state or federal, forbids “discrimination” generally. Employers, landlords, and businesses “discriminate” all the time—on the basis of low credit ratings, bad references, and poor employment histories, among other factors. Any type of private discrimination is legal unless a state or federal law specifically forbids it. Civil-rights laws prohibit discrimination on certain grounds, and they specify what activities they apply to. The most common areas of civil-rights protections are employment, housing, and “public accommodations,” which refers to places like hotels and restaurants.
Thus, a civil-rights statute has two key parts. The first lays out the traits it governs, the forbidden grounds—for example (to quote Title VII of the Civil Rights Act of 1964), “race, color, religion, sex, or national origin.” To state a claim, plaintiff must show that he or she has been treated less favorably than others who differ in one of the covered traits, and that the unfavorable treatment was because of that trait.
(This is the reason that many of the examples floated on talk radio are just irrelevant: a halal butcher shop, for example, would not be “discriminating” against anyone by not selling pork chops. Discrimination against customers is forbidden; discrimination against meat products, not so much.)