The following e-mail exchange was prompted by a Feb 9 2011 article in the Baltimore Sun:
http://www.baltimoresun.com/news/maryland/politics/bs-md-gay-marriage-hearing-senate-20110208,0,1140373.story
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Senator Jacobs,
I read in the Sun paper this morning (Feb 9 2011, article about testimony on Religious Freedom and Civil Marriage Protection Act) that you think a confectioner ought to be able to turn away members of the public, who are gay.
Do you also think a business - any business - ought to be able turn away a customer who is Jewish?
You are speaking the language of hate.
I look forward to your response, which I will publicize - including a non-response.
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Mr. Cook,
Thank you for taking the time to write me.
Unfortunately the Sun newspaper has misattributed part of their story to me and took the other attribution out of context in which I asked the question.
Let me preface my response by noting that you are certainly entitled to your beliefs and I sincerely appreciate you sharing them with me—even in disagreement. I do not believe my language is hateful. I believe, taken in context, it brought up a very serious issue that goes to the core of the freedom of religion. Let me explain.
First, of course I do not believe a business should turn down a Jewish customer in most circumstances. In fact, I think businesses would be crazy to turn down any business in these troubled economic times.
With that said, in keeping with your example regarding the Jewish faith, I would say its fine for a Rabbi to refuse to perform a wedding for a Protestant/Muslim/Atheist/etc couple and vice versa. At issue is the question of whether a religious-oriented business (wedding officiate, wedding confectioner, photographer, etc) should be mandated to take on commercial enterprise that fundamentally goes against the foundations of their faith and beliefs. In these situations, I do believe that the business-owner’s freedom of religion plays a pivotal role in their selection of clientele and in these limited situations I think it is acceptable. (As noted in the story, state law already prohibits hotels, motels, bars and restaurants from refusing clientele based on sexual orientation).
Additionally, as I’m sure you’re aware; there are instances where some organizations and businesses do work with select clientele beyond just religious beliefs. For instance, I’m sure you’re familiar with 55+ communities or ladies night at bars.
In regards to the second example cited by the Baltimore Sun about the hypothetical court clerk, that was asked by another senator on our committee. I do not know why the Sun attributed the quotation to me.
While I realize you may not see eye-to-eye with me, I value you taking the time to write me. The free exchange ideas is the bedrock of our democracy and I welcome civil disagreement with the same gusto I accept agreement.
Sincerely,
Nancy Jacobs
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COMMENT: The free practice of religion extends to the clergy prerogative to solemnify or to decline to solemnify a marriage by conducting a religious ceremony.
But the practice of religion does not permit the government to invoke a gender test upon citizens and to forbid from marrying those citizens who fail a test of their gender.
The courthouse must remain open to all citizens, without any citizen being subjected to an inquiry into gender.
During the era of slavery and segregation, private businesses invoked personal and religious privilege, what today might be called a "conscience exception," to deny freedom and public services to African-American citizens.
The analogy to improper denial of state services, not the analogy to a clergy privilege, is the way to think about whether citizens ought to be free to marry, without regard to gender.
A gender prohibition to marry, based on a state inquiry into gender, is unfair in principle and unenforcible in practice.
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COMMENT: The free practice of religion extends to the clergy prerogative to solemnify or to decline to solemnify a marriage by conducting a religious ceremony.
But the practice of religion does not permit the government to invoke a gender test upon citizens and to forbid from marrying those citizens who fail a test of their gender.
The courthouse must remain open to all citizens, without any citizen being subjected to an inquiry into gender.
During the era of slavery and segregation, private businesses invoked personal and religious privilege, what today might be called a "conscience exception," to deny freedom and public services to African-American citizens.
The analogy to improper denial of state services, not the analogy to a clergy privilege, is the way to think about whether citizens ought to be free to marry, without regard to gender.
A gender prohibition to marry, based on a state inquiry into gender, is unfair in principle and unenforcible in practice.
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