The Powerful Headwinds Confronting Religious Freedom

In the next few months, the Supreme Court will decide Masterpiece Cakeshop, one of a series of cases in which conservative Christians have sought exemptions from public-accommodation laws that ban discrimination on the basis of sexual orientation. Like most of these disputes, the case involves a small business that declined, because of the owner’s Christian convictions, to perform a service in connection with a same-sex wedding—in this case, designing and baking a wedding cake. In most of these disputes, the lower courts have been unwilling to grant businesses religious exemptions from anti-discrimination rules.

Somewhat surprisingly, however, at oral argument in Masterpiece Cakeshop last December, the justices’ questions suggested that the Court might rule in favor of the bakery. Justice Kennedy, in particular, hinted that he believed the state’s denial of an exemption was an example of anti-religious bias against the conservative Christian who owns the bakery, Jack Phillips. Such bias would bring the case within the old “compelling interest” test of Free Exercise Clause cases like Sherbert v. Verner. Under that test, the state would prevail only if it showed that it had a compelling interest in applying the anti-discrimination laws to the bakery, notwithstanding a substantial burden on Jack Phillips’s religious exercise, and that the state had chosen the least-restrictive means of advancing that interest.

Justice Kennedy has been known to change his mind after oral argument, and one shouldn’t assume his questions indicate how he will vote. Besides, Masterpiece Cakeshop presents genuinely difficult legal questions. However the Court decides the case, though, deeper issues are worth reflecting on. Cases like Masterpiece Cakeshop suggest that religious freedom for traditional believers—mostly, but not exclusively, conservative Christians—is becoming more and more problematic. Cultural and political trends make the position of traditional believers increasingly precarious, and these trends inevitably manifest themselves in our law.

Culturally, American religion is becoming increasingly polarized. A significant and rapidly increasing percentage of Americans say they have no religious affiliation, a development sociologists refer to as the “Rise of the Nones.” Nones are especially prevalent among young Millennials, about 36% of whom say they have no religious identity. But religion is not simply disappearing. Around 40% of Americans continue to maintain a strong religious identity, measured in terms of things like church attendance and frequency of prayer, a percentage that has remained remarkably consistent for decades. Nones come, not from the ranks of the traditionalists, but from what used to be the moderate center of American religious life. As in many aspects of American society, when it comes to religion, the middle is dropping out.

The increasing religious polarization suggests that, unlike in the past, traditional believers cannot count on a widespread, if thin, cultural sympathy for their commitments. A large and growing percentage of Americans has no experience of traditional religion—and, to the extent it has had such experience, rejects it. Disagreements and misunderstandings are likely to be amplified by the fact that Nones overwhelmingly reject traditional teachings about sexuality, which they see as psychologically damaging and essentially unjust, an affront to the dignity of persons. It’s not coincidental that so many of our current disputes about religious liberty, like Masterpiece Cakeshop and Hobby Lobby, involve sexuality in some way.

Another cultural trend that should worry traditional believers is Americans’ expanding concept of equality. For many Americans, equality no longer means simply equality before the law. Rather, it means a rejection generally of distinctions among groups and individuals, including religious distinctions—a rejection of “difference per se.” Beliefs and practices that exclude outsiders from a religious community are presumptively suspect, because of the implicit judgments they suggest: some groups, apparently, think their beliefs and ways of life superior to others’. Such judgments seem impolite, ungenerous, and inconsistent with the spirit of true equality, which requires that each religion acknowledge the basic correctness of all the others.

The expansive notion of equality—equality as sameness—poses challenges for traditional religious groups, most of which continue to insist, as a matter of religious conviction, on maintaining boundaries with the followers of other religions. This doesn’t mean hostile relations, necessarily, only boundaries. For example, some evangelical student groups, while encouraging charity toward everyone, limit their membership to persons who share their faith commitments. Such limitations are apt to seem arbitrary and illegitimate to many Americans. In fact, a number of religious-liberty cases involve universities’ decisions to deny religiously “exclusive” student organizations access to campus.

These cultural trends are exacerbated by a political one: the growth of activist government bureaucracies at both the federal and state levels. Inevitably, just as it impinges on the activities of other citizens, the expanded regulatory state will impinge on traditional religious groups and their members. The more rules, and the more subjects covered, the greater the potential for conflict. But traditionalist groups face a specific threat: not only a growing state, but an activist state committed to advancing values they oppose. Because they reject the idea of equality-as-sameness, these groups find themselves standing in the way of the progress the state sees as its central mission. As a consequence, they should expect to become targets in a way other citizens will not. Justice Kennedy may have been getting at this in raising the issue of anti-religious animus in the Masterpiece Cakeshop argument.

In the nineteenth century, Tocqueville famously observed that American political questions inevitably become judicial ones. His observation remains true today. The cultural and political trends I have described have already begun to manifest themselves in our courts. Most religious-liberty cases are resolved, under federal or state law, on the basis of the compelling-interest test. (Under a decision called Employment Division v. Smith, the Supreme Court generally applies a different test for purposes of the federal Free Exercise Clause, but I leave that aside for now). But this test also should also make traditional believers uneasy. “Compelling interest” and “substantial burden” are vague concepts the courts never really define; the concepts turn almost entirely on the intuitions of particular judges. Because, as Glenn Reynolds writes, judges, especially federal judges, largely come from an upper-middle class professional background that mutes religious commitments, their intuitions are likely to be hostile, or at least indifferent, to many concerns traditional believers think important. And wait till the Millennial Nones start becoming judges!

I will leave for a further post a more detailed discussion of how the Rise of the Nones and our growing religious polarization, as well as the rise of the activist government, are likely to affect our future law of religious freedom. For now, it’s worth watching Masterpiece Cakeshop for some early indications.

Reader Discussion

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on May 02, 2018 at 12:14:52 pm

I agree that it helps my understanding of these issues to consider social trends.

For example, for a long time in the US, we had a presumption that Protestant Christianity was the default assumption for most civic participation. 38 states adopted Blaine Amendments to bar public expenditures for “sectarian” education, while continuing to fund public schools in which Protestant Bible verses and Protestant prayers would be offered. The Protestantism worldview wasn’t deemed “sectarian”; rather, it was the norm by which all other worldviews were judged.

We’ve come a long way, baby. So far that now Rod Dreher argues that Christians should make the grand gesture of formally surrendering any presumption of speaking for society at large (as the adherents of every other religion roll their eyes...).

In sum, when Protestants wielded more power, they were happy to design society as if we were all the same—that is, as if we were all white male heterosexual able-bodies Anglo-Saxon Protestants. So I see irony in the complaints of “traditional” Christians today.

But likewise, I sense Kennedy (and Movsesian) see irony in efforts to impose certain uniform social norms on traditional Christian businessmen today. If we conclude that in the past society made insufficient accommodation for difference, why shouldn’t that same insight guide us today?

Here’s the crux (ha!) of the matter: To what extent should government discriminate among types of discrimination? I sense widespread agreement that firms should not discriminate based on race—the businessman’s religious sensibilities notwithstanding. But discrimination based on sexual orientation seems more familiar, and so less threatening.

It’s not hard to find people sympathetic to Masterpiece Cakeshop. But when I suggest that whatever policy we adopt regarding sexual orientation we also adopt regarding race, these people blanch. People are unwilling to identify their cherished forms of discrimination with other people’s cherished forms of discrimination. They want special accommodation for THEIR discrimination, but not other people’s. In short, they want government to discriminate regarding discrimination.

I’m not so into that. I think government should have a principled basis for making exceptions to civil rights laws. And one possible principled basis is (surprise!) the Market Power Affirmative Defense.

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on May 02, 2018 at 12:30:02 pm

The threshold for this case is not whether or not the baker has to write anything on the cake or not. Or whether or not he has to attend the reception or any other thing except for one bottom line principle — the right to totally remain out. Even if the court rules on the speech issue in favor of the baker, but rules he has to sell the cake, its a failure of the court to protect religious exercise. Supplying a product to be used at an event the baker feels is sinful forces enabling the event with his business. Discrimination against sinful activities is absolutely the right of any American. Discrimination is not always wrong. The baker objects to the THING – the wedding event. If we cant object to things or events we are in for tyranny. Of course the trick of the politically correct wing of politics is to try to equate things with people. Sorry but a gay wedding is a concept/thing, it is not “gays”. A wedding is an activity. There’s nothing problematic about abstaining from contributing to an activity that one finds objectionable, particularly if its for religious reasons – since religious discretion is a first amendment liberty.

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on May 02, 2018 at 13:13:40 pm

And a Klansman (member of the Christian Identity Movement) should be entitled to refuse service for a black person's wedding?

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Image of nobody.really
on May 02, 2018 at 21:16:24 pm

OK - so who really cares?

And HOW many Klasmen are there. would we need to pull them out along with Pawstunney (sp? - but who cares anyway) Phil?

I say 'let a thousand flowers bloom" even if some are stink weeds or voodoo lillies!

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Guttenburgs Press and Brewery
on May 02, 2018 at 21:45:44 pm

The point is to test if jackson means what he/she says about the important of religious discretion, or is merely making special pleading for his/her own religious preferences. T

o modify the famous quote, freedom of religion is not just freedom for the religion we love, but for the religion we hate. As I said above, I argue for equality under law--so if we argue for making accommodation regarding sexual orientation, I suggest we're also arguing for making accommodation for race. If not, then not.

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on May 03, 2018 at 06:47:19 am

The anti discrimination laws passed in the 1960s were a fatal mistake. I believe they were justified under the commerce clause, which had been twisted into unrecognizable shape by progressives. Over the years they have been used as a battering ram to destroy traditional organizations and freedom of association. In the saddest irony, they hurt the group they were designed to help, black Americans. Instead of progress against decling racial prejudice, these laws gave incentives to punishing “racism” and stoking resentment. Hello, Jesse Jackson and Al Sharpton. Combined with an expanded welfare state, the progress of black America stalled and we’ve reached the current sorry state.

Absent these laws, I believe prejudice would have continued to decline. We might still have whites only clubs and institutions, but most people would shun them due to peer pressure. On the other hand, we would not be fighting about same sex bathrooms and “transgendered “ soldiers.

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Richard Berger
on May 03, 2018 at 10:20:11 am


So your 'market theory" in operation?

I actually agree with you on this? If one is allowed, the other ought to be allowed; and it matters not at all that one is even more reprehensible than the other (depending on one's viewpoint, of course).

As a practical matter, would you concede that under your "market theory" the incidence of *strife* (if not violence) would be likely to increase. Below, Mr Berger mentions " shunning" socially retrograde individuals / institutions. This is quite possible. He also, however, references a *new* attitude on the part of minority individuals / groups - a new assertiveness (aggressiveness?). We do observe such an attitudinal change. Given this, do you not recognize that should we allow "white-only" clubs, wedding catering, etc that eventually we would observe more violent reactions?

I suspect that this is a real possibility and I think a weakness in your "market theory"

Your thoughts on a) possibility of more violence, b) what to do?, c) any modifications / adjustments to "market theory". Should we limit it under the old standard of Public Accomodation? Quite different thing to throw someone out in the dead of an Alaskan winter than it is to suggest that one go to Mr. Bochagiluppe's Bakery!


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on May 03, 2018 at 17:28:39 pm

Your thoughts on a) possibility of more violence, b) what to do?, c) any modifications ?

Well, since you asked….

I've touted my Market Power Affirmative Defense for a while now—and never encountered the slightest enthusiasm for it. Why not?

1. Admittedly, the idea takes time to mull over--people have a justifiable aversion to adopting policies that might accommodate Klansmen--so some of the reticence may reflect people's causation and need for reflection.

2. I sense many people also look upon the law not as a means for establishing the boundaries of people's discretion, but as a means for normalizing/legitimating the exercise of discretion. Then the courts uphold the rights of Westboro Baptist Church to protest outside military funerals with signs saying, "Thank God for Dead Soldiers," some people look in that as a vindication of the viewpoints being expressed. I disagree with that viewpoint, but I acknowledge that people hold it. Civil rights laws symbolically affirm the struggles of members of traditionally subordinated groups (ethnic minorities, immigrants, women, LGBT, people with disabilities, etc.).

3. As a corollary: Not only do merely like seeing their groups vindicated, they like seeing rival groups subordinated. And this, I believe, is the central dynamic in Masterpiece Cakeshop. The refusal to provide a cake imposed no harm other that a “dignity” harm. While the law may in fact permit to win a judgment against the cake shop, I sense to goal is to establish domination/subordination.

And what is a “dignity” harm? In this case, it refers to compelling a gay couple to acknowledge THE TRUTH that the cakeshop owner disapproves of same-sex marriage. Doubtless the gay couple doesn’t like learning about this disapproval—but the lack of litigation did not cause the disapproval, and the completion of litigation will not alter the disapproval; quite the contrary. So what will the litigation accomplish? It may force people who disapprove to hide this fact in order to either 1) defend gay people’s right to live in ignorance of the truth about other people’s views, or 2) let gay people feel smug that they can force businessmen to cater to gays against their will. Is that what “dignity” means—the right to self-delusion and domination? And, if so, why should we ask the law to vindicate it?

(An aside regarding domination: The 1964 Civil Rights Act permits people to sue regarding discrimination by landlords, employers, and providers of public accommodation. Note that it does not apply to tenants, employees, or customers: the law imposes no sanctions on me when I declare that I’m never gonna work for a woman, or rent from a dago, or patronize those Jew businesses. Why not? Arguably this reflects power dynamics: We are accustomed to feeling like supplicants when dealing with landlords, employers, and business owners. But in part, it reflects the fact the more people identify with being tenant, employee, and especially customer.

I sense part of people’s opposition to the baker’s perspective is a widely-held view that business owners MUST do business with all comers. Yet the general law is that you may refuse to do business with me for any reason or for no reason—just not for a suspect reason. Don’t want to serve blonds? Don’t have to. Hate people who attended state college? Throw them out. There’s no (federal) law against it. However, members of the public mistakenly regard themselves as sovereign consumers, and take enormous umbrage at the thought that a merchant might judge them, find them lacking, and refuse to do business with them. I sense THIS attitude influences many people’s views about Masterpiece Cakeshop--people are horrified at the idea that a merchant wouldn’t kow-tow to their whims.

Likewise, I sense my Market Power Affirmative Defense triggers a similar reaction in people: Because they identify as being customers, not merchants, they’re horrified at the thought that a merchant might judge a customer on the basis of the customer’s membership in a suspect class—or for any other reason. That is, I sense part of what people object to is not my proposed change in the law, but to the shocking realization about the current state of the law.)

With that wind-up, a turn to gabe’s question: Would the Market Power Affirmative Defense provoke more social conflict? Maybe—although I’d doubt it.

A. Remember, the law already vindicates the right of Westboro Baptist to march around funeral ceremonies with signs saying “God Hates Fags!” Do we expect that store clerks will come up with anything as incendiary as that?

B. Also, remember that the 1964 Civil Rights Act already permits people to form private clubs, and to limit membership in any way they choose. Thus, the Supreme Court upheld the right of a private club called the Boy Scouts of America to exclude gay scoutmasters—not prohibited under federal law.

C. As we noted regarding assimilation, even if there are eccentrics who resist assimilating, the vast majority of immigrants assimilate for the simple reason that they find it in their interest to do so. Likewise, landlords, employers, and merchants WANT to attract people, and so have an interest in hiding their more judgmental tendencies. If you pay the rent on time, I can overlook your choice of spouse.

D. Moreover, the law does not prompt people to hold discriminatory views. It merely permits people to express the views they already have—honestly.

First, I reject the Heckler’s Veto—the idea that we should silence a SPEAKER due to fears about how a LISTENER might react. If a listener reacts violently, that’s on the listener.

Second, I believe in autonomy rights—even if it DOES provoke conflict. Because at least it provokes HONEST conflict; if our society is divided, let’s get it out in the open. That’s the healthy way that society changes.
Think about it: For years our society shunned premarital sex. Sure, it was widely practiced. But we refused to acknowledge it—until we did. And now we acknowledge that people have sex outside of marriage. Sure, this fact has its problems, but those problems existed whether or not we acknowledged them. Now we can adopt healthy and constructive policies around this fact.

For years our society shunned homosexuality. Sure, everyone knew about specific gay bars and gay neighborhoods. But we refused to acknowledge it—until eventually we did. Sure, gay relationships have problems, but those problems existed whether or not we acknowledged the relationships. And now we can have healthy and constructive discussions and policies.

So for years our society has shunned white supremacy. Sure, we all had weird uncles who ranted at Thanksgiving. But we refused to acknowledge it—until we did. Sure, white supremacy has problems—but those problems exist whether or not we acknowledge white supremacy. Wouldn’t it be better if we could have healthy and constructive discussions and policies about white supremacy?

I don’t mean to suggest that everything in the world is perfect. I mean to suggest that the world’s imperfections to not get better when he hide them; mostly the opposite.

Let the sun shine. Let the sunshine in.

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on May 03, 2018 at 17:54:05 pm

Yep - agreed!

I do however believe that the *potential* for more violent confrontations would be greater on the simple fact that, yes, there are racist knuckleheads out there (or folks like me who cannot abide "redheads"). some percentage of these types will refrain from acting out their biases for fear of the legal consequences. Without such a law (I am not here advocating anything) it is reasonable to assume that some higher percentage of knuckleheads will act on their biases. The greater the frequency, the greater the likelihood that certain untoward behavior AND responses will occur.

But as you know, I am partial to MPAD, even considering the potential for further (albeit temporary) disharmony.

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on May 07, 2018 at 20:28:40 pm

The classic position is that discrimination should be excluded in the government's dealings with its subjects, but not per se in these subjects's dealings with each other. Citizens are permitted to discriminate each other, because this is the foundation of the freedom of association. A political party or any other association or club of citizens has the right to admit only those who meet the criteria of their association or club. So a church may excommunicate those who undermine its doctrine or practice and a political party may expel those who get "out of line".

Now in the free sphere of market exchange, of selling and buying, this type of discrimination is generally not permitted. If I am a baker, I cannot decide to sell my cakes only to white and not to black people.

I would say, however, that Masterpiece Cakeshop is not about refusing to sell goods only to certain categories of people. It is about (1) refusing to celebrate with them or to congratulate them, or (2) to work for them in producing a special individual product. And I think these refusals should be permitted, if one doesn't want to force many decent people into impossible and humiliating positions, or to completely take away the freedom of a commercial craftsman to accept or refuse a certain type of work.

I think anyone would agree that a Jewish baker would be permitted to refuse a Neo-Nazi group which would require of him to bake a cake with on top of it a swastika or an image of Goering or Hitler. In a similar way a baker may refuse to produce a cake with a naked woman or a gay image on top of it. And a photographer may refuse certain wedding sessions, simply he doesn't like gay weddings, or trans weddings, or whatever type of weddings.

These refusals can be based on two legal grounds: (1) because accepting would imply celebrating with or congratulating people for acts expressly prohibited by the religion or worldview of the baker or photographer; or (2) because a commercial craftsman has the freedom as an entrepreneur to refuse types of work he simply doesn't like, without any obligation of giving a reason. If I call my plumber to fix something and he is afraid of complications or other risks, he can simply say: "No, ask anyone else but not me I won't do it". Baking an individually designed cake for someone or accepting an photography session are essentially in the same category.

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Ronald Sevenster
on May 09, 2018 at 00:30:08 am

[…] The Powerful Headwinds Confronting Religious Freedom Mark L. Movsesian, Library of Law and Liberty […]

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PowerLinks 05.09.18 – Acton Institute PowerBlog
on May 27, 2018 at 09:55:57 am

Governments all around the world and over the centuries have regulated (controlled by prevention, detection and criminalisation) harmful behaviours and practices in order to protect the public and society from harm such as adultery, sodomy, prostitution, fornication, bestiality, incest, pedophilia, abortion, euthanasia, gambling, drugs, cigarettes, alcohol etc. However, the western world have decriminalised (no longer punished) adultery and breaking a marriage oath by the introduction of a no fault divorce as civil registered marriage was no longer based on faithful sexual intercourse nor a lifelong contract.

Many western countries like Australia have now legalised adultery as the amended Marriage Act removed the criteria of an exclusive union between one man and one woman for life. A civil registered marriage in Australia is now a legal union between any 2 people including people who practice adultery, sodomy, prostitution and fornication. The civil registered marriage practice has been deregulated for "cheaters" so they can have an adulterous marriage, same-sex marriage (sodomite marriage), "Harlot marriage," and or a defacto marriage. 2 people can now marry to become one for legal government marriage benefits such as status of "civil registered marriage," access to a no fault divorce, immigration, inheritance and welfare benefits. Civil married couples are included in marital rape laws and domestic and family violence regulations, so it is obvious that a legal union between any 2 people is harmful. The government needs to detect all civil registered marriage between any 2 people who aren't in a "one flesh" union because children can be procreated with other people and this means that these children are at risk of an incestuous relationship in the future as they don't know who they're biologically related with.

Dr Zimmerman is a senior lecturer and Former Dean (Research) & Director of Postgraduate studies at the school of Law of Murdoch, and he recently stated, "...traditional marriage between one man and one woman no longer stands up in court." In other words, the Australian law no longer regulates (controls) a public commitment to a lifelong, faithful "one flesh" union between one man and one woman. The 2017 amended Marriage Act and no fault divorce laws aren't part of the Christian faith in the sacrament of "one flesh" union (marriage) as these laws are filled with lies and deception. Adam and Eve never were forced to purchase a legal state marriage certificate for a public wedding ceremony. The act of adultery is only between a man and woman, and it can only happen if a "one flesh" union (marriage) had existed. The 10 Commandments warned against coveting another man's wife as this leads to adultery and can even lead to murder. God commanded that children are to honour their father and mother, so it is obvious that God never intended for children to be legally separated from their father and or mother. Also, the Commandments warned against idolatry, dishonesty and worshipping oneself which includes the sexuality and gender theories.There is no Australian law against a "one flesh" union (marriage) between a man and a woman as they can naturally procreate, nurture and raise new-life with both a male and female role model (natural human reproduction). Genuine Christians have their religious freedom to reject the sexuality and gender theories for themselves and their families as these ideas have created the subjective LGBTIAQ self-identities and "same-sex marriage." Australian farmers don't pretend that the public roads authority are regulating their roads on private property, nor should genuine Christians pretend that the amended Marriage Act and no fault divorce laws are regulating their "one flesh" union (marriage). Genuine Christians don't pretend that a spontaneous abortion (miscarriage) is the same behavioural practice as a legal abortion, nor the natural death of a terminally ill patient is the same as legal euthanasia. Therefore, genuine Christians don't need to pretend that a "one flesh" union (marriage) is the same behavioural practice as a civil registered marriage. A legal state marriage certificate isn't a person's virginity or "one flesh" union. A husband and wife unite as one with the fruits of the spirit which include love, joy, peace, forbearance, kindness, goodness, faithfulness, gentleness and self-control. Against such things there is no law. Same-sex partners refused to find another name to call their union and demanded "civil registered marriage," but genuine Christians have another name - "one flesh" union for an exclusive union between one man (Adam) and one woman (Eve) for life as this is recorded in Genesis. My moral conscience doesn't allow me to self-identify nor participate in a deregulated civil registered marriage practice because I have my. religious freedom to claim "independence" or "ind" from the harm of the amended Marriage Act and no fault divorce laws. Also, public registries for prostitution and civil registered marriages will come into conflict each other as sex worker can now legally self-identify as a legal "spouse" in order that payment for sex can be treated as money given to one's spouse. A sex worker and their client have a legal right to a "Harlot marriage" as they're any 2 people who can become one for legal government marriage benefits, and they meet the only criteria of a no fault divorce as once the payment for sex is made, then their commitment and love is "irretrievably broken down." Australian can no longer discriminate the difference between a "Harlot marriage," "same-sex marriage," adulterous marriage and a defacto marriage because all harmful sexual behaviours and practice are legally treated the same by a deregulated civil registered marriage practice. There is plenty of evidence that the law can't treat a "one flesh" union as the same as a civil registered marriage.

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J.Sheryl Adam
on June 03, 2018 at 11:14:13 am

You cannot abide redheads? Why.

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jessica harmon-bergeron

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.