I’d like to add a bit of perspective to the commentary I read the other day by Roger Severino, a lawyer with the Becket Fund for Religious Liberty. The article is divided into quote boxes, my comments follow.
Legalizing gay marriage will spark lawsuits against churches 1
Apr 7, 2008 3:00 AM (1 day ago) by Roger Severino, The Examiner
WASHINGTON – After years of litigation and debate, the California and Connecticut supreme courts are about to decide the question of marriage. If, as some suspect, the courts redefine the institution to include same-sex couples, they will have entered a minefield of unintended consequences — especially with regard to religious liberty.
The experience of legalizing same-sex marriage in Massachusetts, and of civil unions elsewhere, cannot be ignored. It shows that, even with the best of intentions, legalizing same-sex marriage will seriously undermine the religious freedom citizens have enjoyed since the founding.
This hyperbole has become all too well known in arguments that appeal to tradition. This was the same argument used in the iconic Supreme Court case of Loving v. Virginia, where in the earlier trial, the trial judge stated:
“Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”2
Apparently allowing races to mix in marriage would “seriously undermine the religious freedom citizens have enjoyed since the founding.”
Severino, continued:
Although the First Amendment protects dissenting houses of worship from being forced to perform same-sex wedding ceremonies against their will, that is not the end of the story — it is barely even the beginning.
Mr. Severino apparently ignores the fact that although there is an optional ceremonial and religious aspect to marriage, with regard to the state, it is a legal issue akin to a contract in the eyes of the state, covered by its laws, and that can be processed fully by a non-religious government entity such as a justice of the peace or someone else authorized to conduct a marriage. In other words, religious institutions are not required to perform marital ceremonies — these religious rituals are optional, based on the desires of the members of the respective churches.
Simply changing the definition of marriage opens the door to a flood of lawsuits against dissenting religious institutions based on state public accommodation and employment laws that prohibit marital status and sexual orientation discrimination.
Is what’s being asked for a simple change in definition of marriage, or is it a change in application of marriage? I think it’s the latter. The same way a black and white couple could live together as if married, prior to Loving v. Virginia, two men or two women could live together as if married. Loving allowed states to recognize the black and white couple as a union under law, afforded the same rights and privileges as other couples. Apply marriage more broadly and reject more tradition, and it would include same-gendered couples. As F.C. Decoste states, “Of course, if this be so — if the only arguments against same-sex marriage are sectarian — then opposing the legalization of same-sex marriage is invidious in a fashion no different from supporting anti-miscegenation laws: each is a fundamental assault on equality, and neither has any rhyme or reason beyond sectarian commitments which would foist one’s own diseased, personal morality on the whole of the polity.”3
Additionally, religious institutions that refuse to recognize a new state-imposed definition could be stripped of access to government programs, have their tax exemption denied and even lose the ability to solemnize civil marriages.
Here we embark on an interesting and, I’m sure, controversial issue — should religious institutions even have tax exemptions, or is that a violation of the First Amendment? And why should religious institutions be treated any differently than any other charitable organization that refuses to comply with government rules, and that ends up losing access to government programs? Is the adherence to religious tradition and homophobia important enough to religious institutions that the lesser of two evils is to reject government assistance?
We need only look at Massachusetts for a preview of what to expect. There, in 2004, justices of the peace who refused to solemnize same-sex unions due to religious objections were summarily fired.
And a doctor who refuses to perform a life-saving blood transfusion because it conflicts with his religious beliefs should be praised? If a person hired by a government entity has a personal problem performing an administrative task according to the rules and regulations of the government, then the person should not be an employee of the government.
It did not matter that other justices of the peace were available to do the job because, by Massachusetts law, same-sex unions were now entitled to equal treatment. A religious belief became a firing offense.
No, the belief did not become a firing offense. The manifestation of that belief by refusing to comply with a government mandate while being employed by that government became a firing offense.
It is but a small step for the state to impose this rationale on churches and other houses of worship and end legal recognition of religious marriage ceremonies that do not comply with the state’s expanded definition of marriage.
As has always been the case anyway. If a Church of Satan has a marriage ceremony, the government doesn’t have to recognize it if it doesn’t comply with state law. So, the rationale has always been imposed. Even a church recognized as an entity that can perform legal marriages doesn’t get a free pass if the person actually performing the marriage is not authorized to do so. Why should there be a special exemption for religion for anything violative of the law?
This is not the only example of what is to come. Massachusetts, like many other states, strictly regulates private adoption agencies through licensing. Historically, this has not posed any difficulties for religious institutions, but Massachusetts now demands that all licensed adoption agencies be willing to place children with legally married same-sex couples.
However, Catholic Charities, the largest private social service provider in the state, could not in good conscience place its orphan children into homosexual households. After a bitter struggle, Boston Catholic Charities was forced out of the adoption business because it refused to embrace the state’s new definition of marriage. The result was doubly tragic because both orphan children and religious liberty took the hit for this misguided attempt at equality.
It seems more like the orphan children took a hit because of Catholic homophobia and irrational adherence to tradition in not even considering the viability of a same-sex set of parents. Is it so important that the couple be man and woman that the next best option for Catholic Charities is to perpetuate the orphanhood of the children? Should the civil rights of couples be ignored for the sake of the homophobic?
Two more real-world examples illustrate the danger. In New Jersey, the city of Ocean Grove recently yanked a Methodist institution’s real estate tax exemption because it refused to perform civil unions in its outdoor wedding pavilion.
In Iowa, the Des Moines Human Rights Commission found the local YMCA in violation of public accommodation laws because it refused to extend “family membership” privileges to a lesbian couple that had entered a civil union in Vermont.
Based on the ruling, the city forced the YMCA to recognize gay and lesbian unions as “families” for membership purposes, or lose $102,000 in government support for the YMCA’s community programs. Equal provision of benefits to all couples was not enough — only the YMCA’s explicit adoption of the state’s new definition of family fulfilled the government’s requirements.
Again, governments are effectively giving taxpayer money to religious institutions in the form of exemptions because those institutions follow government regulation. When the institutions refuse to follow government regulation, the government stops the exemptions. Are the coffers so empty that churches cannot go private and run things the way they wish? Isn’t the Catholic church one of the most wealthy entities in the entire world? So wealthy that it could feasibly ignore the lack of tax exemption, and facilitate the finding of homes for orphans, or buy out the YMCA and privatize it?
This list barely mentions the avalanche of employment discrimination lawsuits religious institutions will face, if, for example, employees at religious institutions publicly enter same-sex unions in violation of the institution’s teachings and employment policies.
Likewise, religious colleges and universities would run afoul of housing discrimination laws if they were to offer housing benefits for husband-and-wife couples but decline to do so for married same-sex partners.
Yet again, government money (which is taxpayer money) for adhering to the law. Not adhering to the law results in no government money or enforcement of the law. If churches don’t like it, they can go private.
Are we better off as a community if religious charities are forced to close their doors because the state redefines what is and is not a marriage? Are we better off if, for example, the Salvation Army is forced to close because of employment lawsuits, or if Catholic adoption agencies are forced to shutter their offices? What would such a result say about tolerating diversity and respect for religious liberty?
Lawmakers and judges need to consider all the consequences, intended and unintended, before embarking on this path.
There are plenty of non-religious charities that would be happy to take on the tasks of former religious charities that are destroyed due to their own arrogance. Respecting religious liberty is not equivalent to allowing religious institutions to do whatever they want with taxpayer money without being accountable to the taxpayers or the government. As a society, we can respect or refuse to respect religions as beliefs, but that has nothing to do with accepting the behavior of religious institutions. However, the government, the entity that takes and redistributes our tax money, is held to a higher standard. Remember, Congress shall make no law respecting….
-Procrustes
- http://www.examiner.com/a-1324540~Roger_Severino__Legalizing_gay_marriage_will_spark_lawsuits_against_churches.html [<]
- Loving v. Virginia, 388 U.S. 1 (1967) [<]
- The HalpernTransformation:
Same-Sex Marriage, Civil Society, and the Limits of Liberal Law, F.C. Decoste, http://www.marriageinstitute.ca/images/decoste.pdf [<]
Tags: almighty, Amendment, Army, ban, Becket, belief, Boston, California, Catholic, children, church, citizen, Civil Rights, Congress, Connecticut, Decoste, evil, family, First Amendment, freedom, fundamental, gay, god, Government, human, Iowa, irrational, Law, lawsuit, lawyer, LDS, legal, lesbian, liberal, Mass, Massachusetts, Methodist, moral, Morality, Procrustes, rational, Religion, rights, rules, Satan, Science, sex, tax, Vermont, Virginia, Washington, YMCA
Oi… reading that much intentionally blind stupidity gave me a headache! ^_^
I’m often regarded as having a strange position on this subject. I’m a lesbian that would fight tooth and nail for equal marriage rights, yet I couldn’t care less from a personal standpoint. I think marriage is a very stupid idea, I mean come on, nothing says love like a legally binding contract *rolls eyes*. People need to realize that just because you love love love! somebody now, you might not down the road and going through the divorce process will only make things worse between the two of you. But, to each their own..
Very well written article Procustes! You did a good job of exposing their real gripe concerning the issue. “We want to discriminate against evil homosexuals and still get paid for it!” The world may be on the slow track to fixing the bigotry religion has instilled but at least it is on track. Hopefully it’ll be a very different place by the time my daughters really have to deal with it.
Keep it up!
-Silvi
“Additionally, religious institutions that refuse to recognize a new state-imposed definition could be stripped of access to government programs, have their tax exemption denied and even lose the ability to solemnize civil marriages.”
Sounds great! Where do I sign?
This just reeks of all the civil rights issues of the last century. When the people refused to support integration, the government had to step in and force it upon them. This is no different, and it’s really sad that these people are going to have to be dragged, kicking and screaming, into a world where people have equal rights.
“Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”2
This quote is just unbelievable and would be serious comedy if it weren’t true. I believe churches have the right to practice their particular beliefs as pertaining to their doctrine.
But that is as far as their influence should go. There will be churches that would perform same sex marriages and civil marriages (not just civil unions but real marriages) are an option.
My sister married her husband in a civil marriage and they have been married for 7 years now.
Whatever the law should be the rules we follow if we are indeed a nation of laws instead a nation of bigots and priviledge.
You know, I’d hate to tell Mr. Severino that gays have been getting married for years and the sky hasn’t fallen. I do love it when Christians get their panties in a bunch saying that “oh noes, the gov’t will tell us what to do” when they will turn right around and want the gov’t to do just that, as long as it’s their particular narrow-minded version of one sect of one religion. Such complete hypocrisy.
I think it would be fantastic for these numbnuts to really spell it out for us exactly how their marriages suffer when gay people get married. Is this like not being able to enjoy your toys if someone you don’t like has the same exact thing?
oh, and http://www.youtube.com/watch?v=rdH1ZEbnIms
Good article. I think it is interesting that the only options available are the churches way or orphans on the street. What would Jesus do? It is like a childish tantrum or something.
Why do some people find it necessary to exert some kind of control over other people? Whole groups of people? How can they be so arrogant? It is so ignorant. It just screams ignorance.
[...] article is divided into quote boxes, my comments follow. Legalizing gay marriage will spark lawsuihttp://www.stateofprotest.com/2008/04/11/regarding-roger-severinos-legalizing-gay-marriage-will…McClelland repeats gay marriage opposition Australian Broadcasting CorporationAttorney-General [...]
There are so many issues here and all of them are quite tasty.
I am a Notary Public. I volunteered to be an official of my state government. After I read the rules and procedures for being a notary (and after my approval by the secretary of state), I swore to uphold the rules and procedures and assure the validity of all signatures. My position as a notary is one of privilege, and I can choose to exercise that privilege whenever I like. I cannot be legally compelled to notarize a particular document. The choice is mine. However, if I do choose to exercise my duties as a notary, then I must fully comply with the rules, procedures and laws set forth by the state.
Likewise, those who are license and sworn to perform marriage ceremonies are equally privileged to perform marriage and/or civil union ceremonies, but they cannot be compelled to perform them.
The similarities are: (1) the positions are voluntary, (2) you swear an oath to the rules, procedures and laws set forth by the state and (3) you must exercise all privileges equally. I cannot choose to notarize one document in a set but not the other 5. I cannot choose to notarize documents for white people but not for blacks. I cannot choose to notarize a document for a heterosexual but not a homosexual An official sworn to perform acts of marriage cannot do so only for whites but not for blacks. As officials of our state governments, we cannot violate other rules, procedures or laws in completing our sworn duties. Therefore, a person licensed to perform acts of marriage cannot pick and choose when to exercise his/her privilege when doing so is in violation of other laws. It is my understanding that my state government and I can be sued jointly or severally if I fail to comply with the my sworn duties or the law.
If you wish to be a 501c3 organization (United States IRS code 501(c)3), then you must adhere to all rules, procedures and laws of the United States. If the local hiking club can’t exclude blacks from membership, then neither can a church. If the hiking club doesn’t wish to be a 501c3 organization, then they can go private.
I would like for the interpretation of the granting of marriage licenses to overturn all marriages. If you wish to tie yourself to an individual, then do so privately. The government should not be in the business of granting permissions to enter into (or exit) contracts for personal service (marriage).
Umm, I noticed this mistake in your otherwise excellent post:
Don’t forget that the Catholic Church ruled that a little boy should be taken from his Jewish parents after he had been unwillingly baptized. Jews were not fit to raise a Catholic child.
They’re a loving, family-friendly bunch they are.
I read the article and I see partisanship on both sides. I think it is a genuine concern for churches to be sued for refusing to marry homosexual couples. That is actually the only concern I have with gay marriage. The debate over gay marriage has always been a religious one. What happens if churches are forced to marry homosexuals? This is against their religious beliefs, therefore persecution that violates the first amendment. That is why I believe that the government should get out of the marriage business. If two people want to contractually bind themselves together, let that be decided with lawyers. Have a contract written up and then notarized. The government is forced to recognize all contracts. Marriage is a very personal and private decision. Why have we allowed the government to intrude this much?
Part I.
Marriage, by state law, is more than just a contractual arrangement. States grant special rights to married couples, such as hospital visitation (without hassle), taxation benefits, property rights, etc., that one cannot successfully or easily replicate with a contract.
Marriage is both a legal and a social construct, but it's often viewed as either one or the other, giving rise to complaints about the treatment of marriage by those who want to view it in only one way or another. This is one reason why the "suing the churches" argument is odd. Churches don't legally marry people. People who are licensed to marry others legally marry people. Sometimes those people are church leaders. Sometimes they have no church affiliation. Of course, this varies from state to state, but no one is forced to marry in a church, by a church representative. Legal marriage is not a religious institution, it's based on state codes, which is why married people get certificates of marriage from the state, and a union not authorized by the state is not a marriage, no matter who blesses it.
Your argument about churches being forced to marry homosexuals is analogous to the argument that religious belief should not allow a doctor to refuse treatment of a patient due to religious belief. You're effectively arguing that a doctor should be able to let someone die because the doctor's religious beliefs prohibit the life-saving measure. This might be fine if applied to the potential good Samaritan, but not to someone who is licensed to practice medicine. In other words, if a preacher wants to become licensed (a legal thing) in a state to marry people, then the preacher must abide by the state and U.S. Constitution regarding non-discrimination, and should not be able to bring religious tenets in as an excuse for not performing a state law marriage, for that is a violation of the First Amendment.
Nothing stops that same preacher from unofficially (in the eyes of state law) marrying people of the preacher's choice in a church. The preacher can discriminate as much as churches tend to, and it's quite unlikely there would be a problem. People can socially/religiously marry in a church and then later officiate the marriage with the state, or the reverse. It happens all the time.
If a church receives a special tax exemption for contributions, then it shouldn't discriminate. If a charity cannot discriminate in such a way, then neither should a church be able to discriminate. It's interesting to see that the same arguments were used for interracial marriage so many years ago — now it is gay marriage.
Marriage is a legal contract — it is not a personal and private decision. Whether you try to create a marriage or dissolve one, it is not personal and private. Try to dissolve one and you shall discover how legal it is. The government is all over it. Nobody consults the church for dissolving the marriage. No pastor is involved. It's a war. It involves lawyers, a judge, sometimes a jury, etc. We haven't "allowed government to intrude this much" because marriage has always been a legal function, not a religious one.
Part II.
Now, if, as you desire, the government does get out of the marriage business, then all the benefits of marriage will dissolve. This might not be a problem at all, as long as it's applicable to everyone equally. In other words, if the church argues that its version of marriage should come with special government benefits (exclusively), the government should deny such a demand — that's First Amendment grounds again. What's incredibly odd is that you and others use the First Amendment to try to justify the marriage (pardon the pun) of religion and law, but avoid using the First Amendment in cases where there is a clear violation of establishment, such as a practically automatic tax exemption for all "officially recognized" religious institutions, which is terribly overinclusive as well as redundant, since the same tax code has a section giving tax breaks to charitable organizations. The intent of putting religious institutions in the tax code for an exemption was because they claimed to be charitable organizations — so, why specify religious institutions if charities are already covered?
The history of marriage is convoluted. You claim it is a very personal and private decision, but historically, it's one of property rights and lineage, which is very public and very important to others, including the government. Marriage wasn't intruded upon by the government, it was protected by the government in order to ensure inheritance. Who on earth do you think the government is, some extraterrestrial race come to rob us of our alleged tradition? No, we are the government and always have been, and the development of marital and other family laws were a result of a subtle and timeless negotiation between those who wanted to protect their property interests and those who wanted to protect society's property interests — often those being the same persons.
You also claim that the debate over gay marriage has always been a religious one. That's not true. There are practical, but presently obsolete, arguments that marriage (a legal arrangement with heavy interests in inheritance) would not work as it is for a same-sex couple because many of the related marriage and inheritance laws distinguish between gender, and would require complete revamping, if not complete destruction, to allow for same-sex marriage. This is an obsolete argument because we've had the same sorts of issues for interracial marriage (specifically with regard to slaves and former slaves) and marriage post suffrage. We overcame those hurdles because we knew what was right and what was fair, and a little bit of hardship for the naysayers was not sufficient enough to warrant denial of the pursuit of happiness through equal treatment under the law.
Even if there is a genuine concern by churches that they will be sued, that is insignificant justification to deny an equal opportunity to same-sex couples. There was a concern that slavemasters would go out of business. There was a concern that women would steal jobs from men (or would twist the laws in their favor) if they were given a chance to vote. There is a concern now among some men that they won't be able to legally rape their wives if they are given equal treatment under the law.
Whose concerns should prevail? Fortunately, our Constitution covers that. It's just up to the honorable and rational to make it happen.