Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Douglas Laycock]

One way to think about this is doctrine v. realism.  The gay rights movement (and most of the civil rights movement) say that all civil rights are of equal status and discrimination against gays is indistinguishable from discrimination against blacks.  Bob Jones says charities that discriminate on the basis of race lose their tax exemption.  So why not churches that refuse to perform gay weddings and recognize gay marriages.  The movement can hardly be surprised when people like Brad Pardee take them seriously. 

Bob Jones has a footnote that says this case is about a school and not the church itself.  That's pre-Smith and the footnote  makes less doctrinal sense today, but as David Cruz suggested, whether to perform a sacrament or religious ceremony surely falls in the church autonomy exception to Smith.  

And realistically, I share the view of the several list members who have said it just ain't going to happen.  Legislators and the executive branch will continue to view churches as different from other religiously affiliated institutions, and a public that increasingly supports gay rights will mostly not view it as just like race.  At least not in the near and medium term.   

I don't think in the long run either  I think that as same-sex marriage becomes more common, we will become more accustomed to distinguishing religious marriage from legal marriage, and churches that don't recognize same-sex marriages will become like churches that don't ordain women or don't recoognize legal divorces -- just a counter-cultural religious practice that doesn't affect people outside the church and is really no one else's business.   

But I wouldn't bet the farm on that.  The middle has to speak up, and the moderates on each side have to stand up to their own crazies. 

Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:

> How do list members see the Bob Jones issue playing out? To the 
> extent that gay rights issues are assimilated to issues involving 
> racial discrimination, there seems to be a serious possibility that 
> nonprofit institutions (including churches) that discriminate against 
> gay relationships or against those involved in gay relationships 
> could lose their tax exempt status. On the other hand, the Roman 
> Catholic church and other religious institutions that restrict 
> certain roles to men have not had their tax exempt status revoked 
> because of these gender-based practices. So perhaps Bob Jones is best 
> seen as limited to racial discrimination.
>
> Ed suggests that there are churches that refuse to perform 
> interracial marriages. I'm not aware of any, but that may not mean 
> much. If Ed has specific information in this regard it would be good 
> to hear it. For information about a recent volume of the Criswell 
> Theological Review on interracial marriage, see 
> criswell.files.wordpress.com/2009/03/editorialctrsp09formatted2.pdf 
> and criswell.wordpress.com.
>
> Mark Scarberry
> Pepperdine
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu on behalf of Ed Brayton
> Sent: Sat 4/4/2009 9:38 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Americans United: Iowa Supreme Court RulingOn 
> MarriageUpholdsReligious Liberty, Says Americans United
>
>
>
> I think Brad's comparison to interracial marriage in the context of churches
> being forced to perform gay marriages cuts against his argument. There are
> certainly churches that do refuse to perform interracial marriages in this
> country, probably a whole lot of them. Do you know of any case in which
> anyone has even suggested, much less been successful in arguing, that they
> be forced to do so? To say that it's "not a stretch to say that there are
> those who would support saying a church can't refuse to perform marriages of
> African-Americans" is a far cry from showing that there is even the most
> remote chance of success if anyone actually tried to force them to do so.
> There simply is no constituency with any influence that would push such an
> idea, either with regard to interracial marriage or same-sex marriage. The
> vast majority of people who support same-sex marriage (like me) reject the
> idea of forcing churches to perform them and would strongly support the
> inclusion of explicit exemptions in any law establishing such unions. It
> seems to me that this is most obviously covered under the ministerial
> exception and I find it almost inconceivable that any court would rule
> otherwise. It has now been 42 years since Loving v Virginia and no one has
> ever attempted to do what you use as evidence of the slippery slope here. I
> think that tends to show just how unlikely your imagined future is.
>
> Ed Brayton
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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