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

[Ed Brayton]

I can't even recall any situation where a church refusing to perform an
interracial marriage has even become an issue. But this is almost certainly
not because no church would refuse to perform such a marriage. Surely those
churches identified with the Christian Identity movement would refuse to
perform such a ceremony. But this sort of thing tends not to happen and I
suspect it's because it would be very rare that someone would want to get
married in a church that would refuse to perform their marriage (whether for
racial reason or some other reason). People don't tend to pick churches at
random to get married in, they get married in churches they have long
affiliations with. It's pretty unlikely that someone in an interracial
relationship is going to be part of a racist church. By the same token, it's
also unlikely that a gay couple is going to be a part of a church that
preaches against homosexuality. They are far more likely to be part of one
of the many churches that take a liberal position on gay relationships, like
many UCC congregations. Choosing a church to get married in tends to be a
very personal matter, so it just isn't likely that someone would want to get
married in a church that does not welcome them as part of their community. I
think that alone makes it quite unlikely that Brad's future scenario would
take place.

 

As for Bob Jones, I think what happened there is clearly the exception. The
courts have been pretty consistent in applying the ministerial exception to
churches even if they have, in some cases like BJU, not been willing to
extend such exemptions to all religious organizations. It has never been the
case, as far as I know, that any court has ever forced an actual church to
host any event or perform any ceremony under any circumstances when they
have a moral objection to doing so. No court, as far as I know, has ever
sought to force an anti-gay church to hire a gay minister or even a gay
secretary. And as Mark said, no one has ever seriously suggested that the
Catholic church be forced to give up their objection to female priests or
married priests. I think the risk of forcing churches to perform any
marriage at all is vanishingly small.

 

Ed

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Saturday, April 04, 2009 4:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court
RulingOnMarriageUpholdsReligious Liberty, Says Americans United

 

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

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