Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases

[Steve Sanders]

The protected sphere for religion should involve that which is actually
religious.  Thus, churches should not be compelled to dispense sacraments to
those of whom they disapprove.  But when churches step outside that sphere
in order to play (as Roger puts it) a "robust role in public life," as they
have a right to do, aren't they necessarily expected to honor the public
laws?  
 
Roger seems to be arguing for special privileges -- freedom not only to
dispense sacraments in the religious sphere, but also freedom to serve as
arbiter of whose marriages may be solemnized in the public sphere.  But the
freedom to practice religion cannot mean that, when it enters the public
square, a religious institution gets to remain a law unto itself.  For
purposes of civil marriage, solemnization is not an inherently religious
activity.  Thus, why should a church be allowed to pick and choose which
marriages it will solemnize in the state's name?  Isn't the power to perform
solemnizations a privilege, not a right? 
 
Imagine we're in a state that doesn't allow same-sex marriage, but a house
of worship insists that it be allowed to create such marriages (and have
them fully recognized by the state) because failure to do so would violate
its freedom of conscience?  How is that different from letting churches turn
away those whom the law deems entitled to solemnization?  In both cases,
religious freedom is being used to demand a special niche where civil rules
are bent in order to conform to religious doctrines.
 
Steve Sanders
  


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From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Roger Severino
Sent: Wednesday, April 08, 2009 9:28 PM
To: religionlaw at lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on strict
scrutinyinreligious exemption cases




Art, I am curious to know why you think same-sex marriage states will not
(ever?) impose new regulations on the power of clergy to solemnize civil
marriages.  As for the religious liberty interests at stake, it is again,
not a question of direct coercion, but of whether religious institutions
that remain true to their religious identity will be allowed to retain a
robust role in public life when that identity conflicts with the priorities
or preferences of the state.  Religious solemnization of civil marriage is
just one manifestation of this issue--partnerships with religious
institutions and government in the provision of social services (like
adoption or marriage counseling) is another, and the list goes on.  Another
concern I had in mind was the fact that if the state does move to strip
clergy of their solemnization power, it may do so selectively.  That is,
only certain houses of worship would literally get the state seal of
approval to solemnize marriages while others would not and the state's
choice of winners and losers will turn precisely on each religious
institutions' theology of marriage.

-Roger Severino  


(Disclaimer: all opinions expressed are mine alone)



In a message dated 4/7/09 11:11:32 PM, rseverino1 at hotmail.com writes:



what is to stop Iowa from stripping dissenting religious institutions, and
only such institutions, of the power to solemnize *civil* marriages? 


That seems unlikely to me, but what if it does -- how does that deprive a
religious institution of its *religious* liberty?




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