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

[Berg, Thomas C.]

Churches can and do refuse to perform the marriages of those who the clergyman thinks are not ready, or who don't have some connection to the church, or who don't go through a religious counseling class, etc., although all those people are entitled to civil marriage.  So far as I can see, almost no clergy other than the marriage-mill ministers adopt the "virtually no questions asked" rule that is the baseline eligibility for civil marriage.  But the church's decision not to solemnize has no effect on the state's rule, because the couple can typically go to any one of a number of public officials with ease.  By contrast, in Steve's hypo, a church's claim to be able to perform a marriage with civil effect when the state's laws don't recognize it would clearly affect the state's policy.  It seems to me that's a significant difference.

Steve's argument therefore would logically exclude virtually all churches from performing marriages with civil effect.  Perhaps that's where we will or should go; a complete separation of civil and religious marriage has a logical consistency.  But it's not obvious that we should take that step - eliminating the state message of the solemnity of civil marriage that is sent by including clergy among those who can perform marriages, and telling all religiously oriented couples they should get married twice - in the name of avoiding church refusals to marry that don't burden anyone's access to civil marriage.

If other on the hand, only some churches end up being excluded, as Roger Severino suggests may happen, that in my view would indicate that the exclusion was not based on which churches caused more harm to the state's policies - for again, couples have easy alternative means.  It would indicate the exclusion was based on the state's disagreement with the group's theology.

-----------------------------------------
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, Law,
     and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
----------------------------------------------------------------------------

________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Thursday, April 09, 2009 1:06 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases

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


________________________________
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?


<http://windowslive.com/explore?ocid=TXT_TAGLM_WL_allup_1a_explore_042009>
________________________________
Rediscover Hotmail(r): Get e-mail storage that grows with you. Check it out.<http://windowslive.com/RediscoverHotmail?ocid=TXT_TAGLM_WL_HM_Rediscover_Storage1_042009>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090409/87c6ab12/attachment.htm>