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

Thu Apr 9 14:55:28 PDT 2009

Roger Severino asks why I think states won't withdraw the power to 
solemnize civil marriages from churches.   My answer is that I assume most state 
legislators were married by clergy, and want their children and grandchildren 
to be able to be married by clergy, and I don't think it's likely that 
situation will change in the predictable future.   Nor do I think there's any 
widespread desire, even in the activist gay community, to withdraw the power to 
solemnize civil marriages from anyone.   If anything, I think the desire 
among people who characterize themselves as "progressive" is to enlarge the 
universe of those who can solemnize civil marriages so that, for example, any 
competent adult   could get a temporary commission from the state to perform 
a particular marriage on a particular date.

I generally agree with Steve Sanders' response to Roger's assertion that 
withdrawing from churches the power to solemnize civil marriages would 
infringe on religious freedom, and I think Prof. Berg's riposte ("almost no clergy 
other than the marriage-mill ministers adopt the “virtually no questions 
asked” rule that is the baseline eligibility for civil marriage. . . . Steve’s 
argument therefore would logically exclude virtually all churches from 
performing marriages with civil effect.") isn't correct.   I don't think Steve 
Sanders was suggesting -- and certainly I wouldn't suggest -- that the state 
must or should withdraw the power to solemnize civil marriages from any 
church that didn't adopt a “virtually no questions asked” rule.   

Indeed, it seems to me that the very facts that Prof. Berg cites -- that 
"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.," and the fact that 
no state has ever withdrawn from such churches the power to solemnize civil 
marriages (has any legislator even suggested it?), suggests how unlikely it 
is that the power will be withdrawn from churches that don't adopt the same 
criteria for marriage that are used by the state.

Art Spitzer
ACLU (speaking only for myself)
============

In a message dated 4/9/09 2:31:29 PM, TCBERG at stthomas.edu writes:
> 
> 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
>  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?

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