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

[Roger Severino]

>> 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? 



But therein lies the problem Steve.  Religious institutions and
individuals often are not "stepping outside" of their religious roles
when engaging in public endeavors, but are merely following religious
dictates or callings in an integrated fashion.  For example, Catholic
Charities in Boston did not begin providing adoption services around 100 years ago out of
mere philanthropy, but out of sincere religious conviction.  But unfortunately, by 2005 it could no longer "honor the public laws" because the public laws would
not in turn respect its deeply-held religious beliefs that prevented it from placing
children
under its care in same-sex households.  Catholic Charities
did, in a way, honor the laws by withdrawing from the adoption
business entirely instead of violating the law or sacrificing conscience.  But didn't religious liberty suffer as a result?  And who
benefited exactly?  Certainly not orphan children who lost a major
source of family placements (especially in hard cases).  And same-sex couples looking to adopt are limited to using the exact same
adoption
agencies available to them as before the controversy.  The state could have
easily accommodated Catholic
Charities' beliefs in a live-and-let-live fashion and I would not have
called that a granting of special privileges or a conversion of Catholic
Charities into a law unto itself.  I think a similar analysis applies to marriage and suggests why houses of worships should still be able to rely only on their theology when choosing what relationships they will solemnize through a dual religious and civil ceremony.  Ironically, this dual arrangement likely furthers a stated interest of courts that approve of same-sex marriage--that of increasing the number of committed couples that enter into civilly-recognized marriages. 


-Roger Severino




From: stevesan at umich.edu
To: religionlaw at lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious	exemption cases
Date: Wed, 8 Apr 2009 23:06:04 -0700










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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