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

Fri Apr 10 03:40:07 PDT 2009

Art, it sounds like you think houses of worship will retain their power to solemnize civil marriages out of sheer inertia more than anything else.  But that suggests to me that the status quo can be moved even in the absence of a widespread clamor for change so long as the interests are passionate enough and well-organized.  And I think both criteria are met in this case.  Take for example Harry Knox, director of the religion and faith program of the Human Rights Campaign, who recently told a San Francisco newspaper that "the Knights of Columbus do a great deal of good in the name of Jesus Christ, but in this particular case [supporting Proposition 8], they were foot soldiers of a discredited army of oppression." http://www.ebar.com/news/article.php?sec=news&article=3805.  If religiously motivated opponents of Prop. 8 are seen as foot soldiers of oppression, what are their clergy if not the officers who wield a club of their own via the solemnization power?  Given that Knox has been selected to the President's new Faith-Based Advisory Council, shouldn't his rhetoric, and its implications, be taken seriously? 

Though relevant, I think the fact that no state has yet withdrawn clergy's power to solemnize civil marriage is a poor indicator of the future because it obscures the rapidly changing forces and trends at work that may well lead to that first domino falling.  In this regard, I try to avoid thinking of the Anglo-American tradition of civil
marriage in Goodridge terms, that is, as beginning and ending as a pure creation of the state.  Firstly, I don't think the Goodridge view is accurate historically.  Secondly, and more to the point, that view utterly fails to account for clergy's current role in civil marriage solemnization.  Rather, I find it useful to see civil marriage as arising from state recognition of preexisting religiously-regulated institutions whose civil function over the centuries has secularized to the point where religious marriage
is no longer required by the state, but is still recognized as having civil effect when and where performed.  In some countries,
this secularizing trend has gone further and at times turned into outright hostility to religion
such as during the French Revolution and the Kulturkamp.  In fact, to this day in France, Turkey, and Germany it is *illegal* to get married in a purely religious ceremony if one has not first been married civilly (though German law may have changed this year). 
If such an extreme result is possible in modern liberal democracies,
the stripping of religious marriages of their civil effect in this country does not seem to me to
be so far-fetched, especially when one considers the rhetoric of gay rights leaders like Mr. Knox. 

Art, I'm curious to know why you "certainly wouldn't suggest that the state should withdraw the power to solemnize civil marriages."

Regards,

-Roger Severino

From: ArtSpitzer at aol.com
Date: Thu, 9 Apr 2009 17:55:28 -0400
Subject: Re: Impact of same-sex marriage rulings on strict scrutinyinreligious	exemption cases
To: religionlaw at lists.ucla.edu

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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