Impact of same-sex marriage rulings onstrict scrutinyinreligious exemption cases
hamilton02 at aol.com
hamilton02 at aol.com
Fri Apr 10 07:22:41 PDT 2009
I am not nearly as concerned as Chip is with the motivation of the religious groups or their agendas. They are political actors acting for self-interested reasons, religious or not. My concern is that legislators fail to ask the tough questions regarding the potential for harm resulting from any request for exemption. They should not expect full disclosure from religious lobbyists re the actual negative impact of an exemption.
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Ira (Chip) Lupu" <iclupu at law.gwu.edu>
Date: Fri, 10 Apr 2009 09:55:29
To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
Subject: RE: Impact of same-sex marriage rulings on
strict scrutinyinreligious exemption cases
For a number of years, religious conservatives have been using these religious liberty arguments as a sword (a club might be a better word) to buttress political campaigns against same-sex marriage. Roger Severino's article fits that model -- he included over-the-top "threats to religious liberty" (like "hate speech" prosecutions of pastors for anti-gay sermons -- Roger never mentioned that U.S. law would firmly preclude that) -- along with many other more realistic threats as a means to argue against same-sex marriage and other gay rights, and that set of arguments made its way into the political debate in California and elsewhere.
Now that the winds have started blowing the other way (backlash to Prop 8, Iowa court ruling, Vermont legislation, legal results in cases involving commercial enterprises and public accommodations), religious conservatives want to use religious liberty as a shield. With respect to legitimate claims of right (sermons by pastors, faith community selectivity about who may get the sacrament of marriage), virtually no one on this list or elsewhere wants to break that shield. But religious conservatives also want discretionary political accommodations, such as exemptions from laws governing adoption agencies, employment practices by government contractors, and conditions of access to publicly subsidized benefits.
So my question is this -- are the proponents of these exemptions really interested in "live and let live"? Or is this just "let us live" and we'll keep fighting against the right of others to live in equal dignity? If the latter -- this is one-way toleration -- it deserves no respect. If the former, I think that people need to see some evidence of good faith. So how about these for starters: In explicit exchange for carefully crafted exemptions for religious organizations and communities (not landlords and doctors and photographers), those communities promise to support repeal of federal DOMA, repeal of state DOMA's, non-interference by the U.S. House of Reps with same-sex marriage policy in DC, and promise the end of opposition to the extension of same-sex marriage (no more Prop 8's).
Is there a political deal that can be struck here? (I could support it.) Or is all this just a one-way demand for respect?
---- Original message ----
>Date: Fri, 10 Apr 2009 06:40:07 -0400
>From: Roger Severino <rseverino1 at hotmail.com>
>Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases
>To: <religionlaw at lists.ucla.edu>
>
> 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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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
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