The Pooh-Poohing of Concern.
[UPDATE]: I had posted this about an hour ago, and we had a good number of comments on it. Unfortunately, our server has suffered a glitch, and everything posted over the last hour, including comments, has been lost. I blame the Republicans.
Dana Pico has a valid concern:
I have one, and really only one, concern [on gay marriage]. I want churches protected from criminal and civil liability if they refuse to perform a same-sex marriage. Many of our friends on the left pooh-pooh the idea that churches could be compelled to perform such, under the First Amendment, but seem strangely reticent to be willing to enact more explicit protections for churches in the event that same-sex marriages become legal.
To me, it’s simple: it doesn’t take much imagination to guess what could happen if an interracial couple went to a church, and asked to be married, and the minister refused because his church does not believe in interracial marriages. That minister and his church would face being sued, because they had discriminated on race, and churches fit the definition of a public accommodation. Since we license ministers to perform marriages, they have a dual religious-state legal function.
Well sooner or later, a same-sex couple is going to present themselves to a Catholic priest, and ask for a nuptial Mass. The priest will have no choice but to refuse, and he, and his parish, and his diocese will all get sued. A Ninth Circuit Court of Appeals ruling which undid a discharge under the military’s “don’t ask, don’t tell” policy held that classifications based on sexual orientation would be examined under a higher level of scrutiny; Patterico explains it here. This could mean that discrimination based on sexual orientation might be held to the same standard as discrimination based on race.
In the event of legally recognized same-sex marriage, we need solid protection for churches.
Excellent point, Dana, one which I completely agree with. And I would be willing to offer such protections, if I had that power. For in my mind, as I have said before, the whole way our government approaches marriage is wrong. The state should not be performing marriages. All the state should do is grant legal sanction to the union of two consenting unrelated adults, regardless of gender or orientation. It should not be issuing Marriage Licenses, but rather Union Certicates. If you want to get married in a church, you can, so long as the church agrees to marry you. If a church refuses, your only recourse would be to find a church that will. And there are churches that will marry homosexuals. For example, the UCC. Some Episcopal churches will.
Gay marriage is gaining legality mostly through the courts striking down same sex marriage bans as unconstitutional, except in Vermont, which becomes the first state to legalize gay marriage via legislation. And the bill enacted over the veto of the Republican Governor of Vermont contains this provision: (PDF)
This section does not require a member of the clergy authorized tosolemnize a marriage as set forth in subsection (a) of this section, nor societies of Friends or Quakers, the Christadelphian Ecclesia, or the Baha’i Faith to solemnize any marriage, and any refusal to do so shall not create any civil claim or cause of action.
Done and done.
Interesting that Dana brings up the Catholic Church — they’ve been denying marriages for straight couples for years.
True, nemski.
Honestly, I am being a lazy gasbag today, so I’m not going to look it up, but I twice paraphrased the ACLU’s statement on this (from a few years ago) which emphasized the church’s First Amendment protection to not be forced into performing nor recognizing a same-sex marriage/union. It’s over on DP. Just root through my posts.
GRANTED, I do understand some people having concern that this could be challenged in a district court or Supreme Court and then the interpretation be waffled, so to Dana and DD’s point, it probably wouldn’t hurt to solidify the language. As DD could probably point out, much of the constitution and civil law are built upon a mass of weasel words (meaning non-concrete).
Oh, to add to my #4, I don’t mean solidifying it with a freaking amendment to our country’s or state’s Constitution clarifying man+woman=alimony. I mean a statute specifically stating a church is indeed given First Amendment protections, much like what Vermont did above.
I’ve commented at length here about splitting the business of who gets to oversee the creation of a marriage contract (civil unions) and who gets to perform marriage sacraments. Adding specific protection to churches that still lets them pick and choose who they bestow the sacrament on is reasonable, but churches choose all of the time who they allow to participate in their sacraments, so it isn’t like they aren’t in the sacrament police business already.
What we should do is outlaw the ability of Church’s to act as a proxy for civil marriages. These should only be done by the state.
I have to say that part of the law makes me a little queasy but I’d guess I’d be willing to go along with it. I agree that the state should have never been in the “marriage” business in the first place, which is leading to all this confusion about civil unions vs. marriage. I think because the state calls it “marriage” it doesn’t seem quite right to now call it “civil unions” and pretend it’s the same things.
I’m completely o.k. with a religious organization practicing discrimination as long as it’s not taking government funds to do so. It makes me angry though, when churches (or other organizations) use federal and state dollars and practice discrimination with them. (For example, Catholic hospitals with state support denying emergency contraception to rape victims).
Seriously, though, I don’t think having such a clause in the law will stop lawsuits from happening. I think you could technically say that some churches could deny marriage to interracial couples under the clause above, but won’t because of societal pressure.
It looks like they are all here,
but the count is lost. Looks like this comment fixed it.serious weirdness… Apparently there are a number of attacks going on in the Interwebz. On got the better of our database server and we ended up with some corrupted data. I’ll keep an eye on it.
After the ceremony is there really any difference between the terms marriage and civil unions? I mean, will anyone say we were civil unioned on the beach?
Aw crap…you mean that post yesterday about King Smitty and all his goodness was just a viral bomb? Damn it. I had the kumbaya party all set for tomorrow, too. Eff u!
😛
I mean, will anyone say we were civil unioned on the beach?
Hmm…kinda gives me a whole new image to the term “civil unioned.” 😈
I have no problem extending this protection to churches. For example, certain country clubs don’t admit Jews or blacks or women. These are private clubs, yes, so it’s fine. However, the USGA doesn’t allow the US Open to be played at these courses.
So, churches get the protection Dana describes, AND THEY LOSE THAT TAX EXEMPT STATUS…
… Apparently there are a number of attacks going on in the Interwebz…
Geek – I just read on CNN that it appears that Conficker went active today. 👿
Thanks for the link, DD, but for some reason, I never seem to receive trackbacks or pingbacks from y’all, and I didn’t see this article until this morning. Did you change a setting?
Hi Dana – no changes… I’ll look into the way that those work and see if we can figure it out.