Posted my thoughts on the California ruling a little while ago at Inside Catholic - my concern is for the welfare of the churches, and by churches I don’t mean only Catholic churches but all religious affiliations that could possibly find themselves hounded by the government and lawyers on this issue.
…once again - as with Roe v Wade, an activist court (not the legislative body) has overturned what was essentially “the will of the people.” That never serves us well. And depending on who gets into the White House, we may see perhaps as many as three SCOTUS justices replaced by judges of an activist bent.
[...] I frankly think it might be a better thing if the religious sacrament of marriage were separated from the legal action of marriage, and vice versa. Perhaps it would be wise for us to adopt the practice of France, where the civil marriage takes place at City Hall, and the Sacramental marriage at the church.
A civil union is a mere legality. It can be defined any way the state wishes, but it leaves the church out of the question of who may “legally” be married and protects her ability to bestow sacraments and practice the faith free from “discrimination” lawsuits and the inevitable punitive damages that can materially destroy her.
Depending on how the courts go, we could conceivably see this issue coming up in a lot of states, and then there will be a press for federal recognition of gay marriage. If the church does not take steps to protect herself now, by advocating this sort of separation of duties and intents, she will be spending a lot of time and money (and losing tax-free status, of course) fighting for the right to practice the faith without government interference.
Bottom line: the churches manage to perform funeral rites without signing the death certificates; they should consider performing the marriage rites without signing the licenses, and distancing themselves from co-operative functions with the government which may open them up to lawsuits originating from and arguing a strictly secularist position.
I actually wrote something touching on this possibility last summer.
I have no problem with civil unions (my line gets drawn whenever someone implies that a church must go against its own theology and sacramental understanding of marriage), so I can understand where Don Surber is coming from in his post, and I agree with him about the “zero-tolerance strain” of liberalism that too often shuts down an exchange of ideas…
Seems to me that in the name of “tolerance,” - since everything is about the T word - the churches are due their fair of “tolerance” too, in the name of right to the free practice of religion.
While we debate that…some folks better think long and hard about how they’ll feel if the next president gets to name 3 new SCOTUS judges - for life. Patterico also expresses some displeasure at the judicial activism superseding the will of the people.
UPDATE: My L’il Bro Thom, holding the same opinion as Patterico, was challenged by his boss, who said, “sometimes the people get it wrong!” To which Thom replied, “but this is a Republic. It’s not up to the courts to make that decision. Remember how you hated it when you thought the SCOTUS overturned ‘the will of the people’ after the 2000 election?”
And please, don’t email me about the SCOTUS thing; I KNOW the decision to overturn the FL court was 7-2, I know the SCOTUS did not “seat” Bush and I know that Gore initiated the court action. But Thom’s point was a good one, too: If you didn’t like what you THOUGHT was “judicial activism” in that case, you should not like what is TRUE activism in this one.
Ed Morrissey at Hot Air has (very typically) the best commentary on this subject I’ve yet read:
Government recognition of marriage is a policy decision that should remain in the purview of the people. After all, no one argues that relationships require government sanction; two people can cohabitate without permission, as long as they’re consenting, unrelated adults. They can form contractual partnerships just like any two adults can, as long as the purposes remain legal. The argument in this case is for government sanction of the relationship as marriage — and as such is a public policy decision.
Had the people of California chosen to recognize gay marriage through legislation, I’d accept it — and in truth, I’d consider that a more rational policy than civil unions, which basically reproduce marriage with a different label. Government stopped being in the sacrament business at the moment it offered no-fault divorces. A civil-union contract has more binding power than does marriage these days. States would do best to leave the term “marriage” as an exclusive province of the churches and have all couples sign civil-union contracts instead, and let the individuals determine whether they feel “married” or not.
Pursuing Holiness also has a very interesting take on a separate angle: Why not let gays have marriage? We’re not using it. More thoughts on that by Maureen Martin (satire).
Related: A friend points out that in Iran, the government interferes with the free practice of religion. We don’t like that about Iran, so we should probably not allow that to happen here.
For those of you calling me an alarmist, Bainbridge gives food for thought.
More coverage:
Volokh has thoughts on the “slippery slope”
Sr. Toldjah
B. Daniel Blatt at Pajamas Media - I’m surprised there is no round-up.
Glenn wonders, did CA just hand the state to McCain?. I doubt it.
Allahpundit looks at the decision.
STACLU
True North
National Review Online has a lot.
May 15th, 2008 at 9:33 pm
Scary thing is, Anchoress, I’m already living the two-marriage idea.
Legal wedding for job-related purposes, then a Church blessing at a later time.
May 15th, 2008 at 11:48 pm
It has long been clear that truth and reason no longer exist as principles of law. And it has also been clear that relativism, arbitrariness, and raw power have been instituted in their place.
Far from merely eating one fruit, the law has consumed an entire orchard, and it believes that it can mold and alter and bend truth and reality to fit whatever subjective or political ends it desires. Behold the modern judiciary — gods on high who can create their own truths ex nihilo.
A “word” has no instrinsic meaning, and is certainly not the logos, but is merely a construct that can be arbitrarily redefined at will upon the slightest of whims, along with the concept behind the word, to mean whatever they want it to mean. Existence is whatever they say it is.
May 16th, 2008 at 7:24 am
[...] The Anchoress has a thoughtful take on the [...]
May 16th, 2008 at 7:41 am
Isn’t this principle already pretty settled? I haven’t heard of any church being forced to perform a marriage that they did not approve of, for whatever reason, even if the state said that marriage was perfectly legitimate. Churches can, and do, refuse to perform marriages for heterosexual couples who don’t meet whatever requirements that the church has on them, so I don’t see why we would expect this to be any different with homosexual couples.
May 16th, 2008 at 7:54 am
The California Supreme Court 4-3 pro-gay marriage ruling
I haven’t had a chance to look at the opinion on the CSC ruling in favor of gay marriage (I plan on reading it this evening), but wanted to link up to others who have and wrote about it. National Review has several opinion pieces up today devote…
May 16th, 2008 at 8:59 am
I think that the fears that clergy of any denomination might be forced to perform “marriages” between two people of the same sex are rather silly. Marriage between divorced people is certainly legal and any validly divorced person (validly divorced under the law) has the legal right to marry. But the state has had no right to force Catholic priests to preside over such “marriages.” Someone who has taken vows of celibacy as a deacon or religious certainly has thelegal right to marry in every state in the union, whether the Church has dispensed him/her from those vows or not, but the state will not force the Catholic church to preside over those weddings, either. Catholics may not marry non-Catholics without specific permissions (marry a Protestant, the paperwork is simple and routine; marry a member of a “cultic” religion — e.g. Hindu or Buddhist — and you need permission from Rome). The state neither enforces those limitations nor requires the Church to have anything to do with those marriages which do not have the proper Church permissions. The state is not always more permissive than the Church, either — in some jurisdictions first cousins may not marry under any circumstances, while the Church will permit it; in some jurisdictions the state will allow marriage with parental permission at certain ages while in the Church you are either old enough to marry or not and your parents’ permission doesn’t matter.
From a certain perspective, Catholics don’t really have a lot of “skin” in this particular issue of gay marriage. There are a LOT of things that the state calls “marriage” that the Church calls “fornication” and “adultery”. The notion that the Church and the state are standing in solidarity to defend the definition of “marriage” and that this would destroy that solidarity is silly. Marriage is a topic where Church and state parted company long ago, and gay “marriage” is just one more thing that the state allows that the Church teaches is wrong and sinful.
May 16th, 2008 at 9:05 am
[...] I find Anchoress, as usual, to be eminently sane and reasonable when examining this topic: [...]
May 16th, 2008 at 9:11 am
[...] main concern is the same one The Anchoress has expressed, “my line gets drawn whenever someone implies that a church must go against its own theology and sacra….” I’m concerned that in the name of “human rights,” and [...]
May 16th, 2008 at 9:15 am
For many of these progressives tolerance is afforded to only those that agree with them. Sadly, I think this will get far worse before it gets any better. We need to pray for conversion of heart for our country. God bless… Padre Steve, SDB
May 16th, 2008 at 9:23 am
I think your concern for the welfare of churches is spot-on. While I’m not too exercised about the ruling (because I think heteros abandoned marriage a long time ago, so why have a hissy fit now?) the New Mexico case of a photographer fined $6600 for refusing on religious grounds to film a same sex commitment ceremony was troubling. Thanks to this ruling I think there will be a lot more along those lines. I would not like to see a church fined for refusing to rent or perform SSM ceremonies.
May 16th, 2008 at 9:23 am
I don’t know, Anchoress. What worries me about this opinion is that the court recognized that CA had granted equal legal RIGHTS, but decided that same sex couples could not be debarred from marriage on the basis that it seemed like somehow such couples were less APPROVED:
“The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.3″
and
“One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”
So this decision was grounded in the theory that the CA population must not maintain a distinction that same-sex unions are different than opposite sex unions. But of course they are. And of course most individuals, if they were asked whether a child put up for adoption should be placed with a same sex couple or an opposite sex couple would respond that if both couples were qualified otherwise equally, it would be far better for the child to be placed with the opposite-sex couple, because in that family the child would observe and absorb the male-female interactions and roles that play a big part in socializing children well.
So what this decision is really about is embodying a narcissistic individual focus (every adult should get equal approval) into the law rather than retaining the definition of marriage as a child-focused institution.
On that basis I would have to say that the recent Catholic comments on the duty to oppose this sort of thing seem rather justified by this decision and the NJ decision. Embodying narcissism in law cannot work out well for society in the long run.
May 16th, 2008 at 10:17 am
Dave, the principle is far from settled. There is a case pending, in MA - unless it’s been settled, I don’t know - where two gay men who wanted a wedding in a church (I can’t remember if it was Methodist of Presbyterian) were turned down and who initiated action. Just recently, a Methodist church had a run-in about the use of a pavilion of some sort. The church council (or whatever they’re called, I apologize for not knowing) said “no,” and eventually, if I am remembering the thing rightly, the couple eventually got to use the pavilion - again I believe there was a threatened lawsuit. Believe me…it’s not settled. Particularly if the issue goes federal, you’ll see churches threatened left and right.
May 16th, 2008 at 10:20 am
Cathy, the difference is that divorced people are not recognized as an oppressed minority needing protections, and they are not inclined to call “discrimination” if their church won’t marry them…usually they just go to another church that will. There WILL be some churches open to the idea of gay marriage, but eventually - and you know it will happen - some couple is going to tell the more conservative Protestant churches, and the Catholic or Orthodox ones, “marry us,” and when that gets refused, they’ll initiate a discrimination suit. It’s inevitable.
May 16th, 2008 at 10:45 am
Anchoress, is this the case you reference in #12? My google-fu might be malfunctioning but it sorta fits. That case is similar but complicated by the fact that the church had tax-exempt status that required it to open the property up to the general public; that seems to be the main reason they lost. Churches are going to have to be very careful about accepting tax breaks or government money because it’s certainly going to be brought up in the inevitable discrimination suits.
May 16th, 2008 at 11:12 am
[...] The Anchoress - Gay marriage and the churches - UPDATED [...]
May 16th, 2008 at 11:15 am
Of course lawsuits are as American as baseball and apple pie, and in America you can sue for $67 million over a lost pair of pants. But it’s also America where you lose the lawsuit — and your job — when you sue someone for $67 million over a lost pair of pants.
As for divorced people not being an oppressed minority, in both Jewish and Muslim law divorces are granted in a way that is discriminatory against women, and in the US women are legally a “protected class” in discrimination law. (Under the law, women have more protection than gays against gender bias.) In both Jewish and Muslim law, a woman can be divorced without her consent, but a man cannot. Legally, the closest case to a same-sex couple suing a religious group demanding a wedding ceremony would be a Jewish or Muslim woman who divorced her husband, and the husband refused to grant her a religious divorce, and then when the woman wants to re-marry she sues the temple/synagogue or mosque demanding that they perform the marriage. This is already decided law — even though women are a “protected class”, and a woman in this position would get a marriage license no problem with the state, the state will not force anyone to actually perform the wedding.
May 16th, 2008 at 11:19 am
I think activist judges have existed since this country has founded, and whether you find it offensive or not depends on whether the decision was in favor of your against them. The purpose of the courts is to decide what is right, not to determine what the majority would want. Granted, it is what is right based on the constitution …which is why if an amendment to the Constitution of California states that marriage can only be between man and woman, the court cannot overrule that.
I am in favor of “gay marriage”- I believe everyone should have the same rights. I don’t get how hurting one group of people makes the rest feel so superior, or why that’s necessary. You don’t believe in gay marriage, that’s fine- don’t marry someone of the same sex :-).
I am not in favor of forcing any church to act against their beliefs. In the cases you’re talking of, anchoress, I think the answer should clearly be that a religious group doesn’t have to provide ANYTHING to any couple unless they so chose.
May 16th, 2008 at 11:21 am
Steph - if only the rest of the world were as sensible as us!
May 16th, 2008 at 11:28 am
While I go back and forth on this one, I don’t think it ultimately wise to cede to our society the secularized little niche into which they are itching to stuff us. We are not just Christians but citizens, and as citizens have a duty to help our society wade through muddy ethical and moral waters.
That the decision also bases its reasoning not on matters of law but on matters of official stamp of approval is also troubling. Who is next on the slate of morally deviant groups which will demand the “respect” (i.e., approval) they think they deserve?
May 16th, 2008 at 11:29 am
Cathy - it seems senseless to me to argue “whether or not” the lawsuits I am envisioning will happen. They will or they won’t, and one of us with be right and one will be wrong.
But in case I’m right, I say “protect yourselves, churches!”
May 16th, 2008 at 12:12 pm
I suppose I am having trouble seeing what the problem is. The Church for all practical purpose is just one of the people that perform the ceremony. I still have to go down to the CLerks OFfice and get my License. I Still have to meet State requirements so there is no impediments. THe Church has nothing to do with that. THe Church can give me a dispensation to marry my Cousin but I am still prohinited by State law from doing so. THe State can divorce people in six months after living apart regardless of what the Church says. The Church cannot impose its on impedimetns on the State.
I mean I have been living under a French Family COde system all my life down here and it works out.
THere are other issues. Besides the fact that the Church is very opposed to CIVIL UNIONS of this type. See the Holy Fathers remarks to the BIshop of Hungry this week
However the marriage issue is a red herring.NO one is going to force Churces to marry homosexuals. However the real issue here is in many other areas. SUch as hiring and having to provide benefits to Same Sex COuple in Church supported bodies. Whether they be schools, Hospitials, etc etc. That is what we shoudl keep out eye own
May 16th, 2008 at 12:14 pm
One other thought. Laws are a mirror of our culture. Even ourt Christian culture. We say that LAWS do not contain morality but that is false. They are mirrors of that all the time.
WHEn something is legal it is often given and thought to be moral. That is a real effect.
May 16th, 2008 at 12:17 pm
Lsus - its’ all true that people have to go to city hall to get the initial license, etc…but it is, currently, the ministers are the ones who administer the vows and sign the legal document which the gov’t then files. All of the other issues you mentioned will be real issues…and yes, depend upon it…some couple, somewhere, will - unless the church takes some actions now - respond to a church’s refusal to marry them with a lawsuit. It is inevitable.
May 16th, 2008 at 12:33 pm
[...] Anchoress examines the possible fallout to the Churches in her InsideCatholic.com article, and follows up with more on her blog. A civil union is a mere legality. It can be defined any way the state wishes, but it leaves the [...]
May 16th, 2008 at 12:43 pm
Anchoress I guess a Law suit is inevitable but the likelihood that it would succeed is about nil. I mean there is just not the foundation for it. In the end it seems that under this new plan I will be just paying more for a Civil Servant to say a few words.
LEt me give a racial example. There are indeed “White Supremist” CHurches in this nation. THink Christian Identity among others. Despite all the massive laws on racial discrimation the State has not been able to SHut them down and these Churches down because they don’t perform Interracial weddings.
After sitting down and reading this Opinion this morning needless to say it is troublesome. For all the obvious reasons the Dissent points out. However in the end one State has now put homosexuals in a suspect class according to Equal Protection analysis in which one needs a “Compelling” reason to discriminate against. IN real life terms Compelling means that the reason for the discrimination is rarely found to be sufficent.
This is why the issue will not be Marriage as to the Catholic CHurch rights to perform it according to its own requirements . We can distance ourselves all we want if we please from that. But that will not change what happens as to hiring in Catholic Hosptials, Universities,Adoption programs , and the numerous Charitable organizations we run. That is where the lawsuits will come and that is where the true threat to our liberty and things such as tax exempt status lies
I think one of the excellent Observation was made by Crunchy Con yesterday
http://blog.beliefnet.com/crunchycon/2008/05/gay-marriage-legal-in-californ.html
I thought his blaming Republicans was misguided but the rest is a good read.He looks at the leading scholars and see largely the Catholic and Non Pro-Gay marriage folks don’t see this as meaning HUGE conflict. However some of the big people that promote this see huge battles over Religious liberty issues. Making the CHurch to marry Gay people is not high on their agenda though
Quote:
“By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that’s pretty close to the world in which they live now.”
FO course all that seems related to hiring.
That is where we are going. If we are worried about the integrity of the CHurch and protecting it then withdrawing from the legal activities of marriage is hardly sufficent. We shall have to withdraw from much of the life that interacts with secualar society as a whole. Needless to say I am not ready to go back to the Catecombs quite yet
May 16th, 2008 at 1:38 pm
A
1 John McCain would have been given a gift by the CA judges - would revive the whole Gay Marriage issue.
Unfortunately, McCain burned his bridges by opposing the Marriage Amendment. One of MANY political errors by an incompetent candidate.
2 This is not about civil rights. It’s about damaging conventional families. This is just the beginning - in Sweden, it is a crime for ministers to oppose homosexuality on religious grounds. In CA, it’s effectively illegal to do the same.
Future President Obama comes from an “unconventional family”, so he would not hesitate to force people to “normalize” his own and others.
Don’t count legalizing polygamy next - it’s already in litigation.
Can you imagine the divorce proceedings? It’s going to be like the two women presenting a stolen child to King Solomon - cutting the child into pieces.
May 16th, 2008 at 1:42 pm
At this point I think let the world go its own way. Yes, and withdraw from much of secular life.I already have my own mental space where I have done a lot of that.
May 16th, 2008 at 4:58 pm
Of course polygamy is next. There is now no rational basis for maintaining the prohibition on it.
Soon thereafter, of course, incestuous marriages are quite forseeable, if only as an estate planning device. For example, currently, mega-taxes are imposed on transfers of wealth following death (estate taxes and inheritance taxes), including inter-generational transfers. However, federal and state death tax laws also recognize a marital exemption, allowing the estate to pass to a spouse tax-free.
As such, it would be legal malpractice for a lawyer to not advise widowed spouses to marry their children. By marrying their children, they obtain the benefit of a tax-free transfer via the marital exemption upon the death of the parent/spouse. By not marrying their children, such transfer at death gets taxed.
The fact that they never live together or never have sex is, of course, within the couple’s right to privacy, i.e., none of the government’s business.
When we start defining marriage to be whatever the hell we want it to be, such inane and absurd results are sure to happen.
But like I said before — there is no “law” anymore. A “law,” properly understood, is something akin to transcendent truth — unchanging. Human law, e.g. statutes and judicial decisions, have the force of law, but are not technically law per se. Even so, such human law historically has been seen as having to be consistent with reason, e.g. the common law, so as to be fairly applicable to everyone.
Today, instead of law, we have “a mirror of our culture,” which is as about as subjective and relativistic as you can get. Mirrors of culture are not law, and never have been, but that is what we have got. As such, we can alter at will the law of human life; we can alter at will the law of sex/gender; we can alter at will the law of marriage. I suppose if you can mutilate a woman’s genitals, pump her full of hormones, and surgically construct an appendage, which some insist is a facsimile of a penis, you can call a woman a man as a matter of “law,” and when she later gets pregnant because they apparently have not yet removed her uterus, you can print headlines that a “man is pregnant,” but she is still a she and always will be as a matter of fact and truth.
So are we at all surprised that something like “marriage” could be nevertheless treated as nothing more than moldable clay — even though it pre-existed all courts, pre-existed all government, pre-existed all organized society, and thus has a set “definition” (being the union of a man and woman), which, having not been created by government, is beyond the power or competency of government to add to or subtract from or change in any way?
God may not be dead, but man’s belief in the idea of law is gasping its last breaths.
May 17th, 2008 at 12:14 am
This issue really comes down to one simple question: Is the definition of marriage an individual right or a right that belongs to society? In essence, the court is claiming that it is an individual right. However, once you take that stand, you can’t then claim that such things as incest or polygamy should be illegal. If it is an individual right then one could claim just as well the right to marry one’s sister as well as marry someone of the same sex.
Where then is the opposition to legalized polygamy and incest? The immediate claim is that “well, that’s not what we’re talking about and people would never go for that. It’s too extreme.” In other words, the opposing argument assumes the right of society to determine the limits or legal marriage and thus exclude polygamy and incest (and anything else one could think of.)
However, if we assume that the definition of marriage is something for the entire society to define, then we have places where that issue can be decided: that’s in the legislature and in the voting booth.
May 17th, 2008 at 10:50 pm
Gay Marriage Threat to Those Traditionally Married
Gay Marriage Threat to Those Traditionally Married, Multiple Times…
May 18th, 2008 at 1:04 pm
“But that will not change what happens as to hiring in Catholic Hosptials, Universities,Adoption programs , and the numerous Charitable organizations we run. That is where the lawsuits will come and that is where the true threat to our liberty and things such as tax exempt status lies”
FYI, We’re already there. Catholic Charities in MA had to close shop on Adoption services because of conflicts regarding the granting of adoptees to gay couples in that state. It came down to “Your conscience or your job.”
Unfortunately, it will happen to many other churches and individuals as well. I’m waiting for the next case, possibly originating in a state such as TX (which is about half Catholic and about half Baptist) in which a church is threatened a lawsuit because they refuse to marry a gay couple. You are going to see the pendulum swing against Christianity in this country as you have never seen happening before. The main force behind this will be people with such resentments against Christians that they will do anything to cut us out of public life.
Just watch in a few years as Christian families who vote with their wallets and their feet become targets of “Child Protective Services” because Christian schools teach against homosexuality. I am sad to predict that many Christians in this country will eventually be discouraged from, or outright shut down from, many professions because of their faith and practice. Look at pharmacists who can no longer practice because of their faith vs. abortion pills and such. Or check Canada, where showing your Christian colors even on your own business can guarantee you a nice “chat” with their ill-called “Human Rights” Commission. They don’t think much of it, but they’re slowly reviving the lions at the coliseum: after eighteen hundred years or so of “sleep”, those “big kitties” are going to be mightily hungry…
Oh, one more thing. Over ten years ago, the pastor at my church in Northern VA (I now live in TX) warned the congregation that homosexuality was not only “sinful” in the Biblical sense, but it was also the most damaging to our society. He didn’t say it in the sense of “damaging the family”, but from the rest of the preaching, I understood that he meant more: our civilization. I couldn’t understand how it would do so, but as I hear more Islamofascists (and even some “moderate” Muslims) preach against Western culture and civilization, I wonder if (with the Political Correctness that has ruled in the CA Supreme Court and elsewhere) they have indeed made the one rope with which to hang us all.
May 19th, 2008 at 2:42 am
A gGood Take on the California Gay Marriage Ruling
Laura at Pursuing Holiness writes why she’s not as worked up about the California gay marriage ruling as a lot of other conservative Christians. Citing low marriage rates and high rates of divorce, u…