A Winning Strategy to Stop Gay Marriage?
WASHINGTON (BP) --- Brian Brown and other conservative leaders have a message for those on both sides of the debate who believe "gay marriage" in all 50 states is inevitable: Remember California.
Yes, they concede, the other side of the aisle has the momentum. But they also argue that once people consider the consequences of tinkering with the definition of marriage, minds change.
"When any group of people is exposed to the real consequences of same-sex marriage, you see movement in our direction, because this is not an argument they're getting from the mainstream media," Brown, executive director of the National Organization for Marriage, told Baptist Press.
In mid-September, a Field Poll showed Proposition 8 -- the constitutional amendment prohibiting "gay marriage" -- trailing 55-38 percent among likely voters. But two weeks later, Prop 8 supporters launched an ad arguing that schoolchildren would be taught about gay marriage, and the message stuck. On Election Night, Prop 8 won.
The National Organization for Marriage is hoping to repeat that strategy nationwide and has launched a $1.5 million ad campaign targeting not only Iowa -- where the state's high court legalized "gay marriage" and where conservatives are pushing for a marriage amendment -- but also in five states where legislatures are considering "gay marriage" bills: New Hampshire, New York, New Jersey, Maine and Rhode Island. New York Gov. David Paterson introduced a bill Thursday in the legislature that would legalize "gay marriage," and it has passed in the state Assembly in the past although its present-day prospects in the state Senate remain questionable.
The ad campaign was launched April 8, the day after Vermont became the fourth state to redefine marriage to include homosexual couples. It is part of a national strategy whereby the organization hopes to sign up 2 million pro-marriage activists on its website (nationformarriage.org) by November 2010 who will help fight the legalization of "gay marriage" not only in their states but also nationwide. Although the National Organization for Marriage was formed in 2007, it didn't receive as much nationwide attention because it concentrated most of its resources in California. But with "gay marriage" advancing at a rapid pace the organization is now spreading its resources nationally and it hopes to help provide a unified, leading voice for opponents on the issue.
The 60-sec ad, dubbed "Gathering Storm," takes place in front of a backdrop of lightning and dark clouds and shows one identified person after another talking about how laws supported by "gay marriage" activists have impacted parental rights and religious freedom. "There's a storm gathering," one woman says at the beginning. Moments later a man says, "Some who advocate for same-sex marriage have taken the issue far beyond same-sex couples." The ad then launches into the heart of the argument:
"I'm a California doctor who must choose between my faith and my job," a woman says.
"I'm part of a New Jersey church group punished by the government because we can't support same-sex marriage," a man says.
"I am a Massachusetts parent helplessly watching public schools teach my son that gay marriage is OK," another woman says.
The ad uses actors -- something acknowledged in an on-screen statement -- but all three stories nevertheless are based on real-life events that have occurred in the past four years since the homosexual movement began gaining momentum.
The ad, which has received 400,000 YouTube views, generated controversy from the get-go and was featured on CBS' "Early Show," MSNBC's "Hardball" and CNN's "Anderson Cooper 360." The Human Rights Campaign -- the nation's largest homosexual activist organization -- even put up a website to try and combat the ad's claims. But they're all true, and HRC President Joe Solmonese seemed to acknowledge during a Hardball debate with National Organization for Marriage President Maggie Gallagher that religious organizations will face changes as laws continue to pass protecting homosexuality.
"When religious organizations step into the public sphere, it should not be surprising to people that they are bound to adhere to the laws in the states that they are operating in," Solmonese said, referencing an example raised by Gallagher: Boston Catholic Charities shutting down its adoption agency in 2006 instead of being forced to place children in same-sex households. The move came two years after Massachusetts began recognizing "gay marriage."
The religious freedom and parental rights argument, Brown said, is a winning one.
"The lie that is put forth by proponents of same-sex marriage is that if you allow same-sex marriage, nothing really is going to change and there won't be any consequences," Brown said. "And some good-meaning folks on our side of the aisle have bought into that. But it's simply not true. The facts are clear that in jurisdictions that have passed same-sex marriage, there are very serious consequences for those of us that believe marriage is the union of a man and a woman."
The issue of parental rights -- particularly as it pertains to what is taught in schools -- figures to be at the forefront of the National Organization for Marriage's strategy, as it was in California last year. During the final weeks of the Prop 8 campaign a Massachusetts couple, Robb and Robin Wirthlin, taped a pro-Prop 8 ad telling how their second-grade son's class had been read a children's book ("King and King") that tells the story of a prince "marrying" another prince. The Wirthlins complained to school officials, who were less than understanding and informed the couple they would not be given advance note in the future about any such books. The Wirthlins then filed a federal lawsuit but lost. The judge ruled that "diversity is a hallmark of our nation" and that such diversity "includes differences in sexual orientation." An appeals court upheld the ruling.
"That resonated with a lot of people in California. That was the No. 1 issue with voters in California -- those that voted yes for Prop 8," Kris Mineau, president of the Massachusetts Family Institute, told Baptist Press.
The Wirthins' story is the one referenced in the National Organization for Marriage ad. The other examples include: a New Jersey Methodist camp association that lost part of its tax-exempt status because it refused to rent its beach pavilion to a lesbian couple and a California Christian infertility doctor who was told by the state Supreme Court she could not turn down treatment for same-sex couples based on moral grounds.
The California ads, Brown said, even changed minds of many young voters, although voters ages 18-29 still opposed Prop 8 by a margin of 61-39 percent, according to exit polling. The notion that "gay marriage" is inevitable in all 50 states generally focuses on polling showing younger people more accepting of it.
"We've got a lot of work to do with the under-25 crowd, but the fact is that people believe all sorts of things when they're under 25 that they change when they get older," Brown said. "The idea that this group is not going to change their opinion on same-sex marriage at all is not realistic."
Brown hopes people will join with the National Organization for Marriage and help slow the wave of momentum "gay marriage" supporters are enjoying. Tens of thousands, he says, have signed up since the ad was released.
In the wake of Iowa and Vermont joining Massachusetts and Connecticut in legalizing "gay marriage," some political observers have argued that every state's marriage laws eventually will change. Charles C. Haynes, a senior scholar at the First Amendment Center, told National Public Radio, "It's all over but the shouting" and that "gay marriage is inevitable in the United States." Syndicated columnist Froma Harrop wrote, "The wind is clearly at the advocates' back. Younger Americans are especially accepting of homosexuality. As they replace their elders, and gay marriage comes to seem routine, the bans will fall one by one."
In response Brown points to the fact that 30 of 30 states that have considered constitutional marriage amendments have passed them, including three just last fall. The latest CBS News poll showed that 33 percent of adults backed "gay marriage."
"What same-sex marriage activists want us to believe is that it's inevitable … because they want us to give up. It clearly is not inevitable," he said. "We live in a country where the people have the chance to define the future, to change the future. If the 55 percent or more of Americans who believe that marriage is the union of a man and a woman stand up for it in their communities and states and on the national level, I think you're going to see marriage protected."
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Michael Foust is an assistant editor of Baptist Press.
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For a long time, in my home town, Baptists ruled. They kept the blue laws on the books (they're gone now). They made sure no movie theaters showed "Midnight Cowboy" or "Last Tango in Paris" (those movies would have no trouble there now). I'm sure every little victory they won over open-mindedness and equality they thought would be forever. Michael Foust, no doubt, is similarly confident. Then again, I'm pretty sure he never expected to see a black President, or a gay best friend on a dozen TV shows, or Ellen DeGeneres be popular again.
They'll be sorry they used "remember California" as a slogan, when Californians reverse Prop 8. The polls have already flipped. And anyway, what makes them think gay marriage proponents don't remember California? That's their slogan too, like "Remember the Maine." It's one reason they're so well-funded in Maine. They remember California very well indeed. It isn't just gay activists who believe equality in America is inevitable. It's all decent people. Those who think injustice in America is inevitable don't understand either our history, our destiny, or our nature as a country. You'll never persuade patriotic gays , even with a thousand Prop 8 victories, that they are destined to be despised eternally by their own government or fellow citizens. It looked very black in America for other minorities for an awfully long time. Has the morning ever failed to come?
The above commentary overlooks a few basic realities.
First, let's examine what happened in California. Proposition 8 was losing -- big time -- until the Mormons (LDS) flooded the state with $19 million at the last moment, pumping misleading and untruthful advertisements onto the air. These advertisements asserted that churches would be forced -- against their will -- to solemnize gay marriages, and that pastors could actually be prosecuted for hate crimes for not recognizing gay marriages. To state that these assertions are blatantly, utterly false is to engage in massive understatement. Gay marriage has been legal in Massachusetts since 2003 (when the Supreme Judicial Court of Massachusetts handed down its ruling in Goodridge v. Dept. of Health, 798 N.E.2d 941 (Mass. 2003)). No churches anywhere in Massachusetts have been forced to officiate at gay marriages. No churches have been forced to recognize the legitimacy of gay marriages. As with divorced persons, the churches remain absolutely free to marry (or not marry) gay couples, in accordance with their tenets and articles of faith . Gay activists have never tried to force churches to conduct gay marriages, and never will. This issue is a red herring. The US Constitution includes the First Amendment, which specifically and unambiguously guarantees that the state may not meddle in ecclesiastical matters, and (conversely) that the church may not meddle in affairs of state.
To those who missed the obvious -- diversity IS the hallmark of our society ! In those states where gay marriage is legal, it is perfectly appropriate for schools to teach that gay persons may avail themselves of this option -- just as it is perfectly appropriate for schools to recognize the reality of interracial marriages, and marriages between previously divorced persons. Any parent who disagrees with the morality of gay marriage remains perfectly free to instruct his or her children in this regard -- but nobody enjoys any right to deny reality, or to pretend that marriages do not exist when, in fact, they do. Any parent who files suit against a school for making books such as “King and King” available to those students who happen to be gay is in deep, deep denial of reality.
Your "winning strategy" overlooks the extremely narrow margin with which Proposition 8 passed in California (52% to 48%). Be assured -- be absolutely assured -- that we will be back in 2010, with a measure to re-amend the state constitution to return it to its status prior to the passage of this monstrous amendment. Should we fail in 2010, we will be back in 2012. Should we fail again, we will be back again, until we succeed in overturning this cruel and discriminatory measure that is now inscribed into the state constitution.
One thing that you should realize about us by now is this – we never, never, never give up. We have succeeded, time and time again, by going on the offensive. This is how minorities make progress against majoritarian sentiment – by never surrendering, by never losing hope, and by never letting up, and never, ever letting down our guard.
"The Gathering Storm" stands as a disgusting object of propaganda, and we are already taking steps to neutralize the blatant falsehoods purveyed by those who produced this cinematographic rant.
The mere mention of gay marriage 10 years ago met with overwhelming disapproval bordering on outright ridicule. Since then, four states have legalized gay marriage in response to state supreme court decisions (including California, where this victory was temporary), and one state legalized gay marriage through legislative enactment, without prompting. None of the four states in which gay marriage is currently legal permit for amendment to their constitutions until 2012. This gives gay persons almost four years to prove to America that the world will not end as a result of these developments.
Look for gay marriage to be legalized in Maine and New Hampshire this year or next year, and for New Mexico to follow suit within a year of these states taking this course of action.
Yes – gay marriage WILL eventually be legal throughout America.
PHILIP CHANDLER
Philip,
You are obviously a very intelligent and passionate person (and from your citation, either a lawyer or law student), but I think your reply misses--and misstates--a couple of key points.
First, members of the Church of Jesus Christ of Latter-Day Saints (not the church itself) donated a considerable amount of money to the campaign. The church itself did not, as you said, pump misleading or untruthful advertisements. The church is always forthright in what it funds, and its ads will always say "A message brought to you by the Church of Jesus Christ of Latter-Day Saints." The ads may have been funded partly by members of the church, but they were not produced by the church itself. I may have donated to President Obama's campaign, but that doesn't mean I therefore had control over the resulting content. Additionally, your statement implies that the success of Prop 8 was bought by this influx of money. Yet from all computations, the campaigns were equally funded. Regardless of what may be said, nobody can truthfully say money bought the result.
Second, you say the advertisements were deceptive. Certainly, this was a problem on both sides of the debate, as evidenced by the advertisement depicting LDS missionaries invading a same-sex couple's home. Yet I believe your argument for their deception is without a solid foundation. Specifically, just saying that churches and/or pastors will not be forced to solemnize same-sex marriages does not necessarily make it so. You further state that no churches in MA have been forced to do so, but again, this does not mean they never will. Indeed, after the MA Supreme Court decision you could have applied the same logic and said the Catholic adoption agencies would never be forced to place children with same-sex couples. Yet, as time has shown, that logic proved to be false. The absence of proof of one thing is not proof of the opposite. Unless there are exemptions for religious beliefs and practices, there are no protections for pastors who refuse to solemnize a same-sex union. There are individuals who are more "militant" (for lack of a better term) in their beliefs than others, and are itching to prove something. We cannot rely on each others' word that "I'll leave you alone if you leave me alone."
To illustrate, you further state that "[g]ay activists have never tried to force churches to conduct gay marriages and never will." Again, this same argument could have been made regarding the Catholic charities. Certainly the couple knew (or should have known) that the Catholic adoption service would have a religious objection, but that did not stop them from trying, and eventually driving the charity out of business. All it takes is one couple to attempt to have a Baptist minister solemnize their marriage, and the fight will begin. Indeed, this issue is not a "red herring," as time has already shown.
Other examples abound. eHarmony would not match same-sex couples. There must be online dating sites which would (if not, I have a lucrative idea), but that did not stop activists from filing suit against eHarmony and forcing them to start matching couples. They could have gone elsewhere, but apparently a point had to be made.
I firmly believe that nationwide recognition of same-sex unions is inevitable, but let's not fool ourselves into thinking that there will not come a resulting clash between gay rights and religious liberty. You may believe that the former should trump the latter, but nevertheless, the conflict exists. Let's just hope the conflict is civil and based upon reason and good judgment, not reckless emotions (this site is a great forum for that ideal). Despite all of the arguments, only time will tell whether recognizing same-sex unions is a good idea or a bad one. Until then, it's just opinions and conjecture against other opinions and conjecture.
I enjoyed you post, Philip. I wish you the best.
Let me expand on this. In Employment Div., Dept. of Human Resources of Oregon v. Smith 494 U.S. 872 (1990), the US Supreme Court upheld the denial of Unemployment Insurance benefits to Native Americans who had been fired from their jobs for ingesting peyote as part of a religious ritual. The Court held that a law of general application (a law that applies evenly to everybody) that is not intended to target a particular religious practise, but that has the INCIDENTAL effect of burdening a particular religious practise, will be upheld from constitutional attack provided it is demonstrated that the law in question is rationally related to the promotion of a legitimate state interest. In short -- nobody can claim religious exemption from a law that applies to all persons. American society does not permit murder -- all states have laws on their books that prohibit murder and provide for the punishment of those who violate these laws. "Christian Reconstructionists" believe that they are required to stone gay persons to death (see the writings of the late Rousas John Rushdoony). However, no Reconstructionist can mount a religious exemption defense to a charge of murdering a gay man by stoning him to death. In short -- people cannot use their religion as a shield to break the law, or to decide which laws to obey and which laws not to obey.
You write "All it takes is one couple to attempt to have a Baptist minister solemnize their marriage, and the fight will begin."
Respectfully -- not so. The Baptist minister could tell the gay couple to go to hell (or that they are already on the way to hell) -- and there would be absolutely nothing that the gay couple could do about this. Should they try to force the issue by filing suit, the suit would be dismissed on First Amendment grounds faster than I can say Chapter 11. PLEASE DON'T TAKE MY WORD FOR THIS -- ask ANY lawyer familiar with First Amendment law.
Yes, I know that eHarmony had to reformulate itself so as to cater to gay clientele -- and I personally regard the decision of the gay man who decided to force this issue as wrong-headed and obtuse. But the State of New Jersey has a law on its books that requires that any firm doing business in that state may not discriminate against persons on the basis of sexual orientation. Let me point out that this law was not forced on people by the courts -- it was enacted by the state legislature, in accordance with the democratic process whereby state statutes are crafted and put onto the books. The people of the State of New Jersey, acting through their elected representatives, were responsible for the passage of the Law Against Discrimination (LAD). eHarmony is NOT a religious organization (such organizations are exempted from the LAD) -- it is a private-sector company that is supposed to cater to all persons living in the State of New Jersey, and which is required to abide by the laws of the state. I personally would not have forced the issue -- but to assert that this case illustrates a threat to religious freedom is to misconstrue the facts surrounding the uproar.
You write that "let's not fool ourselves into thinking that there will not come a resulting clash between gay rights and religious liberty."
I sincerely believe that the threat to religious liberty has been grossly -- and irresponsibly -- overstated. If you were able to name a single case of a Baptist minister being sued (successfully), or of any church being forced to solemnize a gay marriage against its will, then I would be much, much more sympathetic, and would call for a religious exemption to be built into gay marriage laws. But this simply does not happen, BECAUSE IT CANNOT HAPPEN.
You write that "Despite all of the arguments, only time will tell whether recognizing same-sex unions is a good idea or a bad one. Until then, it's just opinions and conjecture against other opinions and conjecture."
Yes, in the end, you are right. But we have had five years of gay marriage in Massachusetts -- and the worst that people such as Maggie Gallagher can point out is that the marriage application form has been changed to read "Spouse 1" and "Spouse 2" instead of "Bride" and "Groom". If this is the worst that will happen -- and five years of experience with gay marriage has revealed nothing worse than this -- then what, in the end, is everybody so excited about?
Thank you for your polite and enjoyable post.
PHILIP CHANDLER
Let me first commend you on your impressive knowledge of constitutional law, especially without formal training. You made be want to go back and review my Con Law outlines (well, almost).
Additionally, I apologize for misreading your comment regarding the funds being from the LDS church vs. from individual members. I see you were correct in your initial post.
To my knowledge, there have been no cases where a church has been forced to perform a same-sex union or face punishment under anti- discrimination laws--but then again, I have never looked. However, I was not making the point that it will happen, only that it could.
My reason for believing this is well-illustrated by your own words regarding Catholic charities: "The hard truth is that when any religious entity provides a public service, that religious entity has to abide by the law of the land."
By performing a marriage ceremony, a minister is performing a public service. I was married by a member of my faith , and I did not have to then go to a justice of the peace to be married again in order for the state to recognize my marriage as valid. Therefore, a minister can step into the shoes of a justice of the peace and perform a public service. If this is true, and he or she discriminates and refuses to perform the ceremony for same-sex couples in a state that recognizes it as a right, how then can the outcome be any different than the Catholic charities case? Indeed, the function performed by a minister is more of a "public service" than that which is performed by an adoption agency. The agency simply places the child, while the adoption (which creates the legal rights) is performed by a judge. In the case of ministers performing weddings, it is not the same two-step process: the minister's performance is what creates the legal rights. The potential for enforcing anti-discrimination laws against ministers is therefore even more real.
Therefore, I believe the government may require that a minister perform unions without discriminating or not perform them at all (as a public service). The outcome I see would be that ministers are no longer allowed to perform it as a public service, but only as a religious rite. The result would be two services being held: one to be recognized by the church (performed by the minister), and one to be recognized by the state (performed by a justice of the peace). As you said, the First Amendment does protect religious belief, but it does not fully protect religious practices, and (I believe) that will be especially true if that practice is also a public service. Some may think this is a good way to "split the baby ," but others are strongly opposed to the idea.
On another note, I brought up eHarmony not to support my statements regarding religious objections, but rather to illustrate that some people want to prove a point.
In the end, I do not believe that we have to wait for a case showing that a church has been forced to solemnize a same-sex union in order to prove there is potential for such a case. My simple point is that the clash between gay rights and religious freedom is real, and not something to be dismissed as a "red herring." A few years ago, the Beckett Fund held a Scholars' Conference on Same-Sex Marriage and Religious Liberty to discuss these very issues. If you're interested, here's the link: http://www.becketfund.org/index.php /article/494.html
Thank you for your excellent reply. It's refreshing to have a good discussion on this topic.
For some reason, this reply was approved by the moderator but did not appear on the message thread. I therefore repost this second half of my reply....
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But more importantly -- there is no way that I can force a church to perform or recognize my marriage if that church does not wish to do so. A divorced person cannot -- under any circumstances short of obtaining an annulment of the marriage that has ended -- get married again in a Catholic church. I know this, because I know several Catholics who have encountered this dilemma. They can (and do) remarry before a clerk at Town Hall, but the church does not recognize their marriage, and will not officiate at such a marriage ceremony. THE RIGHT OF A CHURCH TO MAINTAIN ITS OWN DEFINITION OF MARRIAGE HAS **NEVER** BEEN QUESTIONED by gay activists, and were an activist to show up at a church that does not recognize gay marriage and demand to be married to his boyfriend, the church would have the same right to tell him to leave the premises as would be the case were a previously divorced person to appear at (for example) a Catholic church and demand that the church perform a marriage in violation of its tenets. There are laws against discrimination on the basis of marital status -- but the Catholic Church cannot be forced to marry previously divorced persons, by virtue of the fact that a marriage conducted by a church incorporates both the civil and religious dimensions of this union. A church is entitled to defend its own definition of marriage, and the state is prohibited by the Free Exercise Clause from badgering the church into recognizing the spiritual dimension of a marriage with which the church does not agree.
Let me put it this way -- has there ever been a case in which a divorced person has successfully sued the Catholic Church for not marrying that person? Of course not -- the church is absolutely entitled to adhere to its own criteria when deciding whether or not to perform a marriage, because in the eyes of the church, marriage is both a civil AND a religious ceremony. This is a classic example of the free exercise of religion .
There is a huge difference between marriage and the workings of an adoption agency. Marriage is a religious ceremony (as well as a civil contract). Placing children for adoption is not, by any stretch of imagination, a religious ceremony, or a form of religious expression. It is placement of children with qualified adoptive parents . Placing children with adoptive parents is not a form of religious expression. The Catholic agency may only wish to place children with opposite-sex married persons, but this qualification (or limitation) does not render the placement of children "religious" in nature.
Of course there is some degree of tension between gay rights issues and religious issues. But this tension does not mean that the two sides have to tear each other's throats out. Those gay persons who are religious can go to their own church (e.g. the MCC church) to get married. The MCC church recognizes gay relationships and will gladly officiate at gay marriages. This is again an example of free exercise.
I guess that I am trying to point out that the supposed clash between gay rights and religious freedom does not have to be settled exclusively in favor of one side or the other. Reasonable people live and learn, and make the necessary accommodations. Gay marriage has been legal in Massachusetts since 2003 (six years!) and the specter to which you allude has not raised its head. Why anticipate a problem that does not exist, and has never existed? If you are serious about this concern, then you should also worry about the possibility of a divorced person one day filing suit against a church that refuses to marry that person.
But that will never, ever happen.
I hope this clarifies my response. Thank you for a continuing, lively, and civil discussion – this is a far cry from the angry abuse I have encountered on many, many religious threads (I made my mind up after the September 11, 2001 disasters, following which Pat Robertson took to the podium and blamed the disasters on the gay community, never to enter a house of organized worship again as long as I live).
PHILIP CHANDLER
For some reason, the first time I posted this reply, I received a message indicating that the moderator approved this message, but it did not post. I therefore resubmit it....
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Thank you for your kind remarks relative to my knowledge of constitutional law. I would like to respond to something that you wrote:
You wrote that "By performing a marriage ceremony, a minister is performing a public service. I was married by a member of my faith , and I did not have to then go to a justice of the peace to be married again in order for the state to recognize my marriage as valid. Therefore, a minister can step into the shoes of a justice of the peace and perform a public service. If this is true, and he or she discriminates and refuses to perform the ceremony for same-sex couples in a state that recognizes it as a right, how then can the outcome be any different than the Catholic charities case?"
The outcome will be very different, because of the nature of marriage itself.
Marriage has two dimensions, only one of which is legally necessary for a marriage to be recognized as valid in the eyes of the state. Marriage is either a purely civil contract, or both a civil and religious contract, depending on the faith (or lack thereof) of those who enter into this union. To those persons who are either agnostic or atheist, or who harbor spiritual beliefs but are vehemently opposed to organized religion (I fall into this category), marriage is a purely civil contract between two unrelated adults who meet the necessary criteria to enter into this union. People such as me get married before a clerk in Town Hall (in fact, I am not married, but were I to marry, this is how I would do so), who is empowered by the state to perform marriages. A religious person, on the other hand, would probably choose to marry in church , and the minister of religion is empowered to conduct the ceremony and to perform the marriage. In these cases, marriage is both a civil and a religious contract. The fact that my marriage, before a clerk in Town Hall, does not share a religious dimension in no way renders it less of a marriage in the eyes of the state (although a church may indeed consider me not to be married according to its tenets -- for example, the Catholic Church would not consider my marriage to be legitimate or valid were I to remarry following a divorce).
My marriage is every bit as valid in the eyes of the state as a marriage performed by a priest or minister of religion. But a marriage performed by a priest or minister of religion incorporates both the civil and the religious dimensions to which I refer. To a religious person, the spiritual meaning of marriage is as important as the civil meaning of marriage.
Now -- why would I, as a person who is not religious, go to a church and demand that a minister of religion marry me?
CONTINUED...
But more importantly -- there is no way that I can force a church to perform or recognize my marriage if that church does not wish to do so. A divorced person cannot -- under any circumstances short of obtaining an annulment of the marriage that has ended -- get married again in a Catholic church. I know this, because I know several Catholics who have encountered this dilemma. They can (and do) remarry before a clerk at Town Hall, but the church does not recognize their marriage, and will not officiate at such a marriage ceremony. THE RIGHT OF A CHURCH TO MAINTAIN ITS OWN DEFINITION OF MARRIAGE HAS **NEVER** BEEN QUESTIONED by gay activists, and were an activist to show up at a church that does not recognize gay marriage and demand to be married to his boyfriend, the church would have the same right to tell him to leave the premises as would be the case were a previously divorced person to appear at (for example) a Catholic church and demand that the church perform a marriage in violation of its tenets. There are laws against discrimination on the basis of marital status -- but the Catholic Church cannot be forced to marry previously divorced persons, by virtue of the fact that a marriage conducted by a church incorporates both the civil and religious dimensions of this union. A church is entitled to defend its own definition of marriage, and the state is prohibited by the Free Exercise Clause from badgering the church into recognizing the spiritual dimension of a marriage with which the church does not agree.
Let me put it this way -- has there ever been a case in which a divorced person has successfully sued the Catholic Church for not marrying that person? Of course not -- the church is absolutely entitled to adhere to its own criteria when deciding whether or not to perform a marriage, because in the eyes of the church, marriage is both a civil AND a religious ceremony. This is a classic example of the free exercise of religion .
There is a huge difference between marriage and the workings of an adoption agency. Marriage is a religious ceremony (as well as a civil contract). Placing children for adoption is not, by any stretch of imagination, a religious ceremony, or a form of religious expression. It is placement of children with qualified adoptive parents . Placing children with adoptive parents is not a form of religious expression. The Catholic agency may only wish to place children with opposite-sex married persons, but this qualification (or limitation) does not render the placement of children "religious" in nature.
Of course there is some degree of tension between gay rights issues and religious issues. But this tension does not mean that the two sides have to tear each other's throats out. Those gay persons who are religious can go to their own church (e.g. the MCC church) to get married. The MCC church recognizes gay relationships and will gladly officiate at gay marriages. This is again an example of free exercise.
I guess that I am trying to point out that the supposed clash between gay rights and religious freedom does not have to be settled exclusively in favor of one side or the other. Reasonable people live and learn, and make the necessary accommodations. Gay marriage has been legal in Massachusetts since 2003 (six years!) and the specter to which you allude has not raised its head. Why anticipate a problem that does not exist, and has never existed? If you are serious about this concern, then you should also worry about the possibility of a divorced person one day filing suit against a church that refuses to marry that person.
But that will never, ever happen.
I hope this clarifies my response. Thank you for a continuing, lively, and civil discussion – this is a far cry from the angry abuse I have encountered on many, many religious threads (I made my mind up after the September 11, 2001 disasters, following which Pat Robertson took to the podium and blamed the disasters on the gay community, never to enter a house of organized worship again as long as I live).
PHILIP CHANDLER
Thank you for your kind remarks relative to my knowledge of constitutional law. I would like to respond to something that you wrote:
You wrote that "By performing a marriage ceremony, a minister is performing a public service. I was married by a member of my faith , and I did not have to then go to a justice of the peace to be married again in order for the state to recognize my marriage as valid. Therefore, a minister can step into the shoes of a justice of the peace and perform a public service. If this is true, and he or she discriminates and refuses to perform the ceremony for same-sex couples in a state that recognizes it as a right, how then can the outcome be any different than the Catholic charities case?"
The outcome will be very different, because of the nature of marriage itself.
Marriage has two dimensions, only one of which is legally necessary for a marriage to be recognized as valid in the eyes of the state. Marriage is either a purely civil contract, or both a civil and religious contract, depending on the faith (or lack thereof) of those who enter into this union. To those persons who are either agnostic or atheist, or who harbor spiritual beliefs but are vehemently opposed to organized religion (I fall into this category), marriage is a purely civil contract between two unrelated adults who meet the necessary criteria to enter into this union. People such as me get married before a clerk in Town Hall (in fact, I am not married, but were I to marry, this is how I would do so), who is empowered by the state to perform marriages. A religious person, on the other hand, would probably choose to marry in church , and the minister of religion is empowered to conduct the ceremony and to perform the marriage. In these cases, marriage is both a civil and a religious contract. The fact that my marriage, before a clerk in Town Hall, does not share a religious dimension in no way renders it less of a marriage in the eyes of the state (although a church may indeed consider me not to be married according to its tenets -- for example, the Catholic Church would not consider my marriage to be legitimate or valid were I to remarry following a divorce).
My marriage is every bit as valid in the eyes of the state as a marriage performed by a priest or minister of religion. But a marriage performed by a priest or minister of religion incorporates both the civil and the religious dimensions to which I refer. To a religious person, the spiritual meaning of marriage is as important as the civil meaning of marriage.
Now -- why would I, as a person who is not religious, go to a church and demand that a minister of religion marry me?
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Again, I refer you to the First and Fourteenth Amendments to the US Constitution. Although the First Amendment, by its terms, applies only to the behavior of Congress ("Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof..."), the Due Process Clause of the Fourteenth Amendment incorporates almost all of the guarantees subsumed by the Bill of Rights against the states. Incorporation is black-letter constitutional law, and is firmly here to stay. So the scenario that you raise simply CANNOT exist, provided the First and Fourteenth Amendments remain in force.
You raise the issue of Catholic adoption agencies. Yes -- some of these agencies have closed their doors rather than accept gay persons as adoptive parents . This has happened in those states that have anti- discrimination statutes that prohibit sexual orientation discrimination in employment, housing, and access to places of public accommodation. The hard truth is that when any religious entity provides a public service, that religious entity has to abide by the law of the land. Nobody forces a Catholic adoption agency to remain open and to place children with adoptive gay parents. If such an agency truly feels that such placements violate church teachings, then that agency must choose between complying with state law on the one hand, and closing its doors on the other hand. This may sound harsh -- but there is no fundamental right to place children for adoption. As society has grown, so has it become illegal for adoption agencies to prohibit mixed-race couples from adopting children. As society becomes more inclusive and more accepting of diversity , so such agencies must make their own decisions -- to remain open and to place children with qualified parents in compliance with anti-discrimination statutes, or to close their doors. If placing children for adoption were a fundamental right, then I would be sympathetic to these agencies; but as society has grown, so has it become clear that gay parents can be just as good and just as effective as heterosexual parents when adopting children. There is no fundamental right, enshrined in religious teaching , to place children for adoption.
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