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Friday, May 16, 2008

So California seems to be on its way to honoring same sex marriage. I'd just like to put to rest the dissent of a very small minority of atheists concerned with the rights of churches to refuse to conduct ceremonies. As far as I know, this group only consists of one person, but there may be others. The, only slightly, larger group of not-necessarily-atheists who share the constitutional concern for church rights is somewhat difficult to find. You can read some succinct cautionary voices in this PBS article. (I'll also pull some fairly strong and confident quotes from the same article supporting my opinions below).

Firstly a grab from VTfreetomarry.org, a Vermont same-sex marriage advocacy page:

(clearly not unbiased, but also not making any untrue or extreme points)

The right to freedom of religion, protected by the First Amendment to the U.S. Constitution, ensures that no clergy person can be forced to perform a marriage, or sign a marriage certificate, against his or her faith, and no faith community can be forced to celebrate a marriage in violation of its religion. As a consequence, many people are legally entitled to marry, but cannot insist that they be married in a particular church, or by a particular clergy person. For example, even though an individual who has divorced, or is marrying outside of his or her faith, has a legal right to marry, some communities of faith will not celebrate such marriages. That's their right.

The religious rite of marriage DOES NOT confer any legal rights or responsibilities. The religious rite of marriage is a ceremonial rite of passage within a faith tradition, and only couples who meet the requirements of a particular faith tradition can participate in religious marriage.

A civil marriage is separate from a religious marriage. It is a contract with the state that confers over 1,400 civil rights to couples and their families. A couple who wants to civilly marry can do so without having a religious ceremony

And after looking into a bit of US Supreme Court decisions related to churches and ceremonies, there has been no case that specifically tests whether churches have the right to refuse service to anyone based on anything. This in light of the fact that churches have been refusing to offer various services to various groups for hundreds of years. I just don't think there's anything to this argument. There is no precedence to back it up that I can find.

What could I find? The Supreme Court holds that states can make laws that preclude same-sex marriage, and that these laws do not violate rights found in the US Constitution. That's currently the law of the land. Baker v. Nelson

So not only are Churches free to not marry people, it's been ruled that laws can be made at the state level to the effect that marriage is defined as between one man and one woman. And that these laws do not violate the US Constitution. I doubt it would be difficult to extend the same precedent to churches.

As a technical aside, the distinction between a church marriage and a legal marriage has also been established in precedent:
Travers v. Reinhardt, 205 U.S. 423 (1907) Held that:
Marriage in fact, as distinguished from a ceremonial marriage, may be proved by habit and repute, and, except in cases of adultery and bigamy, when actual proof is required, may be inferred from continued cohabitation. (i.e. "marriage" in a legal sense is not specifically reliant upon "ceremonial marriage". So it's at least relevant to observe the difference )

Finally, I found that it's not a constitutionally given right to expect other bodies (state/private) to honor your personally held spiritual convictions. You need the backing of a proper church.
Frazee v. Ill. Dept. of Empl. Secur., 489 U.S. 829 (1989)Holds that a person is not entitled to compel a private business/the state to comply to his/her behaviors based upon spiritual convictions. A recognized church body must be shown to mandate the behaviors. Again, this does not apply specifically to the organization of "church", but could probably be extended if needed.

This implies that a gay couple with spiritually derived behaviors could not expect the right to compel another body to comply to that behavior solely based on their belief.

And backing all of this up are the opinions of various people interviewed by PBS's Newshour.
From PBS

Thomas Kohler, professor at Boston College Law School
"The external law will not, and under present First Amendment doctrine could not, force a religious group to conduct same-sex marriages if doing so would be contrary to their teachings. However, the law would require those religious groups to recognize such marriages, to grant spousal benefits to same-sex couples in employment situations, etc."

And another quote from a non-slouch via PBS:
Andrew Koppelman, professor of law and political science at Northwestern University
"The U.S. Constitution's guarantee of religious freedom means that government may not tell any religious group what to believe or what rituals to perform, and that includes decisions about what marriages ought to be celebrated. No state has ever attempted to compel the Catholic church to marry divorced persons whose former spouses are still living, or Orthodox Jewish rabbis to celebrate marriages between Jews and Gentiles. If any state ever tried, the First Amendment would protect these religious groups. So recognizing same-sex marriage would not require any religious group to celebrate such marriages."

Of course there is another side, but it's not a constitutional issue. One reason it's not a US constitutional issue is that states have the right to make laws governing marriage. Another reason is that the US Constitution pretty well protects the church over the individual. So it comes down to a state legislative issue.

A common problem encountered is when "hate laws" are put in place at a state level. The hate laws can then be used to compel organizations to treat people equally, or face penalty. I doubt laws poorly conceived enough to allow for a violation of church/state separation would survive even State Supreme Court attention.

The moral of the story here is that the US has a legal system based on precedent that exists in a broader background of checks and balances (that much vaunted "rule of law"). There's nothing to be alarmed about with reference to how same-sex marriage is being addressed in the US. It's all going per the standards of due process.

Just because a decision may not be going your way, it doesn't mean there's a conspiracy or the wheels of the cart of justice are coming off. It just means you don't like the direction things are headed. The problem here isn't a lack of the legal system's ability to handle this specific issue.

If there is a problem with the legal system it's surely systemic and not specific to this one issue. That would require systemic reform, not a different decision on this issue. (i.e. you can't call into question the process of deciding this question without calling into question "the process of deciding". That's specifically forbidden in our legal system. And we're all better off for it).

So if you're determined to oppose same-sex marriage, I suggest you develop another argument. Attempting to wrap the US Constitution around whatever issues you have is a disservice to the US Constitution and a slap in the face to the "American way". There may be compelling arguments to be made on this subject. This isn't one of them. Move along.

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