Sunday, October 08, 2006

Another reason my church rocks

Outside-the-box thinking. I really like this idea -- I've never really seen why state marriages and church marriages should be, well, "married" to each other. I think it's appropriate for the church to define marriage however it sees fit. If this doesn't line up with the state's arbitrary requirements for contractual rights and obligations, well, that's for the lawyers to worry about, not the clergy. Personally, I'm a fan of this proposed new approach.



At October 9, 2006 at 5:35 AM, Blogger Michele said...

I am intrigued by this idea - absolutely worth thinking about/doing. (Since you are often more in touch with the news than I am...please keep your readers posted!)

At October 9, 2006 at 3:51 PM, Blogger Andy said...

This has been a disappointing year for marriage equality, with surprising losses in the top courts of New York and Washington, a recent loss at the appellate level in California, and marriage-related cases in Georgia (state supreme court upheld a voter-approved ban, even though the language violated the state constitution's "single subject rule," because "the voters knew what they were doing"), Tennessee (attempts to block a marriage-ban from going on the ballot failed) and the Eighth Circuit (turning Romer on its head, the court ruled that Nebraska has the right to disenfranchise LGBT folks from the political process with a constitutional amendment that bars lobbying for or recognition of any protection for same-sex couples). Hopefully New Jersey will buck the trend this month.

I think churches in Massachussets should go ahead and have full marriage ceremonies for all couples. As an Episcopalian, someday I would really like to have a genuine wedding in a church. I don't want some second-tier "blessing," even if straight couples are getting the same treatment. A church wedding is important for a host of reasons.

Courts and lawmakers should either stop looking at religious concerns about same-sex marriage altogether, or they should look A LOT closer. Contrary to some people's claim that same-sex marriage violates their First Amendment rights of freedom of religion (by "shoving gay marriage down their throats," as they like to say), banning it is the REAL First Amendment violation, because there are already established faith groups (Quakers, Metropolitan Community Church, Unitarian Church, Reform Judaism, and some Episcopal dioceses) which perform same-sex weddings.

Most importantly, however, there is no state in the country that requires a marriage be solemnized by a religious offical to be valid; likewise, there is no state where a religiously solemnized marriage is recognized without a civil license. Catholics can legally remarry after divorce, even if the church does not recognize the marriage. Jewish people can marry outside their faith, even if the community rejects them. In these cases, religious objections aren't remotely binding on the federal government. Why are they in the sole case of gay marriage?

/end rant

At October 9, 2006 at 6:07 PM, Blogger The Law Fairy said...

michele, I'll try to keep up with it and post again when I have more info :)

andy, I agree, it's been an extremely disappointing year. I read the California opinion and what struck me was how much it *appeared* the judge wanted to rule differently. I don't know whether this was genuine or an attempt to make himself look like less of a "bad guy." Either way, in my mind stretching the definition of "rationally related" to cover the definition of marriage most states currently have, is a pretty big intellectual leap, considering precedents like Griswold and Lawrence.

I'm interested to see where the Episcopal church goes with this. I'm not a fan of the notion of a "blessing" ceremony either -- what I would ideally like is for churches to simply officiate over marriages for spiritual, church-sanctioned recognition. In my mind if the state also wants to sanction the marriages that's a separate issue -- in other words, if the state is going to drag its feet it would be nice to see the church say, fine then. We'll marry who we like and you can take care of your state-sanctioned marriage contracts on your own from now on. I don't know if that's how this would work out or not.

Of course, I'm also the sort of dreamer who would like to see single people not be reduced to the margins of society, economically and socially.

I really like your note about how limiting marriage to opposite-sex couples infringing on First Amendment rights. That's a cool observation -- just because something is "religious" does not automatically put it squarely in the domain of Jerry Falwell et al.

At October 9, 2006 at 7:25 PM, Blogger Andy said...

what struck me was how much it *appeared* the judge wanted to rule differently

I have the California ruling sitting here next to me, but I haven't actually read it yet. I can say, I noticed exactly that tone in both New York and Washington. Both courts made a point of saying, "We're not deciding whether gay marriage is right or wrong." Then, ignoring that it is in fact the proper role of the courts to intervene when the constitutionality of a law is questioned, they deferred to the legislature. Both courts agreed that marriage is a fundamental right, but declined to grant "suspect class" status to gay people, which would trigger a strict scrutiny review. They then found that because it is the proper role of government to steer heterosexual people into marriage for the purpose of procreation, there was therefore a rational basis to deny marriage to same-sex couples. I haven't quite followed that logic, myself. Let us up the top courts in California and New Jersey pay attention to the worthy dissents in all of these cases I listed above.

Despite the shenanigans, there's still hope. The California legislature passed same-sex marriage, if you recall, only to be vetoed by the Governator because he said the question should be decided by the courts, bucking the rhetoric of damn near everyone else in the GOP with their repeated cries of "Activist judges!" The near-certain next Governor of New York, Eliot Spitzer, has promised to pass marriage equality legislation. Still, it's going to take a while for this to be settled. Then we'll wonder what all the fuss was about.

At October 9, 2006 at 7:58 PM, Blogger Gino said...

i never looked at the situation of church being agent to the state, but vice versa

neither are obligated to recognize the other, but the state opts to recognize the church (with restrictions)

thats the way i see it, anyway.

At October 11, 2006 at 1:27 PM, Blogger The Law Fairy said...

andy, you make a great point. That's exactly what it boils down to, different ideas about the place of the judiciary. Judges nowadays are afraid to do what's in many cases right because they might be called "activist." Oh horrors. Yes, let's instead be inactive, do-nothing judges who let the majority trample on the rights of minorities. Hell, let's reinstate Plessy while we're at it!

What's interesting is that a lot of conservatives want to overturn certain prior rulings that have been in effect for decades now. Oh, screw it, I won't pussy-foot around it. Conservatives want to overturn Roe. But here's the problem: Roe has been good law for over thirty years now. To overturn it would be activism. Overturning established Supreme Court precedent is precisely the sort of thing "activist" judges do, and are often hailed for (think the Warren court). It seems inconsistent to me for conservatives to lambast "activism" when it goes against it, and practically *demand* it when it's up to their nominees.

gino, interesting -- but the state only "recognizes" the church (I take it you mean by conferring tax-exempt status?) if the church also recognizes the state, by obeying its rules about not being too political, etc. I don't see any particular reason the church should be co-opted into agency for the state, however, unless the state's willing to do the same for the church. Thus, church recognition of state marriages, in my mind, ought to be one hundred percent the church's prerogative.


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