CHURCH-STATE CONFLICTS OVER SAME-SEX MARRIAGE INEVITABLE

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SAME-SEX MARRIAGE AND THE CHURCH

Conflict Looming on the Horizon

by Father John Flynn, LC

ROME, OCT. 19, 2008 (Zenit.org).- Marriage seems set to continue at the center of debate in the United States. Connecticut’s Supreme Court has ruled that same-sex couples have the right to marry, reported the Associated Press, Oct. 10.

The decision makes the state the third, after Massachusetts and California, to legalize same-sex unions. In California voters will have a chance Nov. 4 to vote in a referendum to amend the state constitution to limit marriage to unions between men and women, thus overturning the recent Supreme Court decision.

In Connecticut a statement by the Catholic bishops expressed dismay at the decision that imposes same-sex marriage by judicial fiat. “It appears our State Supreme Court has forgotten that courts should interpret laws and legislatures should make laws,” commented the state’s bishops in their Oct. 10 declaration.

They also raised the concern that the decision would lead to the infringement of religious liberty. Precisely this concern is the subject of a book just published on the topic of same-sex marriage.

Douglas Laycock, Anthony R. Picarello Jr., and Robin Fretwell Wilson edited a collection of texts given by legal scholars at a forum sponsored by the Becket Fund for Religious Liberty. In the book, “Same-Sex Marriage and Religious Liberty: Emerging Conflicts,” (Rowman and Littlefield) the contributors what kind of conflicts may occur with the establishment of the right to same-sex marriage.

In his contribution Marc D. Stern, assistant executive director of the American Jewish Congress, points out that religious institutions have the duty to “spread the faith” both to their own believers and then to others. “Will speech against same-sex marriage continue unfettered?” he asked.

Stern noted that already in Canada complaints filed with provincial and federal human rights commissions have led to rulings against ministers and others who had publically criticized homosexuality.

While free speech rights are stronger in the United States than in Europe or other countries Stern did, however, express concern that sexual harassment laws could easily be extended to expressions that oppose same-sex marriage.

Catholic institutions

Stern also raised the issue of what will happen with employees of Church agencies and institutions. Recent court rulings have obliged Catholic institutions to provide healthcare coverage for contraceptives, so problems for churches could well arise when it comes to employees who enter into same-sex marriages.

Marriage counseling agencies, psychological clinics and other similar services offered by some churches may well run into difficulties in obtaining government licensing if they take a stance against same-sex marriage, Stern warned. Moreover, many church agencies receive government funding, which could well place them in difficulties if they oppose same-sex marriage.
Stern concluded his paper by saying that opponents of same-sex marriage will certainly be affected if it is legalized and that based on current law there is strong doubt that dissenters will be able to escape the legal consequences.

Jonathan Turley, a professor at George Washington University, argued that the Supreme Court’s jurisprudence in the area of religiously-based discriminatory practices “is now hopelessly confused and contradictory.”

The Court has allowed, for example, the government to punish groups for their religious practices through the denial of tax exemption. On the other hand, however, it has recognized rights of speech and association for some groups.

“Same-sex marriage brings us once again to this inherent conflict between the exercise of First Amendment rights and the government’s enforcement of a nondiscrimination policy penalizing discriminatory views,” observed Turley.

Contradiction

Turley commented on the contradiction between telling an organization that they can oppose homosexuality in their teachings, but must be willing to hire homosexuals in their agencies.

Apart from the denial of tax exemption courts can impose an array of penalties on organizations they hold to be discriminatory. In California the state supreme court upheld the denial of a marine berth in Berkeley for the Boy Scouts because of that organization’s opposition to homosexuality.

Charles J. Reid, Jr., professor of law at the University of St Thomas, reflected on the relationship between religion, law and the State. The law teaches values through the behaviors it sanctions and those it prohibits, he maintained.

Christianity played a key role in determining marriage law, not only in Europe since the Middle Ages, but also in the United States, Reid explained. From the twelfth century until just a few decades ago, in fact, it was acceptable in legal circles to refer to marriage as something brought into being through divine guidance.

During many centuries marriage was seen as playing a primary role in ordering society and was considered as supremely important to social well-being. Moreover, marriage was conceived of as not being a creation of the state, but as an institution that predated the state.

Marriage has now been desacralized, noted Reid, but in doing so we have ended up with widespread divorce and a higher incidence of out-of-wedlock births.

Lessons

Another consequence is the legal reasoning present in the decision by the Massachusetts supreme court when it legalized same-sex marriage. Regarding the relationship of marriage to the state the court wrote: “Simply put, the government creates civil marriage.”

How society structures the laws governing marriage, commitment and child rearing teaches values about these vital aspects of our lives. The current debate over marriage is in part a struggle over the proper lessons to be taught by the law, Reid concluded.

In his conclusion to the volume, Douglas Laycock, professor of law at the University of Michigan, observed that the contributors to the volume had a diversity of views on same-sex marriage and religion, but that all of them contributors of the volume agreed that same-sex marriage is a threat to religious liberty.

Supporters of same-sex marriage demand not just legal recognition and not just tolerance from the private sector, but also recognition and affirmative support from both public and private sectors. Some even seek to suppress all public expression of disapproval, Laycock added.

Past experience of conflicts on cultural issues in the United States is that once important innovations have been secured, then often this leads to new demands aimed against the remaining pockets of resistance, he also noted.

One solution, proposed Laycock, may be to leave marriage to the churches, while government confines itself to civil unions. Even this solution, he acknowledged, would not, however, resolve all the problems.

Action plan

Meanwhile, the Catholic Church in the United States is not about to back down in its views about marriage. On Oct. 15 a press release by the U.S. episcopal conference announced a joint effort with the Knights of Columbus, “to develop a national plan of action in defense of marriage.”

Part of the initiative is the creation of an committee appointed by Cardinal Francis George, president of the conference. Archbishop Joseph Kurtz of Louisville, Kentucky, will chair the committee.

“We must increase our efforts to make known the unique beauty of the vocation to marriage," explained Archbishop Kurtz when the committee was announced.

One of the first actions by the bishops will be the promotion of the 2003 statement by the U.S. bishops, affirming that marriage is a unique relationship between a man and a woman and, as such, is an essential core element of healthy societies. Whether that view of marriage prevails remains to be seen.