Whether or not pastors are deputized to perform legal marriages, suppose the state says we will recognize relationships that satisfy the legal definition of marriage. That definition is limited to one-man, one-woman. And then Unitarians say, under a state RFRA or state free exercise clause, that definition excludes same-sex Unitarian marriages. And you have to have a compelling interest for not recognizing our marriages.
I think that claim usually fails, because the same-sex marriage is not motivated by religious belief. It is motivated by same-sex desire, and then blessed by a sympathetic religious organization. The after-the-fact religious blessing cannot convert it into a RFRA claim.
At 12:01 PM 3/16/2004 -0800, you wrote:
I'm still thinking about this,Doug. Let me ask -- do you think there would be a constitutional violation under a constitutional regime that protected the free exercise of religion against neutral laws of general applicability? The clergy in question would be asking for an exemption from the law that prohibits the legal solemnizing of same sex marriages. Suppose a religious high school wants the degree it confers on graduates to be recognized as a high school diploma for legal purposes. The state refuses to recognize it because the state disagrees with some aspect of the religious school's curriculum. Under an rigorously enforced free exercise principle (similar to the one adopted in RFRA), does the state bear some burden of justification to explain why the education provided at the religious school does not deserve the same recognition that the education provided at other public and private religious schools receive. Is it enough for the state to simply state, we have this criteria and the religious school did not satisfy it. Or must the state defend its criteria under some rigorous level of review?
Or to put the question another way, given the clear religious foundation underlying the state's commitment to marriage being limited to a man and woman, don't faith communities that recognize same-sex marriages deserve more of a showing than a rational basis from the state to explain why the marriage ceremonies performed by their clergy do not receive legal recognition while the ceremonies performed by the clergy of other faiths receive such recognition.
Alan Brownstein UC Davis
At 12:48 PM 3/16/2004 -0600, you wrote:The New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent.
Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution.
I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state.
On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships.
When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship.
At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote:Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it.
What always strikes me as curious in these are the cries of "upholding the law" - as if the constitutions were not law, and indeed superior law at that.
Anyway does anyone see an establishment problem with these prosecutions that I am missing?
washington post article is at
<http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html>http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html
Steve
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