I'm of the mind that the recent decision from Judge Robert Kramer in
California regarding gay marriage in that state is another step in the
march towards the eventual breaking down of the societal prohibition on
same-sex marriage. One of the arguments I've heard against it is that
the guvmint
The right to marry doesn't include the right to a church wedding. Pastors, rabbis and other religious leaders who may perform marriages now have relatively wide latitude to say for whom they will or won't perform the ceremony.
The couple may get married in a civil ceremony at the courthouse, or
I wonder if the reverse argument has more power. That is: if a church declares
that the sacrament of marriage is available to *any* couple willing to accept
it, does the minister of that church have a free exercise right *to perform*
that marriage ceremony?
--
Paul Finkelman
Chapman
On Mar 15, 2005, at 9:56 AM, Paul Finkelman wrote:
I wonder if the reverse argument has more power. That is: if a
church declares that the sacrament of marriage is available to *any*
couple willing to accept it, does the minister of that church have a
free exercise right *to perform* that
Title: Message
I continue to think that conducting a marriage
ceremony, religious or secular, is constitutionally protected free speech (so
long as there is no risk of fraud, which is to say that it's clear to everyone
involved, and to those who are likely to hear of the marriage, that the
The Texas Family Code provides, in relevant part:
2.202. Persons Authorized to Conduct Ceremony
(a) The following persons are authorized to conduct a marriage
ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who
Civil birth registration and baptisms/christenings are separate. So,
too, are death registrations and funerals/memorial services. Why not
separation of marriage and whatever one wants to call state sanctioning
of pairing?
Jim Maule
[EMAIL PROTECTED] 3/15/2005 12:41:07 PM
I've heard (and made)
See the attached paragraph from Brady v. Dean,
173 Vt 542,790 A2d 428, a challenge to Vermonts
civil union statute.
The three town clerks raised a separate claim, asserting that theirobligation under the civil union law to either issue a civil union licenseor to appoint an assistant to do
Eugene:
You suggested that we don't know the meaning of the free speech clause, and the
result is that we should read it very broadly, to protect even speech-related
harm to others. (And would that judgment ultimately be made by...judges?) But
because we think we
know more about the meaning
On Mar 15, 2005, at 1:02 PM, James Maule wrote:
Civil birth registration and baptisms/christenings are separate. So,
too, are death registrations and funerals/memorial services. Why not
separation of marriage and whatever one wants to call state sanctioning
of pairing?
Jim Maule
Three words:
I'm not saying that this is because of the original meaning,
though I think the original meaning as to the Free Exercise Clause
supports my position. I think that a reading of the Free Exercise
Clause that gives me the right to inflict harms on you, for no other
reason than that I think
I again appreciate Alan's remarks, but I'm not sure that they
fully deal with the argument.
(1) I assume Alan would conclude that there's no free exercise
clause right to block even the entrance to a hardware store. (Imagine
that someone believes the store sells some
James makes a good point, and should be taken a step further; have the
governemtn get out of the marriage business. Let religious institutions
perform marriage and have the government regulate civil unions for all
people; civil unions are contracts that cover property, child support
and
Though I am proposing a shift away from marriage as a civil right (and
its replacement with something else), I am not proposing a shift away
from marriage as a religious ceremony. To the contrary, to the extent
states get involved defining marriage it cheapens that sacrament as it
stands within
I was pushing precisely this position on this list about a year ago, and
didn't get many takers. I wrote it as an op ed and couldn't place it.
Maybe the idea's time is beginning to come.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
They could still get married; they would
go to a church or synagogue for that. And for the nonreligious, Corliss
Lamont wrote a secular marriage ceremonoy for the secular humanists; once
marriage is privatized, there is nothing to stop secular groups from offering a
secular version of
Marci said:
I would disagree, because any woman who wants to be a priest is
clearly at odds with heavily document ecclesiology in the Church that
forbids them becoming a priest. Their views, therefore, cut them out
of the picture before you even get to gender.
As a side note, the Episcopal
But Eugene's position is also unattractive, I would suggest, because it
asserts that we should be free to practice our religion as long as it does
not harm others, and the government determines what is a harm to others,
without any constitutional review of that determination by the courts. I
What major social reform effectuated through legal change was NOT a
political non-starter when it first was proposed?
[EMAIL PROTECTED] 3/15/2005 3:12:30 PM
I recently moderated a student-faculty discussion on same-sex marriage
here at St. John's, and when I floated the idea that the tension
Though this isn't a theology list, a clarification is in order; the Catholic
Church does not recognize the validity of Episcopalian ordinations. They were
rejected by the Church as early as 1554, and definitively in 1896.
Episcopalian ministers who convert
to Catholicism must be ordained as
Eugene, you took the route I didn't expect, which is to say that the
suppression of the mass by a no-alcohol law would not be constitutionally
troubling under our most common intuitions about religious freedom. I
strongly suspect that most courts following the Sherbert/Yoder approach
would
My understanding is that marriage was strictly civil until some time in the middle ages. For a long time after the organization of the church, in Europe, couples married themselves with an oral commitment, the verbum. The church took no role. Later the custom arose of having a priest present to
Title: RE: Rights of clergy regarding same-sex
marriage?
In response to the original posting by Jean Dudley, US scholars
may be interested in some recent developments elsewhere.
Here are some edited snippets from a forthcoming book (by myself
and Ian Leigh (Durham University, UK)):
CANADA
I'd say that the problem of deciding as a constitutional matter which harms
to others are real harms was only one problem of the Lochner cases. At
least two other problems were present there that are not present for free
exercise exemption cases:
(1) The asserted constitutional right in the
Actually, there is a considerable difference between, for want of a better
term, the squabbling and accommodation between Catholics and Anglicans and the
permissible gender of priests. The differences are rooted both in Scripture
and in the Magisterium of the Catholic Church. (This
A terrific essay in the New Republic:
http://www.tnr.com/doc.mhtml?i=20050321s=diarist032105
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I agree that it was only one of the problems -- but I think it
was an important one. I've argued that elsewhere extensively, and don't
want to rehash it here. But consider another unhypothetical scenario.
In Washington v. Glucksberg, the Court concluded that bans on
assisted
Title: Message
Well, I'd love to hear what others would
think. Peyote has been the outlier in the drug cases -- as I understand
it, as to marijuana and other drugs the overwhelming judgment of the lower
courts has been that denying an exemption would pass strict scrutiny. (A
few courts in
I know I'm falling behind in this thread, but let me do my best to catch up.
I think these are better examples than your first group, Eugene. I could
probably distinguish some of them -- but let me see if I can jump over the
trees and look at the forest instead.
I think there are at least two
I hope I don't unduly belabor the matter, and those who think I do can hit
the delete button and rest assured I won't prolong it in future messages
(absent some unexpected expression of demand). As Michael Newsom well
explains, the rule of celibacy for Catholic priests is a rule of discipline
Certainly social reform is coming, but it's already taking a certain form. The
movement toward same-sex unions is pretty clearly proceeding down the track of
expanding our conception of government marriage, rather than removing the
government from marriage. Such a dramatic shift in the object
On Mar 15, 2005, at 2:47 PM, James Maule wrote:
Though I am proposing a shift away from marriage as a civil right (and
its replacement with something else), I am not proposing a shift away
from marriage as a religious ceremony. To the contrary, to the extent
states get involved defining marriage
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