Rights of clergy regarding same-sex marriage? -- a free exercise right?
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 Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Ed Darrell wrote: 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 with another official presiding at some other location. Traditionally, in the U.S. the problem has not been finding people to perform marriages, but rather to find people who won't perform them when they shouldn't be performed -- underage kids, for example. This latitute allowed to the marriage solemnizers allows marriage performers to use many different reasons to refuse to perform any particular marriage, even unsavory and against-public-policy reasons. Ed Darrell Dallas Jean Dudley [EMAIL PROTECTED] wrote: 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" will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy "forced" to marry mixed-race couples against their will? -- Edie "A man without doubts is a monster" --Garrison Keillor ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as! private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage? -- a free exercise right?
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 marriage ceremony? There are religious bodies in America that do hold that doctrine, that any two consenting, non-consanguineous adults have the right to marry, regardless of gender, gender-identity, age disparity, (provided both parties are of majority) or race disparity. Clergy of those religious bodies do indeed formalize or solemnize same-sex marriages, (sometimes called unions or handfastings) in public and private rituals or ceremonies. However, they (the couple) are prohibited from registering the marriage because they are unable to produce the license signed by the officiant. So, strictly speaking, it's not the clergy's rights being denied. Provided it is in the doctrine of their church, they are free to solemnize a wedding. I've heard an anecdotal account of a gay couple in Rhode Island who were issued a marriage license, based on the fact that they were members of a religion that allowed gay marriage. However, knowing the individual personally as someone who is more a teller of tall tales than a reliable source of information, I doubt it highly. Especially since he himself was the one who supposedly obtained the license. On the other hand, again, anecdotally, there is a couple in Rhode Island who began as male and female, and one of them went through gender reassignment after a legal marriage. They are probably the only same-sex, legally married couple recognized in Rhode Island. Jean Dudley http://jeansvoice.blogspot.com Future Law Student. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rights of clergy regarding same-sex marriage? -- a free exercise right?
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 marriage is not legally recognized). It is simply speech, with no noncommunicative impacts that may warrant regulation. While agreements to commit crimes or possibly even to engage in other constitutionally unprotected conduct might be punishable as conspiracy (though the precise theory of that is unclear), I don't see how an agreement to love, honor, and cherish -- and, even if it implicitly includes having sex, to have constitutionally protected sex -- would fit within any such exception, any more than an agreement to spread ideas. Perhaps a marriage ceremony between people who lack the constitutional right to have sex, for instance when one party is a minor, or possibly if the parties are too closely related or one of the parties is still married to someone else, might be seen as somehow aiding and abetting a crime, though I'm skeptical of that. But absent those factors, the marriage ceremony strikes me aspure speech that can't be treated as a criminal conspiracy. This is so even if there is no constitutional right to *marry* members of the same sex (and I think there isn't). The state has no obligation to recognize the marriage. But it seems to me that the simpleconduct of a verbal ceremony can't be outlawed, any more than the conduct of a verbal ceremony in which people pledge to convey Socialist ideas. Thus, the right flows from the Free Speech Clause, and is applicable to the religious and nonreligious alike -- a more appealing result, it seems to me, than a Free Exercise Clause right which would protect religious marriage ceremonies but not secular ones. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul FinkelmanSent: Tuesday, March 15, 2005 6:56 AMTo: Law Religion issues for Law AcademicsSubject: Rights of clergy regarding same-sex marriage? -- a free exercise right? 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 Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]Ed Darrell wrote: 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 with another official presiding at some other location. Traditionally, in the U.S. the problem has not been finding people to perform marriages, but rather to find people who won't perform them when they shouldn't be performed -- underage kids, for example. This latitute allowed to the marriage solemnizers allows marriage performers to use many different reasons to refuse to perform any particular marriage, even unsavory and against-public-policy reasons. Ed Darrell Dallas Jean Dudley [EMAIL PROTECTED] wrote: 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" will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy "forced" to marry mixed-race couples against their will?-- Edie"A man without doubts is a monster"--Garrison Keillor___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as! private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to th
