Re: Same Sex Marriage in Scotland
Every major religion whose early history is known started with one person -- Moses, Bhudda, Jesus, Mohammed. Individuals have religious beliefs and they have to be protected. In terms of original understanding, the nation was overwhelmingly Protestant at the time of the founding. And Protestants have always emphasized that every individual can read the scripture for himself and must make individual decisions about his faith. The lone individual may have practical problems proving sincerity, problems that are more straightforward for an individual following a well known teaching of a major faith. But that's a problem of proof, not of doctrine. The clearest Supreme Court decision on protection of individual faith is Thomas v. Indiana (1981). On Mon, 30 Jul 2012 23:32:11 -0400 (EDT) "b...@jmcenter.org" wrote: >Douglas, > > > >I am having difficulty with your first scenario and would appreciate some >clarification please. > >Assume for the sake of argument that the pastor's denomination (or the >hierarchy >of a hierarchical church) said that the same-sex marriage is consistent with >the >teachings of the church and even blessed by the church. > >Question: Would the pastor's belief be a mere personal belief not protected by >the Free Exercise Clause or would it be a "sincerely held religious belief" >protected by the Free Exercise Clause? The trouble I'm having is that a belief >of "one person" doesn't make very well for a recognizable religion. At minimum, >then, it would also seem to me shave a few grams off any balancing of >interests. > >Altho I continue to believe that Hosanna-Tabor was wrongly decided, I agree >with >on the second scenario given current jurisprudence. > >Bob Ritter >Jefferson Madison Center for Religious Liberty >A Project of the Law Office of Robert V. Ritter >Falls Church, VA >703-533-0236 > > >On July 26, 2012 at 11:11 AM Douglas Laycock wrote: > >> Hard to tell what they are proposing from this brief description. >> >> One possibility is that even if a denomination performs same-sex marriages, >> an >> individual pastor of that denomination who refuses cannot be penalized by the >> government. The government cannot regulate the individual pastor based on his >> denominational teaching. That is surely right. >> >> The other possibility is that the government will protect the dissenting >> pastor from being penalized by his denomination. That is clearly an >> unjustified interference in internal church governance. In the United States, >> I think it would be unconstitutional under Hosanna-Tabor v. EEOC. >> >> On Thu, 26 Jul 2012 10:52:42 +0100 >> Scot Peterson wrote: >> >Dear all, >> > >> >I normally just lurk on this list, but I had a question that people might >> >help me out with. Yesterday, the Scottish government announced that it will >> >bring in a bill for same-sex marriage, including religious marriage, with >> >religious denominations and faiths having the ability to refuse to perform >> >same-sex marriages. The troubling statement by the government is this one: >> > >> >[O]ur view is that to give certainty on protection for individual >> >celebrants taking a different view from a religious body that does agree to >> >conduct same sex marriages, an amendment will be required to the UK >> >Equality Act. >> > >> >Seemingly, the Scottish government wants to provide an opt-out for >> >individual clergy even if their denomination decides to authorise >> >solemnisation of SSM and doesn't itself offer such an opt-out. >> > >> >One way of thinking about this is that they are authorising individual >> >clergy to provide SSM, but they don't want to force anyone to have to act >> >in this way on behalf of the government. A more historical (and stricter >> >religious freedom) argument, which I think may be right is that this is >> >unwarranted tampering with the internal governance of the religious >> >organisation. (I think here of the Disruption of the Church of Scotland, >> >which came about in 1843 when the government forced clergy into posts over >> >the veto of the congregation; a situation that was supposedly rectified >> >following passage of the Church of Scotland Act, 1921). I haven't read >> >Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm >> >betting that some of you have strong opinions on this one way or the other, >> >and I would be very interested to know what they are. >> > >> >I would be particularly interested in what people thought might happen >> >under the European Convention on Human Rights (my bet is that that court >> >would just authorise whatever the legislature decided on). >> > >> >All best, >> >Scot Peterson >> >University of Oxford >> >> Douglas Laycock >> Robert E. Scott Distinguished Professor of Law >> University of Virginia Law School >> 580 Massie Road >> Charlottesville, VA 22903 >> 434-243-8546 >> ___ >> To post, send message to Religionlaw@lists.ucla.
Re: Same Sex Marriage in Scotland
Douglas, I am having difficulty with your first scenario and would appreciate some clarification please. Assume for the sake of argument that the pastor's denomination (or the hierarchy of a hierarchical church) said that the same-sex marriage is consistent with the teachings of the church and even blessed by the church. Question: Would the pastor's belief be a mere personal belief not protected by the Free Exercise Clause or would it be a "sincerely held religious belief" protected by the Free Exercise Clause? The trouble I'm having is that a belief of "one person" doesn't make very well for a recognizable religion. At minimum, then, it would also seem to me shave a few grams off any balancing of interests. Altho I continue to believe that Hosanna-Tabor was wrongly decided, I agree with on the second scenario given current jurisprudence. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On July 26, 2012 at 11:11 AM Douglas Laycock wrote: > Hard to tell what they are proposing from this brief description. > > One possibility is that even if a denomination performs same-sex marriages, an > individual pastor of that denomination who refuses cannot be penalized by the > government. The government cannot regulate the individual pastor based on his > denominational teaching. That is surely right. > > The other possibility is that the government will protect the dissenting > pastor from being penalized by his denomination. That is clearly an > unjustified interference in internal church governance. In the United States, > I think it would be unconstitutional under Hosanna-Tabor v. EEOC. > > On Thu, 26 Jul 2012 10:52:42 +0100 > Scot Peterson wrote: > >Dear all, > > > >I normally just lurk on this list, but I had a question that people might > >help me out with. Yesterday, the Scottish government announced that it will > >bring in a bill for same-sex marriage, including religious marriage, with > >religious denominations and faiths having the ability to refuse to perform > >same-sex marriages. The troubling statement by the government is this one: > > > >[O]ur view is that to give certainty on protection for individual > >celebrants taking a different view from a religious body that does agree to > >conduct same sex marriages, an amendment will be required to the UK > >Equality Act. > > > >Seemingly, the Scottish government wants to provide an opt-out for > >individual clergy even if their denomination decides to authorise > >solemnisation of SSM and doesn't itself offer such an opt-out. > > > >One way of thinking about this is that they are authorising individual > >clergy to provide SSM, but they don't want to force anyone to have to act > >in this way on behalf of the government. A more historical (and stricter > >religious freedom) argument, which I think may be right is that this is > >unwarranted tampering with the internal governance of the religious > >organisation. (I think here of the Disruption of the Church of Scotland, > >which came about in 1843 when the government forced clergy into posts over > >the veto of the congregation; a situation that was supposedly rectified > >following passage of the Church of Scotland Act, 1921). I haven't read > >Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm > >betting that some of you have strong opinions on this one way or the other, > >and I would be very interested to know what they are. > > > >I would be particularly interested in what people thought might happen > >under the European Convention on Human Rights (my bet is that that court > >would just authorise whatever the legislature decided on). > > > >All best, > >Scot Peterson > >University of Oxford > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > ___ > 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: Same Sex Marriage in Scotland
I think the problem is that currently the UK Equality Act creates a conscience exemption only where necessary to comply with the doctrine of a religious organization or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. That would not cover the clergyman who disagrees with the majority view of his denomination. See http://religionclause.blogspot.com/2012/07/scottish-government-will-move-ahead.html for some additional information. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock Sent: Thu 7/26/2012 11:11 AM To: Law & Religion issues for Law Academics; Scot Peterson Subject: Re: Same Sex Marriage in Scotland Hard to tell what they are proposing from this brief description. One possibility is that even if a denomination performs same-sex marriages, an individual pastor of that denomination who refuses cannot be penalized by the government. The government cannot regulate the individual pastor based on his denominational teaching. That is surely right. The other possibility is that the government will protect the dissenting pastor from being penalized by his denomination. That is clearly an unjustified interference in internal church governance. In the United States, I think it would be unconstitutional under Hosanna-Tabor v. EEOC. On Thu, 26 Jul 2012 10:52:42 +0100 Scot Peterson wrote: >Dear all, > >I normally just lurk on this list, but I had a question that people might >help me out with. Yesterday, the Scottish government announced that it will >bring in a bill for same-sex marriage, including religious marriage, with >religious denominations and faiths having the ability to refuse to perform >same-sex marriages. The troubling statement by the government is this one: > >[O]ur view is that to give certainty on protection for individual >celebrants taking a different view from a religious body that does agree to >conduct same sex marriages, an amendment will be required to the UK >Equality Act. > >Seemingly, the Scottish government wants to provide an opt-out for >individual clergy even if their denomination decides to authorise >solemnisation of SSM and doesn't itself offer such an opt-out. > >One way of thinking about this is that they are authorising individual >clergy to provide SSM, but they don't want to force anyone to have to act >in this way on behalf of the government. A more historical (and stricter >religious freedom) argument, which I think may be right is that this is >unwarranted tampering with the internal governance of the religious >organisation. (I think here of the Disruption of the Church of Scotland, >which came about in 1843 when the government forced clergy into posts over >the veto of the congregation; a situation that was supposedly rectified >following passage of the Church of Scotland Act, 1921). I haven't read >Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm >betting that some of you have strong opinions on this one way or the other, >and I would be very interested to know what they are. > >I would be particularly interested in what people thought might happen >under the European Convention on Human Rights (my bet is that that court >would just authorise whatever the legislature decided on). > >All best, >Scot Peterson >University of Oxford Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Same Sex Marriage in Scotland
Hard to tell what they are proposing from this brief description. One possibility is that even if a denomination performs same-sex marriages, an individual pastor of that denomination who refuses cannot be penalized by the government. The government cannot regulate the individual pastor based on his denominational teaching. That is surely right. The other possibility is that the government will protect the dissenting pastor from being penalized by his denomination. That is clearly an unjustified interference in internal church governance. In the United States, I think it would be unconstitutional under Hosanna-Tabor v. EEOC. On Thu, 26 Jul 2012 10:52:42 +0100 Scot Peterson wrote: >Dear all, > >I normally just lurk on this list, but I had a question that people might >help me out with. Yesterday, the Scottish government announced that it will >bring in a bill for same-sex marriage, including religious marriage, with >religious denominations and faiths having the ability to refuse to perform >same-sex marriages. The troubling statement by the government is this one: > >[O]ur view is that to give certainty on protection for individual >celebrants taking a different view from a religious body that does agree to >conduct same sex marriages, an amendment will be required to the UK >Equality Act. > >Seemingly, the Scottish government wants to provide an opt-out for >individual clergy even if their denomination decides to authorise >solemnisation of SSM and doesn't itself offer such an opt-out. > >One way of thinking about this is that they are authorising individual >clergy to provide SSM, but they don't want to force anyone to have to act >in this way on behalf of the government. A more historical (and stricter >religious freedom) argument, which I think may be right is that this is >unwarranted tampering with the internal governance of the religious >organisation. (I think here of the Disruption of the Church of Scotland, >which came about in 1843 when the government forced clergy into posts over >the veto of the congregation; a situation that was supposedly rectified >following passage of the Church of Scotland Act, 1921). I haven't read >Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm >betting that some of you have strong opinions on this one way or the other, >and I would be very interested to know what they are. > >I would be particularly interested in what people thought might happen >under the European Convention on Human Rights (my bet is that that court >would just authorise whatever the legislature decided on). > >All best, >Scot Peterson >University of Oxford Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
