Wednesday, January 27, 2010

Making it explicit: Religious freedom and civil marriage

Despite the fact that no religious group can be required to perform a marriage of which they do not approve (think Catholics and divorce) this continues to be a canard that the equality opponents raise. Apparently fearful of bands of tasteful homos demanding that a faith community that despises them, marry them anyway? Well, whatever. In order to spike the guns on that particular argument, openly gay CA State Senator Mark Leno has introduced The Civil Marriage Religious Freedom Act, SB 906.
Leno’s legislation is sponsored by the California Council of Churches, IMPACT a nd Equality California, which was the main group opposing Prop. 8.....

"We strong support religious freedom and the rights of clergy to only solemnize weddings they want to solemnize," [Geoff]Kors, [director of EQCA] says. The bill would not apply to government employees who perform weddings, who would have to treat gay and straight couples the same. It would also protect the rights of churches to reserve church facilities for their own members [as long as they don't rent them to the general public].

"As we know from the Yes on 8 Campaign and what we’re seeing in the federal trial, many people and a lot of the right-wing groups we’re up against have lied to Californians about who has to marry people and how clergy might be arrested and churches might lose their tax-exempt status," said Geoff Kors.
Equality CA urges Californians to write your state legislators in support. I agree!

This piece of legislation codifies in state law that no member of clergy is required to solemnize a civil marriage that is contrary to the tenets of his or her faith or that would infringe on his or her right to freedom of religion as guaranteed by the California Constitution and the First Amendment of the U.S. Constitution. The bill also clarifies that civil marriage is a civil contract that requires a state-issued marriage license.

Both the California and U.S. Constitution currently protect religious freedom. However, until such protections are codified under law, there is ambiguity. It is necessary to strengthen these religious protections for clergy through state law to eliminate any uncertainty. The state cannot compel clergy to solemnize any civil marriage.
The anti-equality guys have claimed this is one of their big concerns. Even though they already have the protections, let's call them on it. Take this excuse away. Call or write your state senator and urge them to sponsor this bill. Keep a bright line between civil and religious unions.

35 comments:

John Sandeman said...

Would this apply to an episcopalian clergyperson? Could they argue that the tenets of their faith is infringed if their denomination supports gay blessings?

David |Dah • veed| said...

The Concern Troll pops up again!

John, every bishop who has approved generous pastoral accommodation in their diocese has gone out of their way to state that providing said generosity is a matter of conscience for individual clergy.

As is officiating at any Rite of Matrimony for for any clergy in our churches in North America. They are not required to perform marriages. And a few have elected not to perform any marriages, All Saints Pasadena for example, until they can perform marriages for faithful same sex couples as well as faithful opposite sex couples.

Marshall Scott said...

John, the Canons of the Episcopal Church already specify that no member of the clergy is required to solemnize a marriage to which he or she objects. The First Amendment to the Constitution protects "free exercise" of religion, which includes the said right of refusal. I can't imagine that a court would even consider such a case in light of the understanding of separation of church and state.

This has been batted about in the rhetoric, and those who oppose civil marriage for GLBT persons express concerns, but I don't think anyone seriously expects this to change. There are really, I think, two things going on. First, many people simply don't think one can get married, or at least get married appropriately, except in a religious setting. There continues to be something of a lesser status for civil marriages, at least in public opinion.

Second, couples do pay fees and honoraria for weddings, both for clergy participation and for use of facilities. Commonly in Episcopal parishes these funds are not seen as income, either to the parish or to the cleric. They simply reimburse for time and utilities committed, and the funds received go back into ministry, not into the cleric's pocket. However, in other traditions, especially in smaller, more congregational or independent settings, these fees may well be seen as part of the cleric's income, and an important part at that. It's not unknown for lay boards to reduce the congregation's salary to the cleric by the amount they expect the cleric to receive for weddings and funerals. So, there may be cases where an individual cleric might feel financial pressure; but that doesn't involve any juridical mandate.

John Sandeman said...

David,
Suppose TEC changes its canons to allow same sex marriage. Would you continue to support clergy refusing same sex marriage - ie discriminating on the basis of sexual orientation? Or would you support codifying this conscientious objection into TEC canons as well as state law?

IT said...

Clergy are allowed wide latitude already to refuse to marry anyone for any reason. Therefore this is a complete red herring.

Speaking as a gay person, I would also add that I certainly would NOT want the person performing my marriage (or blessing) to be opposed to the very act, and to be doing it under duress.

if our marriage is ever given a church blessing (which I think would mean much to my wife) I would like the presiding priest to be deliriously joyful about the whole thing. What's happier than a wedding?

honestly, when your side asks these questions, I have to ask, what do you take us for? Do you really think that we view our marriages as some sort of political statement to score cheap debate points? That's yet another way the conservatives try to demonize and dehumanize us.

Elizabeth said...

I will re-emphasize IT's comment. My father was an Episcopal priest. There were occasions when he refused to marry a couple. I remember one where the groom could not remember the names of his prior four wives! My father always informed the bishop of his reason just as a courtesy. This has nothing to do with same sex marriage; it has only to do with a priest having the right to refuse to marry anyone he/she doesn't feel comfortable with. BTW, if I were in CA, I would support the clarification bill.

John Sandeman said...

IT: can I assure you I do not regard your relationship either as a political statement or a debating point.
TEC has an anti discrimination canon. At the moment Same Sex Marriages or blessings are non-canonical or extra-canononical so the pastoral arrangements announced by individual bishops do not interact with that canon.
This will change if TEC changes its marriage canon, surely.
Here is a discussion about similar issues with the canons in the (Episcopal) diocese of san joaquin where a requirement for clergy to abstain from sexual relations outside of Holy Matrimony has been held to conflict with the anti-discrimation canons of TEC. http://cariocaconfessions.blogspot.com/2008/10/incongruities-in-central-valley.html
Note that the concern about the canons has not been raised by conservatives.

Marshall Scott said...

John, as Elizabeth noted, there are other appropriate reasons for refusing to participate in a wedding. For example, if one fears the relationship is abusive, it shouldn't matter whether the partners are homosexual or heterosexual. My professor of New Testament would refuse to marry a couple whose ages added up to less than 42 - and for those that did add up to 42, only if their ages were less than two years apart.

Would that change if we changed the Marriage Canons? I don't think so, really, although there might be more than one way to change the Canons. Remember, too, that the Inclusion Canon specifies access to a process, not to the results.

The Werewolf Prophet said...

John, what part of "Thou shalt not bear false witness against thy neighbor" don't you understand? And for that matter, how about "Fear not!"

John Sandeman said...

Werewolf,
I might disagree with some here but I don't think I have lied to them. Perhaps we all need not to fear each other.

JCF said...

TEC has an anti discrimination canon. At the moment Same Sex Marriages or blessings are non-canonical or extra-canononical so the pastoral arrangements announced by individual bishops do not interact with that canon. This will change if TEC changes its marriage canon, surely.

and

a requirement for clergy to abstain from sexual relations outside of Holy Matrimony has been held to conflict with the anti-discrimation canons of TEC.

????

This is absolutely Apples & Oranges, John S. [Or "Oil & Water", if the former aren't different enough!]

What you've brought up in this post I quote, refers to the canons for a priest's OWN life (i.e., the canons ought not require marriage of a priest, if that priest is legally unable to marry his/her same-sex partner).

What you were talking about previously, is whether a priest chooses to solemnize (celebrate, preside at) a marriage . . . or not.

Can't you see the difference here? I can foresee NO circumstances by which a priest's individual choice to solemnize ---OR NOT--- will be taken away.

I don't question your veracity, John. But you do have a "dog w/ a bone" quality (once you've been told, "No, those who are anti-gay and/or anti-WO WILL be able to continue to be anti-gay and/or anti-WO) which rapidly grows tiresome [See re this thread at Fr Tobias Haller's blog. You asked essentially the SAME question 11 times! :-0]

It is this obsessive tendency---ONLY re your self interest--which does sometimes make you (IMHO) a "Concern Troll."

Tobias Stanislas Haller said...

John, as noted above the TEC Canons specifically permit a priest to refuse to solemnize any marriage -- even those that are canonically regular. In fact, the canons forbid a priest solemnizing a marriage that is canonically irregular. I do not foresee this part of the marriage canon changing. So you are either beating a dead horse or flogging a red herring. You simply seem to be unwilling to take No for an answer -- no priest will be forced to perform a same-sex marriage, nor penalized for refusing to solemnize one. Period.

John Sandeman said...

Tobias,
here's something I would be prepared to take "no" for an answer. Given the anti-discrimination canon, would it be okay for a TEC minister to have a public policy of refusing same sex marriages if the marriage canon is changed to allow them.
Or would the right of access to the process implied in the anti-discrimination canons disallow this? Or put them in a position where they are seen as opposing the canons?
This is somewhat different from the issue of priests dealing with marriages as individual instances. I take your point on that - but it is not the issue I raise.
JCF,
If you re-read the dialogue on Tobias' site you will see that Tobias agrees that an outspoken opponent of Women's ordination would have difficulty becoming a priest in TEC. This is a key issue for conservatives- they are aware that with no new priests their views will disappear from the church.
You (and David) seem to object to sustained argument from someone who disagrees with you. But sometimes we need to go through a process of carefully restating things so that we can understand each other. If you are impatient with that, then perhaps you are becoming impatient of difference. I suspect this impatience is growing on both sides of the fence.

Tobias Stanislas Haller said...

And just to comment on the other conversation: there is a world of difference between someone being "forced out of the church" and "not being able to be ordained." There is, as I admit, no canonical protection for someone proclaiming a belief at odds with the stated position of TEC regarding the ordination of women. But there is explicit canonical protection for clergy not to have to perform a marriage they don't want to perform, and the anti-discrimination has no impact on that. (The issue in San Joaquin was about the cleric's own marital status, and did run afoul of the anti-discrimination canon; though as I mentioned in the conversation at my blog, I know of no bishop who has refused ordination to a partnered gay priest having been charged with an offense, and the canons only reference 'access to discernment' -- so a case would be hard to prove. If anyone is still discriminated against in TEC, it is not those opposed to same-sex marriages, but those who support them.

Tobias Stanislas Haller said...

John, I see my initial response to you appears to have vanished in the ether. So these are out of sequence. The substance of my first comment was to give a definitive Yes to your question, "would it be okay for a TEC minister to have a public policy of refusing same sex marriages if the marriage canon is changed to allow them."

As I noted in the earlier comment, the canons are not about allowing a priest to avoid a marriage that would be uncanonical -- since solemnizing such a marriage would be a violation. The allowance only makes sense as a right to refuse to solemnize a marriage that is permissible. As to making it a matter of policy, an example might be helpful.

The Episcopal Church permits, by canon and rubric of the BCP (which has even higher authority) marriages in which one of the couple is not baptized. Clergy who object to this have every right to make it a stated policy that they will not perform such marriages. I am of that mind myself.

As I alluded in the other comment, the anti-discrimination canon is a red herring, as it doesn't apply to marriage. In fact, "marital status" is one of the protected categories, but being married already is a bar to marriage. In addition, a priest who had a conscientious objection (and I think this is the real reason for the canon) to solemnizing the marriage of a person who is divorced (even if annulled), is perfectly able to refuse to take the service.

I hope this is a definitive response to your concern.

John Sandeman said...

Tobias,
thank you for your assurance. I wonder whether "baptismal state" is part of the anti-discrimination canon? If I appear to be skeptical, it is because I have observed the effect of a similar anti- discrimination ordinance in the Uniting Church. Presbyteries were not allowed to refuse to consider gay ministers, they were obliged to consider them one by one. But you are in TEC and I am not so I bow to your superior knowledge. (It will be interesting to revisit this in say five years time, however).

On your first (or was it the second?) comment about 'there is a world of difference between someone being "forced out of the church" and "not being able to be ordained."' I am not so sure.
At the level of the individual you are right. But church is not, as you will agree, merely an individual experience.
If priests of a certain sort of theology are not produced within a denomination, then that strain of christianity will be weakened in that group. The right of a bishop to control the licensing of priests and who is recognised as a student minister is a powerful right.
If you believe in women's ordination you are allowed to attend a Southern Baptist church but you would have no chance to become a minister. Have the SBs kicked out their pro women's ordination people?
Effectively, yes. And yet an individual can choose to stay.
I think some of these issues apply to a wide range of christian churches, right or left.

Tobias Stanislas Haller said...

John,
I'm not sure I understand your question about "baptismal state" --- --- and you appear to be evincing a tendency to changing the subject! --- but the antidiscrimination canons only refer to the baptized: the first is part of the canon "Of regulations respecting the laity" and the second "Of the ministry of all baptized persons." Your further comment wanders back into a discussion concerning gay ministers as opposed to the topic at hand, as I understand it, which is the authority to refuse to solemnize any given marriage. But even on this other point, the nondiscrimination can concerning ordination only concerns "access to the discernment process for any ministry lay or ordained" but does not guarantee a call or assignment to any ministry.

As to your second point --- is obvious if one examines the history of the church, even from the earliest days recorded in Scripture, that certain doctrinal developments did lead to the eventual self exclusion of those who did not want to go along with those developments: one thinks of the circumcision party for example. But your argument that seeks to contrast individual versus denominational does not appear to be to bear close examination --- and appears to place far too much emphasis on ordination. As I mentioned at my place, even a vocal opponent of the ordination of women, though he might find it difficult, might still find a place in the Episcopal Church in which he could be ordained. One wonders, however, why he would want to do so, since so many other options are available. But "difficulty" does not mean "prohibition." There are a number of priests in the diocese of NY who do not accept the ordination of women. The bishop does not send them Bishop Roskam for a visitation. We live in a world of mutual respect and forbearance. If you want prohibition, narrowness, and dogmatism concerning who is eligible to be ordained, you have to look to your own side: from which women and gays are definitively excluded from consideration (though the latter obviously slip through if they are willing not to be open about their lives or views.

John Sandeman said...

Tobias,
I welcome your comment about the DNY's Bishop Sisk to sending bishop Roskam to parishes where the minister is opposed to te ordination of women. But we're talking about the ability of those outspokenly opposed to the ordination of women to get ordained. So, when did Bishop Sisk last ordain an (outspoken) opponent of Women's ordination? (If you can say "last year", lets say, I am quite happy to concede the argument. I would be most happy to.)

IT said...

I just want to highlight this comment of Tobias's:

If you want prohibition, narrowness, and dogmatism concerning who is eligible to be ordained, you have to look to your own side: from which women and gays are definitively excluded from consideration (though the latter obviously slip through if they are willing not to be open about their lives or views.

Tobias Stanislas Haller said...

John, I'm not even sure what the argument is at this point; but I know Bishop Sisk is not alone in this policy. As to your question, first, as I hope you realize, there are not all that many ordinations to the priesthood in the Diocese of New York in a given year -- normally not more than five or six total. Given that those vocally opposed to the ordination of women represent a minority in the Episcopal Church, I can't swear that one was ordained last year! But that is a far cry from the assertions of persecution that began the discussion, over at my blog, and which seems to have drifted to this one. I can say that in the last several years priests with those views have been called and installed as rectors of some of our more "traditionalist" parishes, and that at least a few of these parishes have sponsored candidates for ordination who have been approved -- including my own input, as I serve on the standing committee and work with the commission on ministry in that capacity. At least one of them made his views on women and gays known in this process -- I'm not sure if that qualifies as "outspoken" -- and he is not yet actually ordained, but is now in the process that all things being equal and pending completion of a successful seminary education, will lead to ordination within a year or so.

As I say, we have a very easy-going diocese, a big tent; there has only been one "departure" by a parish and that was over a decade ago. The Episcopal Church as a whole is simply far more welcoming and diverse than the radical right would have you believe. As I noted before, it is they who do not want a church that includes people with whom they disagree.

IT said...

Back to the topic of the post, so-called religious community in CA eliminates the right to marriage because they claim MY marriage impinges on THEIR freedom.

Why is it that the conservatives are so eager to play the persecution card, and so able to get away with it, when they are the ones doing the persecuting?

And in the subject of John's tenacious complaint here, there is much evidence of leaning over backward to accommodate conservative views, and almost none going the other way. Yet the conervatives still claim victimhood.

John Sandeman said...

Tobias,
thankyou for persisting with this conversation. I appreciate your care in answering my query. It would only take the instance of one appointment of a ordinand or new licenses for conservative priests to answer me, and you have done that. Thankyou. I am pleased that people against ordination of women and/or gay priests are welcomed in your diocese.
IT,
If you want to look at the US conservative complaints about persecution there is a new report from the AAC. I won't link to it hereh, but it will be easy to find. Whether or not you find their case convincing it is true that most of the people leaving job and buildings behind have been conservatives and as the court cases continue there will be more I guess. Misguided or not, they are paying a price for their convictions.

Jarred said...

It was their choice to leave John. Whining that they couldn't take the silverware with them when it wasn't theirs to take is not a sign of persecution. They need to learn to own their choices, plain and simple.

John Sandeman said...

I am not sure which is worse, Jarred, a lack of magnaminity from the left or as you put it a whining from the right. I agree with you absolutely that people will have to own their choices in this matter, and time will tell who does this well. I am convinced that there will be people who own their choices well on the left and also on the right.

Jarred said...

What lack of magnanimity, John?

As IT pointed out earlier, the liberals have done much to try their best to accommodate the conservative views. Those espousing those views have simply repaid it by declaring all such attempts insufficient and demanding more under the threat of either leaving or trying to get the left kicked out.

If that's what you consider a lack of magnanimity, then I'd say your concept of magnanimity is (1) completely different from my own and (2) highly overrated.

John Sandeman said...

Jarred,
I think we will have to disagree on this one. There are some cases where people have behaved generously. Bishop Lee of Virginia might be an example for eample. But I don't think other bishops tried as hard as he to keep the conservatives in. You want to tell me some stories to the contrary? please!

Jarred said...

And what exactly do you think the bishops could have done to keep the conservatives in?

Bear in mind that no one asked the conservatives to leave. They chose to do that on their own. No one tried to force conservative parishes to accept gay (or female) priests. In fact, Tobias has already demonstrated how bishops even take conservative parish's views into account when sending someone to visit them.

The bottom line is, again, that conservatives are choosing to leave. Accusing liberals of lacking magnanimity simply because they're not begging the conservatives to change their mind is silly at best and disingenuous at worst.

John Sandeman said...

Jarred,
yes, conservatives are choosing to leave. There are still many left inside TEC, and these may be greater in number than those who have left so the topic you raise is not an academic one for TEC.
It is a big call to say that NO ONE has tried to force conservative parishes to accept gay (or female) priests. I am not sure how you could prove that. Tobias I am sure would agree that we cannot know that, and maybe would say that not every bishop in all 110 dioceses has behaved well.
The clearest example is New Hampshire where +Robinson insisted that a condition of DEPO was that Trinity parish recognise his authority as Bishop. I don't think the conservatives there were left with much option but to go.
I think an arrangement that created
a network of "peculiars" or "proprietory chapels" for conservatives with their own bishop may have kept most of the conservatives in TEC.
(And let me repeat I am not sure that the conservatives behaved as well as they should have. The AMiA path of leaving without the property was the best one in my view.)

Jarred said...

John,

I'm sticking to my claim that no one has forced conservatives to leave until such time as you point to a quote from a bishop saying, "You are not welcome in my diocese. Leave."

See? Isn't it funny how you demand proof and yet expect me to accept that someone "might have" forced conservatives to leave? So I hope you'll understand if I don't play that game.

Tobias Stanislas Haller said...

Thank you Jarred, for answering John's challenge. I think the problem is that the dissidents (not all conservatives) are essentially anarchists who only want their own way -- a network of peculiars, contrary to the canon law of the church. They place their own conscience above the decisions of the church but want more than simply to be tolerated: they want to be insulated.

The New Hampshire case is instructive -- all Bishop Robinson demanded (and it is a perfectly just and legal demand) was that as bishop of the diocese he be recognized as such -- which is to say, to recognize reality. He had agreed to allow the parish to have visits and pastoral engagement with a designated alternate, in accordance with the law of the church. That this was not enough to satisfy the needs of a radical dissident faction is hardly an example of persecution, but exposes the mere anarchy and lawlessness with which the Episcopal Church has to deal.

John Sandeman said...

Thankyou Tobias for answering Jarred's challenge. The conservatives in New Hampshire were presented with a demand that they accept that that he was their bishop. In conscience they were unable to do that.
Bishop Robinson was clear that he wanted the conservatives to stay, but they had to accept him as their bishop.
Now, Jarred, it depends on the definition of "forced out". The refuseniks of Trinity church were told by Robinson that he wanted them to stay. But they were unwilling to accept him as their bishop, because they regarded this as surrendering their belief that there should not be gay bishops.
What if you attended a church and were required to affirm that you accepted that women could not be ministers? If you left as a result would you regard yourself as forced out?
Were the recusant Catholics forced out of the Church of England? What about the Quakers and Puritan groups that left England for America?

Jarred said...

What if you attended a church and were required to affirm that you accepted that women could not be ministers? If you left as a result would you regard yourself as forced out?

No, I would not.

John Sandeman said...

As I hinted previously it really comes down to what each one of us regards as being "forced out". And there is reasonable room for debate on that score.
There are some who say that their role as conservatives in TEC should simply be to stay, and suffer whatever comes their way. I respect these people as well as the ones who left, resigning jobs and leaving their homes as a matter of conscience.

Jarred said...

I don't think so, John. The fact that you acknowledge that other conservatives made different choices points out that conservatives were left with their free agency intact. Any attempt to claim "force" in the face of that fact is ludicrous.

But then, I've come to conclude that I believe in free agency and personal responsibility far more than most conservatives.

John Sandeman said...

I am not expecting to convince you Jarred. But let me leave you with an image from New Hampshire, which entirely to the bishop's credit. Sometime after the split, he was seen sitting in a back pew at m church service of the group that left. He seemed upset - from that story and some of his own writing it is clear that he was genuinely heartbroken that he could not keep his diocese together.