Roger, I completely understand your argument. But what about the religious liberty that has been denied for so many years by the state's refusal to authorize same-sex marriage? As Marci points out, we tend to forget that many people and churches feel quite strongly in favor of gay and lesbian equality; various congregations desire to celebrate same-sex unions and have done so even where they are not legally recognized. So why have gay people and gay-supportive congregations not been allowed in most places to follow their "religious dictates or callings in an integrated fashion"? Do you find this infringement of religious conscience equally troubling? If not, what is the principled distinction? For most religious conservatives, religious liberty still seems to be a form of special privilege, or a one-way street: exemptions from secular laws when those laws uphold gay and lesbian equality, but tacit (or active) approval when the laws prevent gay-friendly people and congregations from fully enacting their beliefs. To borrow your words, "who [has] benefited exactly" from laws excluding gays from civil marriage? Certainly not the couples and their children who were denied the protection of the laws. The state "could have easily accommodated [these] beliefs in a live and let live fashion," but in most places it has not -- in no small part due to the demands of more conservative religious believers that it not do so. Steve Sanders
_____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino Sent: Friday, April 10, 2009 1:54 AM To: religionlaw@lists.ucla.edu Subject: RE: Impact of same-sex marriage rulings on strictscrutinyinreligious exemption cases >> when churches step outside that sphere in order to play (as Roger puts it) a "robust role in public life," as they have a right to do, aren't they necessarily expected to honor the public laws? But therein lies the problem Steve. Religious institutions and individuals often are not "stepping outside" of their religious roles when engaging in public endeavors, but are merely following religious dictates or callings in an integrated fashion. For example, Catholic Charities in Boston did not begin providing adoption services around 100 years ago out of mere philanthropy, but out of sincere religious conviction. But unfortunately, by 2005 it could no longer "honor the public laws" because the public laws would not in turn respect its deeply-held religious beliefs that prevented it from placing children under its care in same-sex households. Catholic Charities did, in a way, honor the laws by withdrawing from the adoption business entirely instead of violating the law or sacrificing conscience. But didn't religious liberty suffer as a result? And who benefited exactly? Certainly not orphan children who lost a major source of family placements (especially in hard cases). And same-sex couples looking to adopt are limited to using the exact same adoption agencies available to them as before the controversy. The state could have easily accommodated Catholic Charities' beliefs in a live-and-let-live fashion and I would not have called that a granting of special privileges or a conversion of Catholic Charities into a law unto itself. I think a similar analysis applies to marriage and suggests why houses of worships should still be able to rely only on their theology when choosing what relationships they will solemnize through a dual religious and civil ceremony. Ironically, this dual arrangement likely furthers a stated interest of courts that approve of same-sex marriage--that of increasing the number of committed couples that enter into civilly-recognized marriages. -Roger Severino _____ From: steve...@umich.edu To: religionlaw@lists.ucla.edu Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases Date: Wed, 8 Apr 2009 23:06:04 -0700 The protected sphere for religion should involve that which is actually religious. Thus, churches should not be compelled to dispense sacraments to those of whom they disapprove. But when churches step outside that sphere in order to play (as Roger puts it) a "robust role in public life," as they have a right to do, aren't they necessarily expected to honor the public laws? Roger seems to be arguing for special privileges -- freedom not only to dispense sacraments in the religious sphere, but also freedom to serve as arbiter of whose marriages may be solemnized in the public sphere. But the freedom to practice religion cannot mean that, when it enters the public square, a religious institution gets to remain a law unto itself. For purposes of civil marriage, solemnization is not an inherently religious activity. Thus, why should a church be allowed to pick and choose which marriages it will solemnize in the state's name? Isn't the power to perform solemnizations a privilege, not a right? Imagine we're in a state that doesn't allow same-sex marriage, but a house of worship insists that it be allowed to create such marriages (and have them fully recognized by the state) because failure to do so would violate its freedom of conscience? How is that different from letting churches turn away those whom the law deems entitled to solemnization? In both cases, religious freedom is being used to demand a special niche where civil rules are bent in order to conform to religious doctrines. Steve Sanders _____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino Sent: Wednesday, April 08, 2009 9:28 PM To: religionlaw@lists.ucla.edu Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases Art, I am curious to know why you think same-sex marriage states will not (ever?) impose new regulations on the power of clergy to solemnize civil marriages. As for the religious liberty interests at stake, it is again, not a question of direct coercion, but of whether religious institutions that remain true to their religious identity will be allowed to retain a robust role in public life when that identity conflicts with the priorities or preferences of the state. Religious solemnization of civil marriage is just one manifestation of this issue--partnerships with religious institutions and government in the provision of social services (like adoption or marriage counseling) is another, and the list goes on. Another concern I had in mind was the fact that if the state does move to strip clergy of their solemnization power, it may do so selectively. That is, only certain houses of worship would literally get the state seal of approval to solemnize marriages while others would not and the state's choice of winners and losers will turn precisely on each religious institutions' theology of marriage. -Roger Severino (Disclaimer: all opinions expressed are mine alone) In a message dated 4/7/09 11:11:32 PM, rseveri...@hotmail.com writes: what is to stop Iowa from stripping dissenting religious institutions, and only such institutions, of the power to solemnize *civil* marriages? That seems unlikely to me, but what if it does -- how does that deprive a religious institution of its *religious* liberty? <http://windowslive.com/explore?ocid=TXT_TAGLM_WL_allup_1a_explore_042009> _____ Rediscover HotmailR: Get e-mail storage that grows with you. Check <http://windowslive.com/RediscoverHotmail?ocid=TXT_TAGLM_WL_HM_Rediscover_St orage1_042009> it out. _____ Rediscover HotmailR: Get e-mail storage that grows with you. 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