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 <[email protected]> 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 <[email protected]> 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
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