We’ve noticed many times how jeremiads about religious freedom seem to go in only one direction – freedom to refuse service to gay couples, freedom to refuse to perform medically necessary abortions, freedom to shield child-raping priests from the law. Mark Joseph Stern at Slate points to an example from silence as opposed to jeremiad.
On Monday, the United Church of Christ brought a federal lawsuit against North Carolina’s marriage laws, which were amended in 2012 to ban gay unions. What interest does the United Church of Christ have in toppling the state’s homophobic ban? Under North Carolina law, a minister who officiates a marriage ceremony between a couple with no valid marriage license is guilty of a Class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time.
I’m not certain why Ross Douthat, Ramesh Ponnuru, Mollie Hemingway, and other vociferous conservative defenders of religious liberty aren’t vocally outraged about this fact. Nor am I certain why, if religious freedom is truly one of the most cherished values of American conservatism, the religious right wasn’t incensed when Unitarian ministers in New York had to risk arrest while performing commitment ceremonies under a similar statute in 2004. Surely a vision of religious liberty that would allow a storeowner to turn away gays at the door would encompass the basic principle of allowing houses of worship to honor lifelong commitments they deem worthy of solemnization in the eyes of God.
But then he goes on to admit that actually he knows perfectly well why: the conservative jeremiadists are interested in only their kind of religious freedom.
Anyone legitimately concerned about the rights of believers to practice their faith as they wish should be appalled by North Carolina’s marriage laws. The threat of a minister going to jail simply for celebrating a gay marriage is a real, and terrifying, affront to the very premise of “free exercise” of religion. Given how irrationally concerned conservatives are that ministers may soon be arrested in America for refusing to conduct gay weddings, I would hope they would be equally horrified by the specter of a minister being arrested for agreeing to perform one. But, of course, they won’t be. The right has settled on a stunningly specious new narrative of victimization and religious oppression; to observe that some Americans are facing religious oppression for their pro-gay views just doesn’t fit the storyline. Consistency and morality would command conservatives to enthusiastically join the United Church of Christ’s lawsuit. Hypocrisy will prevent them from saying a word.
That’s why I don’t go in for jeremiads about religious freedom: I know perfectly well I don’t want to defend every kind of religious freedom there can possibly be, so I don’t talk about it that simplistically. Be careful what you undertake to defend.
Yeah, the same thing happens when a *gasp* muslim tries to take advantage of ‘religious liberty’ laws as well. Suddenly, the privileged class gets all verklempt and has second thoughts (as if they ever had first thoughts….).
: I know perfectly well I don’t want to defend every kind of religious freedom there can possibly be, so I don’t talk about it that simplistically. Be careful what you undertake to defend.
That’s an interesting problem though
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ”
If the latter half is open to interpretation , then so is the first half right.
“If the latter half is open to interpretation , then so is the first half right.”
Well, yeah. And?
There’s practically no provision in the Constitution that isn’t open to interpretation — not in the sense of “it can mean whatever you want it to mean,” but in that there are always some limits or nuances or conflicts with other provisions.
There are scores of legal precedents interpreting — or struggling to interpret — the Establishment Clause, and differing legal views on the matter. Justice Thomas doesn’t even think the Establishment Clause applies to the states — in his view, the state of Alabama (e.g.) could establish an official church if it wanted to. In recent years, the Court has struggled with issues like whether school vouchers are an Establishment Clause violation if they’re allowed to be used for religious schools — and, for that matter, is it a Free Exercise violation if they aren’t allowed to be used that way.
So it’s not like this is some problematic concession by Ophelia. It’s just a recognition of reality.
Does North Carolina- and do the USA- do as the UK does and separate religious and civic marriage? If they do, then presumably the United Church of Christ can religiously marry together whoever they want without its being any concern of North Carolina, as long as they do not make it a civic marriage.
@4:
For the most part, marriage is a matter of state law in the U.S.
I’m not sure how to answer the question; you’d have to explain to me what it is that the U.K. does.
The Establishment Clause of the First Amendment would preclude any attempt to dictate religious doctrine; they’re only allowed to pass laws regarding marriage because of the legal implications.
There are a few states (according to Wikipedia, Oregon, Nevada, Wisconsin, and Colorado) that allow “civil unions” that offer similar or even identical rights to marriage under that state’s law. Other states used to offer those but have since legalized same-sex marriage.
If by “religiously marry” you mean “hold a ceremony that has religious significance but does not purport to carry any legal rights or significance,” then I agree. And while the North Carolina statute just uses the word “marriage” without making any such distinction, I doubt a court would interpret it as applying to such an instance — I think the clear intent of the statute is not to dictate religious practice, but simply to prevent ministers or magistrates from using the power to perform legal marriages (power that the state has delegated to them) in a way that is inconsistent with how the state defines legal marriage. The inclusion of “magistrates” is a bit of a tip-off, there, if there was any doubt on the point.
It’s similar to how, as I understand it, plenty of Catholics claim to have had their first marriages “annulled” by the Church even though, for civil law purposes, they did not meet the legal standards for annulment and got a civil divorce.
Anyway, this lawsuit seems a little cutesy to me. First of all, the plaintiffs aren’t simply asking for the right to perform ceremonies with purely religious effect — the actual complaint asks the court “To issue a preliminary and permanent injunction against the Defendants and all those acting in concert with them to prohibit enforcement of laws that deprive the Minister Plaintiffs the right to perform such marriages and give them legal effect and directing the Defendants to recognize marriages validly entered into by the Couple Plaintiffs and other same-sex couples.”
So really, this lawsuit is asking for the same relief as pretty much all the other lawsuits in various states have sought. They’re not trying to draw the distinction you are between “religious” and “civil marriage.”
The wrinkle is that they’re trying to dress it up as a matter of religious freedom, and while that’s a nice “gotcha” to conservatives who are disingenuously using that argument for themselves, I don’t think two wrongs make a right: the argument doesn’t become valid just because it’s being invoked by “my” side.
I think it’s pretty clear that the government has a legitimate interest in defining marriage, precisely because of the many legal benefits that governments grant to marriage. The government can’t define marriage in an arbitrary or discriminatory fashion, but it isn’t required to just accept whatever any religion defines it as. Normally I think the “slippery slope” arguments invoked by equality opponents are nonsense — it’s not hard to come up with legitimate nondiscriminatory reasons why the government can limit marriage to two consenting adults — but I’m not sure why it wouldn’t apply to the argument being made by the plaintiffs in this lawsuit.
If the United Church of Christ has the right to decide not only what marriages are valid under its religious doctrines, but to demand that those marriages receive state recognition, then why can’t the Church of Polyamory do the same?
And where do atheists fit in? Do we only get to marry someone of the same sex if we can find a minister to do it? Or can a magistrate do it, and if so, how is that a matter of religious freedom?
I don’t know. It all strikes me as a cute P.R. move, but I’m a little uncomfortable with the soundness of the arguments and their implications.
Well, yeah. And? …
Well if you are going to prohibit say polygamy – even though it explicitly goes against free exercise thereof and to my knowledge doesn’t contradict any other part of the constitution(Assuming consenting adults) then you can’t really complain if Scalia et al. choose to interpret establishment of state religion loosely – no? I would expect you to then side with the conservative judges the next time there is talk of erecting a cross on some government land or showing a Christmas display on some public property , hmm?
So it’s not like this is some problematic concession by Ophelia. It’s just a recognition of reality.
The point is the separation of church and state cannot be the absolute that many people think it is – our side is quite willing to ignore the latter half of the clause as somewhat optional but not the first half. To me that implies that the constitution needs to be amended instead of a we’ll decide which parts needs to be followed.
The second half of the First Amendment was badly worded. It’s absurd. What if “free exercise” of your religion requires you to murder all your neighbors? So, yes, it should be amended, but it won’t be. Instead, court rulings establish some limits.
deepak@6 and Ophelia@7, I think the two of you are missing the point of what a constitution is. Contrary to what Tea Partiers pretend to believe, it’s not a set of pronouncements handed down in stone from the Holy Founding Fathers that answer every question. And it’s not like a statute, where you often want to be as precise as possible and it’s comparatively easy to fix if the wording becomes obsolete or unworkable. A constitution is supposed to be sufficiently flexible to survive changes in technology and culture.
I’d be surprised if any country’s constitution is written as precisely as the two of you seem to want, at least on the “big issues” of personal freedoms. Canada’s Charter of Rights and Freedoms, written in 1982, is just as sweeping and vague:
and Canadian courts have been quite busy since then interpreting what those provisions mean.
I’d be curious to see what either of you think would be a better constitutional provision that has the specificity you seem to crave, but isn’t a dozen pages long.
@screechymonkey
It isnt a matter of interpretation – are you denying that prohibiting polygamy stops free exercise?
I’d be curious to see what either of you think would be a better constitutional provision that has the specificity you seem to crave,
Id just drop the latter half. Anything that is not forbidden is allowed so I dont see a specific reason to say Ill allow you to exercise religion (or collect stamps or comic books) and things that harm people will be forbidden. There will be interpretation but it isnt flat out unconstitutional. You dont want your Constitution to become the same as a bible open to interpretation any which way.
The guys who wrote the Constitution came from a background in which there was no free exercise of religion; instead there was an established church with many privileges, a few Protestant flavors with far fewer privileges, and lots of laws hindering the exercise of Catholicism.