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Sep 23 2012

Why “religious freedom” arguments about gay marriage fail

This November, Minnesota will vote on an amendment to ban same-sex marriage in the state constitution. Reverend Mark Kuether of the Congregational United Church of Christ recently wrote an opinion piece for the Detroit Lakes Tribune, arguing that religious freedom requires legal recognition of gay marriage. Kuether says:

This amendment would tell clergy who they can and cannot marry in their congregations. Some churches and religious organizations want to recognize the relationships of committed gay and lesbian couples. Some don’t. It should be their choice. However, this amendment does the opposite. It tells religious leaders they are not allowed to marry same-sex couples. Many faiths want to decide for themselves. This amendment represents a one-size fits all government mandate on our state’s churches.

It’s easy to see why this argument is appealing: it takes the usual religious objections to legal gay marriage, and turns them on their head. Instead of claiming that legalizing same-sex marriage would curtail religious freedom, it argues that a ban on same-sex marriage is the real infringement on religious freedom. And it also points out that “religion” is not a monolithic body that’s uniformly opposed to gay marriage, as many religious opponents of gay marriage often like to pretend.

But the religious freedom argument for marriage equality is just as flawed as the religious freedom argument against marriage equality, and for precisely the same reasons. Those who argue against gay marriage on the grounds of religious freedom make the mistake of conflating civil marriage law with religious marital practices. Out of willful or genuine ignorance, they claim that the legalization of same-sex marriage would mean all churches and other religious institutions are now required to perform same-sex wedding ceremonies. This is simply contrary to fact, which is plain to see in every state where same-sex marriage is legal and intolerant religions are still free to conduct only the weddings they want.

Just as with opposite-sex marriage, same-sex marriages under civil law are the kind you get at the city hall or another government office. Its legal aspects are a purely secular matter, and that legal recognition does not oblige any religion to celebrate these marriages. The recognition of opposite-sex marriages in civil law has never meant that a Catholic church is required to let just anyone get married in a cathedral, and same-sex marriage is no different. The people who make this argument don’t seem to understand that you can’t just go to any church, synagogue, mosque or temple, and demand to get married there. In other countries with official state churches whose doctrines are decided by legislators, those churches may be required to solemnize same-sex marriages, but in the United States, the government is entirely unable to tell a religion which marriages and relationships it can and cannot celebrate.

For that reason, the claim that a ban on gay marriage “tells religious leaders they are not allowed to marry same-sex couples” is likewise false. Various religious bodies, including the United Church of Christ, already choose to recognize same-sex marriages and perform same-sex wedding ceremonies as part of their faith. And if they only wanted gay, queer, and otherwise extraordinary couples to get married at their churches, they would be fully within their rights, too. Because civil marriage and religious marriage are completely separate practices, a civil ban on same-sex marriage does not prevent them from doing this.

Conversely, a certain religion’s marital practices are not and should not be used to define the civil marriage laws which apply to everyone. The Catholic church may choose to recognize as valid only those marriages which abide by their specific religious requirements, but that doesn’t mean these are the only marriages that are recognized under civil law. No religion gets to dictate our nation’s civil, secular laws, and they can’t demand that everyone be forced to live under a particular religious doctrine that they may not even believe in. Even if no religion in history approved of same-sex marriages or wanted to perform them, this would be no argument against recognizing same-sex marriages under civil law. And just as we wouldn’t let an anti-gay church define what marriage is for everyone, we also shouldn’t let a pro-gay church define what marriage is for everyone.

Respect for religious freedom does not demand that our civil law must ban all the marriages a religion bans, and allow all the marriages a religion allows. The scope of religious freedom does not extend that far. There are certain faiths that approve of many different kinds of marriages which are not recognized under civil law. Does this mean the state is required to recognize child marriages or multiple marriages just because someone’s religion does? No, just as a racist church that disapproves of interracial marriage cannot impose this rule upon the populace at large. But all of these groups already have the freedom to practice their religious marriages in accordance with their beliefs. And just as the legalization of same-sex marriage does not burden that freedom, neither does banning same-sex marriage.

The claim that legal gay marriage limits religious freedom is a complete non-starter. But so is the idea that its absence poses a similar restriction. There are already plenty of excellent points in favor of same-sex marriage, and no good ones against it so far. We don’t need to rely on arguments that proceed from the same faulty premises, so why pretend religious freedom has anything to do with it?

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  1. 1
    steve84

    That distinction would be much more obvious to people if the US followed continental European customs instead of having the silly marriage license thing. In most of Europe you must have a legal wedding at city hall. You don’t just get a license there, but are legally married. Then you can have an optional church wedding.

    Some South American countries (which took their legal traditions from there) do the same. Britain has a hybrid system where some large religious communities can perform legally valid weddings, but civil officiants are available too – and becoming increasingly popular.

  2. 2
    jessicanaomi

    Tyrannical theocRATs use this non-issue to beg for gay bashing blood money. They KNOW that religious WEDDING RITES have NOTHING to do with LEGAL MARRIAGE RIGHTS. Yet by confusing HOLY MATRIMONY with the 1138 federal and state RIGHTS OF MARRIAGE they get millions from gay bashing cults who are in the business of inciting violence against LGBTI Americans and Africans.

    Since the early 1970s when gay men and lesbians challenged the heterosexist marriage apartheid laws and argued that they had had religious wedding ceremonies, every court ruled that only the state-issued MARRIAGE LICENSE confers these rights. Every court ruled that religious wedding rites are legally irrelevant.

    These tyrannical theocRATS need to shove their kill gays bible down their own throats and choke on it with their Jesus Freak koolaid and keep the hell away from the United States Constitution. Our unalienable rights as human beings and American citizens do not end when the umbilical cord is cut.

    1. 2.1
      The Other Point of View

      First off, my apologies for the theocrats who do behave in the ways you illustrate.

      Second, my apologies for being likewise ignorant.

      Just to put it out there, some of us with religious beliefs used to oppose SSM because we honestly didn’t know better. It doesn’t excuse our ignorance, but many did see it as “they’re forcing same-sex marriage down our throats”, not realizing it’s us forcing our Bible down our other people’s throats.

      But..now some of us know better, and are doing better to ensure everyone’s rights are respected.

  3. 3
    Dalillama, Schmott Guy

    At present, that’s really the only place I can see for ‘atheist chaplains.’ A lot of folks like to have a public ceremony of a type that’s hard to stage in a government office, and don’t want to do it twice. A roving civil officiant would be an ideal solution, something akin to a notary, only who certifies weddings and then files the paper work on behalf of those involved, but as the law stands right now in the U.S., you have to be a religious official to get that privilege. That’s why I’ve got a ULC ordination.

    1. 3.1
      steve84

      That’s what the UK does. There are public places that are licensed for weddings and civil officiants will travel there. So depending on the location, you could have them to travel to a nice castle, a restaurant or a hotel for example.

      In the US, the licensing to officiate a wedding depends on the state. There are places where almost anyone can get permission to perform one. Also, if you search on the internet, you will find plenty of secular officiants. Another good way is too look for an “interfaith celebrant/officiant” – they usually perform secular weddings too.

      1. Dalillama, Schmott Guy

        While it’s true that the requirements vary by stste, AFAICT, all of them call for a religious official of some type. The secular celebrants, like myself, get ordinations online from the Universal Life Church or similar outfits, which exist for no other purpose, and then perform secular ceremonies.

        1. FactWino

          I performed the ceremony at some friends’ wedding in Colorado with no ordination of any type, but I was just a figurehead. The couple solemnized their own marriage, there was no official just the couple and their witnesses.

          1. Dalillama, Schmott Guy

            Is the wedding in question a legally recognized one? If so, who filed the records at the courthouse? Colorado, like the other 49 states, requires that a third party, whether a government official or a religious figure of some type, file the paperwork for it to be legally recognized. If that hasn’t happened, then the state of Colorado (and the Federal Government) don’t recognize that marriage.

          2. DubsCK

            Dalillama – I beg to differ. In the state of Colorado you can solemnize your own vows. Sign your names under bride and groom, then again under participant, and for title, fill in self. They treat us like adults. If you’re old enough to qualify for a marriage license, they don’t require a notarized authority to confirm that really, you do want to get married. (You do have to bring legal ID and swear that you’re doing this of your own free will when you pick up the license, though).

            Source: I’ve been legally married through said method. And yes, I’m sure it was legal, the divorce sure seemed to be official… I could go find the Colorado website to back it up if you really don’t believe me.

          3. DubsCK

            D’oh. Should have previewed…

            Sign your names under bride and groom, and again under “Officiant”, and for “Title ” you fill in “Self ”

          4. Dalillama, Schmott Guy

            @DubsCK
            You’re right. The source I was using previously is a listing of marriage laws by state, and is apparently inaccurate. However, the wedding described by FactWino does technically violate the rules as written. From the Colorado.gov website:

            The marriage ceremony may be performed by

            a judge
            a retired judge
            a magistrate
            any public official authorized to perform marriages
            any person recognized as authorized to perform marriages by
            any religious denomination
            any Indian nation
            any Indian tribe
            the people getting married

            Note: Friends or relatives may only perform the ceremony if they are in the list above.

            (Emphasis mine)

      2. Jonathan M

        @Dalillama

        As someone who lives in Colorado and was also married in Colorado (my wife was living in a midwest state at the time) I can most definitely tell you that my marriage is indeed legal. The “third party” that filed our paperwork was both myself and my wife. If we had wanted to, we could have both signed the paperwork at the courthouse as soon as they gave it to us and turned it right back over to the clerk. The statement concerning “Friends or relatives may only perform the ceremony if they are in the list above” relates only to officiants outside of either the JOP, religious leader, or THE COUPLE THEMSELVES that would lead to the officiant being non-legal.

        http://jeffco.us/rec/recording_T172_R12.htm

        “Marriage SolemnizationMarriages may be solemnized by judges, retired judges, magistrates, Indian tribe officials and clergy, or by the couple themselves. The person solemnizing the marriage must forward the marriage certificate to the County Clerk and Recorder’s office within sixty days after the marriage.”

    2. 3.2
      Am_Sci

      “A roving civil officiant would be an ideal solution, something akin to a notary, only who certifies weddings and then files the paper work on behalf of those involved”

      That sounds like a Justice of the Peace. My friend is one and he marries lots of gay couples.

    3. 3.3
      gravitybear

      That’s not quite true. I was married in a city park by a judge (civil officiant) who performs these ceremonies all the time in various locations, not just at city hall.

  4. 4
    Argle Bargle

    In France, a couple is legally married by a civil functionary (usually a town clerk). If a couple wants a religious ceremony, they have have one but it has no legal status.

  5. 5
    gAytheist

    Zinnia, I mostly agree with what you are saying but if I remember correctly there were some states that truly made it illegal for a church to perform a “marriage” between two people of the same sex. The churches that wanted to do it had to rename the ceremony and call it something like “holy commitment” rather than marriage. So there has been government intrusion on religious freedom with regards to same-sex marriage.

    A few years ago, when Virginia passed its constitutional amendment against same-sex marriage and any type of recognition of same-sex couples that would be similar to marriage (i.e. no domestic partnerships allowed), one of the state legislators submitted a bill that would have made a same-sex marriage in a church a crime (he said it was an attempt to defraud the state) even if there was no attempt to make it a legally recognized marriage/union.

  6. 6
    smrnda

    There are people so badly informed about this issue that they think clergy actually have the legal power to marry people, and that the civil government just keeps track of records – which is exactly the opposite of what actually happens. Though I don’t think people making this ‘religious liberty argument’ are deluded like that, it helps to make people think religion has a bigger role in marriage than it does.

    Also, religious people aren’t good allies in this fight, the way that when some feminists started critiquing some pornography, it was probably unwise to welcome Christian groups into that conversation.

    1. 6.1
      Nepenthe

      Also, religious people aren’t good allies in this fight, the way that when some feminists started critiquing some pornography, it was probably unwise to welcome Christian groups into that conversation.

      Eh. I think that religious people have the potential to be good allies in the SSM fight when their aren’t opposed to secular ones; it’s not like the porn issue, where the concerns and arguments of feminists were diametrically opposed to conservative Christian ones. It’s possible to campaign for SSM on the grounds that, I dunno, Jesus was nice to everyone, which doesn’t particularly conflict with the secular argument that everyone should be equal under the law.

      1. smrnda

        I’m just wary since I prefer public policy to be debated using only secular arguments. If a case is made for gay marriage in the name of religious liberty, it’ll provide ammunition (somehow) to people who want to use religious liberty to piss and shit on people, deny then contraception coverage and things like that. The points of view don’t clash as much as feminist critiques of (some) porn and religious opposition to it, but I still think it could be a bad move.

  7. 7
    Brad

    I like it for taking the dog whistle away from them, but that’s about it.

  8. 8
    gshelley

    In England, under the current SSM proposals, churches will not be allowed to perform SSM, even if they wish to. In that case, I do think religious freedom applies. Otherwise, not so much

  9. 9
    ImaginesABeach

    The religious argument should be that government is favoring one religion over another by recognizing the sacraments of one religion and not the sacraments of the other.

    Of course I don’t think that government should be recognizing the sacraments of any religion. But that’s just me.

  10. 10
    microraptor

    I still have problems figuring out how the Supreme Court, having already ruled that laws preventing interracial marriages were unconstitutional over 40 years ago (Loving v. Virginia, 1967), is still allowing states to pass laws banning same-sex marriages.

    1. 10.1
      Shplane, Spess Alium

      Because homosex is icky.

      1. microraptor

        Of course.

        How silly of me to forget.

  11. 11
    culch

    In 17th-century Plymouth Colony, ministers were prohibited from officiating at weddings, on the grounds that marriage was a secular institution.

  12. 12
    strange gods before me ॐ

    The letter by Mark Kuether which you criticize does not say what you claim it says — nothing Kuether says can seriously be construed as “let[ting] a pro-gay church define what marriage is for everyone.” What Kuether is actually talking about is letting pro-gay religious organizations define what marriage is for themselves, for pro-gay religious organizations.

    You assert that “civil marriage and religious marriage are completely separate practices”. You are absolutely wrong about this.

    This is not a matter of how we should frame arguments, or ideally approach our ideals — this is a matter of fact concerning the actual laws in the state of Minnesota.

    In the state of Minnesota these are the relevant civil laws that govern religious marriage:

    Lawful marriage may be contracted only [...] when the marriage is contracted in the presence of two witnesses and solemnized by one authorized, or whom one or both of the parties in good faith believe to be authorized, so to do.

    517.04 PERSONS AUTHORIZED TO PERFORM MARRIAGES. Marriages may be solemnized throughout the state by an individual who has attained the age of 21 years and is a judge of a court of record, a retired judge of a court of record, a court administrator, a retired court administrator with the approval of the chief judge of the judicial district, a former court commissioner who is employed by the court system or is acting pursuant to an order of the chief judge of the commissioner’s judicial district, the residential school administrators of the Minnesota State Academy for the Deaf and the Minnesota State Academy for the Blind, a licensed or ordained minister of any religious denomination, or by any mode recognized in section 517.18.

    517.05 CREDENTIALS OF MINISTER. Ministers of any religious denomination, before they are authorized to solemnize a marriage, shall file a copy of their credentials of license or ordination or, if their religious denomination does not issue credentials, authority from the minister’s spiritual assembly, with the local registrar of a county in this state, who shall record the same and give a certificate of filing thereof. The place where the credentials are recorded shall be endorsed upon and recorded with each certificate of marriage granted by a minister.

    517.18 MARRIAGE SOLEMNIZATION. Subdivision 1. Friends or Quakers. All marriages solemnized among the people called Friends or Quakers, in the form heretofore practiced and in use in their meetings, shall be valid and not affected by any of the foregoing provisions. The clerk of the meeting in which such marriage is solemnized, within one month after any such marriage, shall deliver a certificate of the same to the local registrar of the county where the marriage took place, under penalty of not more than $100. Such certificate shall be filed and recorded by the court administrator under a like penalty. If such marriage does not take place in such meeting, such certificate shall be signed by the parties and at least six witnesses present, and shall be filed and recorded as above provided under a like penalty.

    Subd. 2. Baha’i. Marriages may be solemnized among members of the Baha’i faith by the chair of an incorporated local Spiritual Assembly of the Baha’is, according to the form and usage of such society.

    Subd. 3. Hindus; Muslims. Marriages may be solemnized among Hindus or Muslims by the person chosen by a local Hindu or Muslim association, according to the form and usage of their respective religions.

    Subd. 4. American Indians. Marriages may be solemnized among American Indians according to the form and usage of their religion by an Indian Mide’ or holy person chosen by the parties to the marriage.

    Similar laws are on the books in many states.

    What this means is that the state of Minnesota grants legal authority to the ministers of some religious denominations, who then act as officiants for the state, performing a power of the state, to perform the marriages which those denominations approve of — while at the same time it withholds that legal authority to act as officiants for the state while performing marriages which other denominations approve of.

    That is religious discrimination.

    That is the civil government’s favoring of one religion’s practices over another, with no rational basis in any legitimate government interest to justify the disparity.

    There are no faulty premises in Kuether’s argument; Kuether deals with reality as it exists today. All the faulty premises are in your argument. You would apparently rather let the perfect be the enemy of the good.

    1. 12.1
      Zinnia Jones

      I appreciate the information about marriage laws pertaining to specific religions, which is something I didn’t address. While this is obviously a related issue, it’s not quite the same as a law specifically instructing religious people on which ceremonies they’re allowed to perform within their institutions in a religious context, which Kuether seemed to claim. It only spells out how this relates to legal recognition of one of those practices – marriage – which is already enshrined in law as a secular practice. This isn’t about letting the perfect be the enemy of the good; it’s about making a claim that simply doesn’t hold true. He was making an argument distinct from yours, and the issues you raised are a problem in their own right, but arguments for the legal equality of LGBT people need to be based on something other than whether certain religions regard them as equal.

      1. strange gods before me ॐ

        it’s not quite the same as a law specifically instructing religious people on which ceremonies they’re allowed to perform within their institutions in a religious context, which Kuether seemed to claim.

        Here’s what exactly Kuether claimed:

        “This amendment would tell clergy who they can and cannot marry in their congregations. [...] It tells religious leaders they are not allowed to marry same-sex couples.”

        He is correct. The amendment would mean that some religious officiants (those of anti-gay denominations) are allowed to perform all the legal marriages their denominations want to recognize, while other religious officiants (those of pro-gay denominations) are not allowed to perform all the legal marriages their denominations want to recognize.

        The fact is that religious organizations are currently granted powers of the state — the power to perform legal marriages — and those powers would be withheld from pro-gay denominations under this amendment.

        It only spells out how this relates to legal recognition of one of those practices – marriage – which is already enshrined in law as a secular practice.

        It’s not simply legal recognition we’re talking about. It is the legal authority granted to certain ministers to act as officiants for the state, just like a judge or court administrator. The minister’s actions are part of what makes the marriage legally binding: “Lawful marriage may be contracted only [...] when the marriage is contracted in the presence of two witnesses and solemnized by one authorized”.

        The state would be prescribing that some religious ministers can act in the capacity of the state to solemnize all the marriages their religion recognizes, while other ministers could not act in the capacity of the state to solemnize all the marriages their religion recognizes — and yes this differential treatment would be happening right there in the church or temple at the time of the religious marriage.

        This isn’t about letting the perfect be the enemy of the good; it’s about making a claim that simply doesn’t hold true. He was making an argument distinct from yours,

        I don’t think so. Nothing I’ve said is incompatible with what he said, and nothing he said is incompatible with what I’ve said. His claims — his actual words, not what you’ve apparently inferred — happen to hold up to scrutiny.

        What he said was incompatible with what you said, though; there was nothing like “let[ting] a pro-gay church define what marriage is for everyone.”

        but arguments for the legal equality of LGBT people need to be based on something other than whether certain religions regard them as equal.

        There are many arguments. Most of them should be secular. This happens to be a legal argument, about legal discrimination against certain religions; it is about where secular law intersects with religious practice, where state power is granted to religious institutions.

        It is in any case a fact-based argument — and even if it were incorrect, other arguments for the legal equality of LGBT people would still stand, so your apparent implication here (that we’re somehow relying on this as a necessary (rather than sufficient) argument) is an erroneous tangent at best.

        1. Zinnia Jones

          The amendment would mean that some religious officiants (those of anti-gay denominations) are allowed to perform all the legal marriages their denominations want to recognize, while other religious officiants (those of pro-gay denominations) are not allowed to perform all the legal marriages their denominations want to recognize.

          If Kuether was using the word “marry” in a religious sense, his claim is false – a civil law banning civil same-sex marriage does not impact which religious rituals faith groups are allowed to hold as a private matter.

          If he was using the word “marry” in a legal, civil sense, then this is not something that specifically singles out religions alone to tell them which marriages they can and cannot solemnize in the eyes of the state. It equally impacts judges, administrators, and other government officials and private individuals who are authorized to solemnize marriages, so depicting it as a specific act of discrimination against pro-LGBT religions is simply misleading. Its impact on religions is incidental, not intentional, much like how a law against murder would affect religions that wish to engage in human sacrifice, but that law does not exist for the purpose of singling out certain religions – it applies equally to everyone.

          so your apparent implication here (that we’re somehow relying on this as a necessary (rather than sufficient) argument) is an erroneous tangent at best.

          For the aforementioned reasons, it’s not even a sufficient argument. That’s why I don’t think it should be relied on at all, by anyone.

  13. 13
    Steve Caldwell

    The “religious freedom” argument for marriage equality is useful for one thing. It’s very good for illustrating the hypocrisy of the conservatives.

    When conservative religious folks complain about how marriage equality infringes on their “freedom of religion,” one can bring up liberal religious groups like the United Church of Christ, Reform Judaism, and Unitarian Universalism who support marriage equality. In states with marriage equality bans for same sex couples, the government is taking sides in a theological debate when they should be remaining neutral with respect to the competing theological claims of religious conservatives and religious liberals absent any compelling secular reasons.

    And religious conservatives are more than happy to ignore this assault on freedom of religion when it doesn’t affect them.

    More on my blog here:
    http://liberalfaith.blogspot.com/2011/06/oh-religious-freedom-is-now-concern-for.html

  14. 14
    aurophobia

    You are quite mistaken. Religious freedom arguments for marriage equality DO work when used on certain audiences. I’ve been volunteering at phone books here in Washington for a while now and I’ve seen first hand how this argument can persuade those who value religious freedom. Is it the best logical argument? Of course not. But this is about changing hearts and minds, not winning a philosophical debate. We should use every tool in our toolbox to persuade voters. Period.

  15. 15
    Adult Gay Cams

    I do not even know how I ended up right here, but I believed this post was once good. I do not know who you are but certainly you’re going to a famous blogger if you happen to are not already. Cheers!

  1. 16
    Around FtB | Pharyngula

    [...] Zinnia Jones suggests that we shouldn’t use religious arguments even in favor of causes we support. [...]

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