As the time approaches when the US Supreme Court will weigh in with its ruling on same-sex marriage, anticipation is running high on both sides. There are two possible days when the opinion will be released, on this coming Thursday or (more likely) the following Monday, June 29, the last day of the term, although it is always possible that the justices might extend the term if they are finding it hard to finalize their opinions due to sharp disagreements. There are just seven cases where oral arguments were heard and for which no rulings have been given, and those include the Obamacare and the same-sex marriage cases.
Opponents of same-sex marriage have been issuing dire warnings of various kinds of protests, including civil disobedience, if the decision goes against them. What forms these might take are not clear, but could include blocking the offices of registrar offices that issue licenses. But such actions can only be temporary because after a while, even the most passionate opponent will have other things to attend to.
The fact that opponents are running out of steam is already apparent in the response to the Defend Marriage pledge created by some prominent evangelicals including Texas pastor Rick Scarborough and signed by Mike Huckabee, Rick Santorum and others. Despite being launched as far back as in March and with such heavy hitters backing it, only 54,000 people have signed it as of today, which is a pretty poor response by online petition standards.
But opponents are keeping up the fighting rhetoric.
Santorum recently pursued a similar line of reasoning when he told NBC he would fight a court decision which legalised same-sex marriage.
“I don’t advocate civil disobedience,” the former US senator from Pennsylvania said. “I do advocate the role of an informed citizen to try to overturn when a court makes a mistake and gets an issue wrong.”
Likening the case to that of the issue of abortion rights, he added: “Of course I’d fight it. Roe v Wade was decided 30-something years ago [in fact 1973, 42 years ago] and I continue to fight it because the court got it wrong.”
Rick Scarborough, a prominent Baptist pastor in Texas and one of the authors of the pledge, said: “The justices are not always right, and this is clearly a case that finds a right that is not in the constitution, and we will not be able to respect that ruling.”
Scarborough said those who signed the petition would resist all government efforts to require them to accept gay marriage. He said some, including himself, would accept any fine, arrest or even jail time to protect their religious freedom.
“We respectfully warn the supreme court not to cross this line,” he said.
Two states North Carolina and Utah have passed laws allowing state officials to refuse to perform their duties when to comes to marrying same-sex couples, though it is not clear if those will survive court challenges. That kind of measure is also likely to be successful in only a handful of states anyway.
Another of the options being considered by opponents is to pass laws that prevent the state from issuing any marriage licenses at all so that the state will not be in the position of seeming to endorse same-sex marriage. Instead, the state will simply issue civil licenses with all the rights and privileges that married couples currently have. Religious people can then have their own marriage services. In other words, the religious and civil elements of marriage will be disentangled.
This is actually the system that already exists in France.
French law recognises only the civil marriage. This must be performed by a French Civil Authority (officier de l’état civil), which includes the mayor (maire), his legally authorised replacement – the deputy mayor (adjoint) or a city councillor (conseiller municipal).
Religious ceremonies are optional, have no legal status and may only be held after the civil ceremony has taken place (which can, but need not be, on the same day.)
This would avoid what some religious people fear, that since clergy in the US are given the privilege of performing marriages, they might be forced into the position of performing same-sex marriages even if they oppose them.
In the early days of the same-sex marriage debate, there was a split in the LGBT community on the issue of marriage. Some said that marriage was a bourgeois and oppressive institution based on religion and since religious groups were the ones who were so hostile to the gay community, why should gay people want to be part of their institutional structures? Others said that the point was that whatever one might think of marriage as an institution, it was wrong to exclude some people from it, and that they were fighting for the more important principle of equal treatment.
Now that so many mainstream religious groups have come around on the issue of same-sex marriage and acceptance of homosexuality, one rarely hears those arguments anymore.
So going the way of France and creating a purely secular institution that the state sanctions, and allowing religions to add whatever bells and whistles they like that provide no extra legal benefits may be the way of the future and something that advocates and opponents of same-sex marriage can agree upon.
This decoupling of the religious and secular is to be welcomed. The more we get religion out of the public sphere and government, the better.