How Will Legalizing Gay Marriage Affect the Church?
A Ricochet reader (but not participant -- we're working on getting him to join), asked me to post this question on the effect of the California gay marriage decision and its effects on religions:
We allow gay marriage, and then what?
If the courts create a constitutional right to gay marriage, discrimination of the protected class becomes illegal. Many churches, the Catholic Church for one, will refuse to perform gay weddings, not out of hatred or bigotry, but because of doctrine. For over two thousand the Catholic Church has celebrated marriage as one of its seven sacraments. The Church will not knowingly administer a sacrament when it goes against a fundamental doctrine. A huge crisis is inevitable because there is no middle ground. How will courts choose between the first amendment right to the free exercise of religion for some and the 14th amendment equal protection rights of the other?
My view is that the First Amendment's guarantee of free exercise of religion prohibits the state from forcing religious group to conduct ceremonies that they do not wish to. Should Judge Vaughn Walker's decision ultimately receive the approval of the Supreme Court, gay couples can get a marriage recognized under civil law. But I don't think that requires religious groups to provide or recognize the marriage, if that is part of their religious beliefs. To take divorce as an example, a couple can get a divorce, legally, very easily these days, but that doesn't force the Catholic Church will recognize the divorce or grant the couple an annulment.
But that raises a larger question. I am curious about other Ricochet-er views. Should gay marriage ultimately prevail, what are the possible effects on religion? One could say that it could lead to a decline in religious or moral values -- that seems to be the view of many conservatives. But it might also lead to a rebirth of religious sentiment. Is it possible that Roe v. Wade had that same effect?
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Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
One of the first lessons of contract law is that a contract doesn't mean you promise to do something, it means you promise to do something or pay compensation if you don't. To the extent that people think of marriage as something you can always get out of in exchange for alimony payments, they think of marriage as a mere contract.
Current law seems to me to make the situation even worse: reducing marriage to even less than a contract. In a conventional contract dispute, the law generally seems to encourage the parties to live up to the contract, but in divorce law, it seems to side firmly with whichever party wants to dissolve the marriage. This reduces marriage to a status only slightly above a boyfriend/girlfriend relationship, one which is only expected to persist as long as both parties are enjoying themselves.
May '10
Re: How Will Legalizing Gay Marriage Affect the Church?
I see what y'all mean. My view was indeed idealistic.
And I suppose the government inevitably must define marriage for legal purposes if it is to acknowledge it. In that case, I suppose also that government can redefine marriage to anything voters or judges desire. This is only the legal definition, but legal definitions undoubtedly affect how people perceive the pre-legal act.
Excellent point, Paul.
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
So-called gay marriage is merely one prong of the attack on the Church. Every prong causes critical blood loss. The cumulative effects of all these wounds will hinder the preaching on this issue as well as church discipline. The Church will withstand it, but so many will be seriously harmed along the way. Legal technicalities alone cannot save us. The law is used to bolster what (some) people want anyway, even minority groups as long as they have the “juice”…and cash. This is true especially when all it takes is a single judge to establish new precedent unless overturned. We need to take a hard look at the process of judicial review. We have, for too long, allowed single judges to be able to amplify very weak cultural noise, or at least minority political signals, into significant and onerous shelf-sagging messages.
Edited on Aug 22, 2010 at 2:46pmAug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
David Schmitt
We need to take a hard look at the process of judicial review. We have, for too long, allowed single judges to be able to amplify very weak cultural noise, or at least minority political signals, into significant and onerous shelf-sagging messages.
We've seen in California that overturning judges by amending the constitution doesn't scare them in the slightest; it only makes them angry. In this case, it was the state constitution that was amended, and another judge came along and overturned it at the next level up the chain. Even at the top, when judges show a brazen eagerness to twist the meaning of the constitution, there's little reason to assume they won't twist the meaning of the amended version of the constitution.
The only thing that can strike fear into a judge's heart is the loss of his job. Legislatures that have the power to impeach should assert a definition of "good behavior" as excluding "a pattern of willfully ignoring the intent of the ratifiers", and remove a few of the more egregious violators. Vaughan Walker would be a good place to start.
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
Paul DeRocco
David Schmitt
We need to take a hard look at the process of judicial review. ...
... The only thing that can strike fear into a judge's heart is the loss of his job....
Great idea, if it can be done. Could we not make the whole process of striking down laws, and especially amendments, subject to automatic, immediate review by a (large) panel of judges requiring unanimity or at least a supermajority? I actually respect attorneys (despite loving that catfish joke), but I fear that this class is so absorbed with their own prowess in technical legal maneuvering, that they believe that all matters (philosophy, culture, aesthetics, history, biology, theology, physics, engineering—to name several) are reducible to legal questions. Two composers may engage in dispute about who wrote a tune first and they may go to a judge for relief, but that doesn’t necessarily mean that judge can play an oboe. My hope is that a panel of judges—by a law of central tendency--may have some built-in attraction to a point of rationality.
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
Prof. Yoo: The ball is in your court. Particularly, I would like to hear your take on the concept of the Civil Fiction, and admitting it for discussion, my proposition that judicial activism in establishing the legitimacy of gay marriage will undermine the Civil Fiction with dire consequences. A philosopher friend of mine told me a few days ago, after hearing this, that Alasdair MacIntyre has an analysis with at least tangential points to this notion. So, I think it is possible--at least--that I have hit upon a serious subject worth discussing. Indeed, I would say this is particularly relevant to California, and for the nation, at present. I employed an analogy of four men in the rowboat, with the Civil Fiction having preserved peace among the three with their life vests of religion as they await rescue. Now the fourth, a self-styled secularist (were secularism truly a substantive thing with which to be identified), is threatening that peace. Guess who sinks first. And those sharks in the troubled ocean may not eat pork, but there “ain’t no” dietary restrictions against “secularists."
Edited on Aug 22, 2010 at 6:35pmAug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
David Schmitt
Great idea, if it can be done. Could we not make the whole process of striking down laws, and especially amendments, subject to automatic, immediate review by a (large) panel of judges requiring unanimity or at least a supermajority?
My instinct doesn't tell me that convening large panels of judges will produce systematically better results, because what has mutated judicial review into something opressive is a shift in the judicial and legal culture, not some detail of the structure of the judiciary.
What I seek is some means to break that culture. It developed over the past fifty years through a long series of tentative testing of the waters of activism, where each minor extension of judicial power didn't result in the judge being struck down by a thunderbolt from above. Impeachment is that thunderbolt.
What if Congress passed a law saying, "The Constitution, deriving its legitimacy from the political consensus represented by its ratifiers, has no supremacy except when interpreted in a manner consistent with the understanding of those ratifiers. A pattern of willful disregard for this principle shall be considered bad behavior in a judge, and an impeachable offence." ...and then acted on it?
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
Paul, sorry for the delay. Well, I am all for it, but Americans are so hesitant to impeach. We like our system to dampen turbulence. You would have to create the political will for impeachment, but then political will--as we see on many fronts--does not seem to express itself effectively through traditional procedural channels. We need to amplify the force of the minority, that 20% of smart, zealous cultural revolutionaries that is all that is ever required to change the game. The Left has exploited this successfully for many decades. Here's an idea--just to brainstorm wildly: Could we create mirror, fictive "courts" to intellectually taunt Leftist, judicial aggression (let’s quit merely calling it “activism”). I imagine energetic lawyers and law students paralleling each judicial office, or Circuit Court at least, with a parallel opinion. So, not just folks commenting on the decided judicial decisions, which already cedes the victory before beginning; but an assertive counter-modeled "opinion" that allows us to “Envision Rationality.”
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
David Schmitt
Well, I am all for it, but Americans are so hesitant to impeach. We like our system to dampen turbulence. You would have to create the political will for impeachment...
Well, it shouldn't be easy to impeach, but currently I don't think there are very many people who even think we could impeach over the content of judicial decisions, other than those that are bought with bribes. If we staked a claim that we could do such a thing, then people would begin to ask, every time we get a Judge Walker-like decision, "Is this the appropriate time to use this law?"
Sort of like mock court? Sounds like a good thing for a college campus--could have some effect on what sort of opinions are considered "cool". I can't see it out in the world of adults, though.
Aug '10
Re: How Will Legalizing Gay Marriage Affect the Church?
Paul DeRocco:
Sort of like mock court? Sounds like a good thing for a college campus--could have some effect on what sort of opinions are considered "cool". I can't see it out in the world of adults, though. · Aug 27 at 7:39pm
Changing what is "cool," is well put. "Envisioning rationality" recognizes that in order to bring something into being, it must first be partly realized in storyboard form. I intentionally mimicked the "Envision [whatever]" bumpersticker. Some things Lefties are clever about. This device capitalizes on a generally, but not necessarily, pre-adult openness to creativity. It is not that creativity and adulthood are antithetical: it is just that too many adults, regrettably, surrender this quality. One could envision (see!) such parallel courts as being unofficial competition for the established courts. Ready-made alternative solutions--assembled into formidable bodies of case-tested jurisprudence, "decisions" and "precedent," waiting in the wings--would surely give the opposition considerable pause. They would know that threshold changes in the culture towards rationality and justice could definitively replace the Leftist paradigm. They would eventually have to engage "adult" thought from the fictive courts. We win piecemeal until the revolutionary change occurs.