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Pennsylvania Law as a Model for Dealing with Same-Sex Marriage
This is a little on the end of “cart before the horse,” but it’s definitely a predictable direction that legislative action can take in the Commonwealth of Pennsylvania when it comes to dealing with the recent SCOTUS decision on same-sex marriage. Of course, since the ruling, there has been a flurry of commentaries and stories about potential lawsuits against churches that refuse to sanctify these unions. That problem may not play the same in Pennsylvania as it will in most other states.
The commonwealth already has two forms of marriage licenses available in many counties, because our law permits self-uniting marriage licenses. Enjoy the irony if you like, but that is because of a religious belief – Pennsylvania is the Quaker state, and Quakers do not believe that a human being can stand between God and couple when they enter in a covenant of marriage. Their beliefs only permit people to witness that covenant, so we have marriage licenses that only require signatures of two witnesses. Until 2007, it was possible for a county to refuse to issue those licenses without verifying the religious beliefs of the couple, but now they cannot do that. Anyone can opt for the self-uniting license, if they are willing to pay a little more for it.
Because the difference in price isn’t significant (it’s just $10 more in the City of Philadelphia, for example), same-sex couples in Pennsylvania that might want to sue a church over refusing to sanctify a marriage will be a little difficult. If our legislature would happen to change how people get marriage licenses in the first place, those lawsuits would be impossible to start in the first place.
Now, all licenses are acquired at county or city courthouses. If our legislature would decide to change that, there couldn’t be lawsuits over churches refusing to marry anyone for any reason. Four changes to our current laws would need to happen for that to work.
First, self-uniting licenses would need to be available in all counties, and be formally granted equal status with standard marriage licenses. Second, the fees for all marriage licenses would have to be equal in each county. That means the standard license costs would undoubtedly increase, and maybe they would need to stop letting different counties charge different rates. Right now, there still may be a few counties that charge less than the others. The third change would be that standard licenses would be issued by churches, not the counties. Churches would have to pay the fees on behalf of the couples, so the counties would still get the revenue. Finally, for the fourth change, there would need to be an explicit clause in the law that would forbid the state from interfering with the churches when it comes to issuing marriage licenses. That would of course be based on the First Amendment of the U.S. Constitution and the Pennsylvania Constitution’s own prohibitions against the state interfering in religious practice.
Pennsylvania is already part way toward that solution, but there’s nothing saying that other states couldn’t follow suit. The argument against same-sex marriage has been over the sanctity of the union. There is nothing sacred about government, and self-uniting marriage licenses really are just a personal contract by another name — conversely, divorce is simply a legal term for dissolving a specific type of personal contract. The current lie being sold by the left is that the marriage equality movement is all about the legal protections and benefits given to married couples. If the laws of Pennsylvania were changed in this manner, they would have all those legal benefits. The only thing they would be forbidden from doing is forcing any church to sanctify their unions.
It’s time to start having serious talks about how to protect religious freedom, and this is one solution that will be very difficult for the left to call discriminatory, at least as far as the state is concerned. We also need to remember what churches are, and remind the public often. They are religious communities that people choose to join, because they agree with the doctrines they follow. If a person does not agree with the doctrines of a given faith, they are not entitled to force that religious community to change to meet their desires. They are free to find a community that agrees with them.
Published in Law, Marriage
thank you for this information.
OT but related:
A recording artist has put Kennedy’s majority opinion in the SSM case into a song (Morris Albert 1975):
https://www.youtube.com/watch?v=6-oHYYaw9jA
This is generally how I see the issue working out. The civil government will be where couples go for the civil contractual component of marriage. The house of worship (or wherever) is where couples will go for the religious (or whatever) component.
It will be a mess that plays out over the coming decades.
Won’t help the people with a conscientious objection to serving a same sex union though.
Those people who sued the baker or the flower arranger for declining their services weren’t thinking of the States’ means of registering their unions. They were engaging in a scorched-earth strategy of enforcing conformity.
As has been pointed out elsewhere, these are people who cannot take “yes” for an answer, and they are now lining up to take on the last impediment to complete victory: those who take seriously the right to exercise their religious beliefs. As Chief Justice Roberts said in his dissent in Obergefell:
The free exercise of religion does not begin and end on the church steps, and without the ability to live one’s life in accordance with sincerely held religious beliefs, the First Amendment guarantee means nothing. We must regain the culture before we can hope to regain the law. That’s a much heavier lift than changing the way marriages are registered in the county courthouse.
This is a good idea, but the left will figure out some way to scream about it.
I never heard of self-uniting marriages. That sounds like the way to go. Thanks for making us non-Pensy aware of it.
When I was growing up behind the Iron Curtain (Poland), marriage was a two part deal. First, the couple had to be married by the state. There was no way around it.
For only a small fraction of all marriages that was it. The state’s office was the place where the couple’s family and friends went, and after the ceremony they departed to celebrate to the place of their choosing. No religion there!
The vast majority of couples, however, went a different route. They had the smallest possible party at the state’s office, quite often just the witnesses and a few family members. The dress would be formal but modest. After the granting of the license by the state, the couples would go home, change to a more formal for the occasion attire, and head to the church. For them, the church was the place where the actual marriage took place.
Seems to me a sensible solution to render to Cesar what’s Cesar’s and to God what’s God’s.
In France since the post-Revolution days, getting married has involved civil registration. If the couple has a church wedding, I believe the practice is to register with the town clerk on their way from the church to the reception.
Coincidentally, the Catholic Church’s position is like the Quakers’, tho for very different reasons. The Church regards the couple as the ministers of the Sacrament of Marriage. The priest or deacon just witnesses for the Church, and that can be waived; e.g., my wife’s minister officiated at our wedding. This is consistent with the Natural Law paradigm, implicit in the Declaration, that gives primacy to the individual supported by society, from family to band, tribe, to nation.
I think Illiniguy is correct. It isn’t about SSM per se. This is clear when you consider the fundamental fraudulence of the discrimination claim. Black were looked down on, discriminated against, excluded, abused, and assaulted because of skin color. No shopkeeper has ever told a homosexual “You look a little light in your loafers, so I won’t sell sell you this shotgun”. Homosexuals have been refused certain services because of what they do, or more precisely, what they demand others do: affirm and participate in odious immoral acts. The Liberal Fascist gay agenda is to extirpate any demurral from perverted behavior and any recognition of how hilariously absurd are it and the inclination toward it.
I have no objection to official state-recognized Gay Marriage. Government clerks and churches could certify them with Gay Marriage Certificates. Hallmark could sell Happy Gay Marriage Anniversary cards (“Five happy years of promiscuous buggery, but always a place to come home to”). Sure, there would still be merchants who wouldn’t want to bake cakes or do flower arrangements for Gay Marriages, but I suspect there would be fewer.
Thanks, Grendel. That’s what I thought the Catholic teaching was. Interestingly, the Congregationalists (aka: Puritans) held that marriage was a civil affair, and not a sacrament. Hence ministers were not involved in marriages in colonial Massachusetts. And divorce became a matter of breaking a contract.
Every time I see an argument like this I hope that the speaker is mentally testing his assertion against the situation involving Muslim followers of Sharia law. The “ability to live one’s life in accordance with sincerely held religious beliefs” must have some limits imposed by civil law, or else Muslim men are going to be able to marry multiple 13 year old girls. So I ask, where do you draw the line?
I’m confused about how the changes suggested in the OP would immunize churches against lawsuits. The way I see it, churches are either a form of public accommodation, required to serve all comers on a non-discriminatory basis, or they are places of religious observance, entitled to limit their services to believers of their own faith. I’m pretty confident that the courts will find churches to be the latter.
The problem will arise when a church actually does serve all comers, without regard to faith, but denies service to gay couples. This is more likely to arise in the context of something other than performing the actual wedding ceremony. For example, renting out church premises for wedding ceremonies and parties. That kind of activity feels (to me) more like a public accommodation than a religious observance.
The line is drawn where the life, liberty, or property of another human being is threatened. Saying, “No, I don’t want to bake you a cake,” doesn’t rise to that level; sexual exploitation of minors does.