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Same-sex marriage and religious liberty, continued

Since the controversy about (and subsequent veto of) Arizona's SB 1062, a pointed debate in newspapers and blogs has ensued about civil rights vs. religious liberty.  Ross Douthat's New York Times column expressed frustration that religious dissenters are not being permitted to "negotiate terms of surrender" in a culture "war."

What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.

But is this best construed as a war, or does a less threatening metaphor suffice? Perhaps we're not fighting an apocalyptic war of religion vs. secularism, but instead tinkering with our delicate balance of Constitutional rights.

In a follow-up post, Douthat implores certain advocates for gay rights who also strongly support religious liberty, such as Andrew Sullivan, to speak more loudly in defense of religious conscience protections.

Meanwhile, Sullivan and Rod Dreher got into an uncharacteristically testy exchange about whether the new status of Christian orthodoxy entails minority status, with dissent that gets "demonized."

What is certain is that public opinion on gay marriage has changed faster than on any other moral issue in the history of public opinion polling. It is no surprise that laws have been hastily proposed and tempers have flared. Things really are changing faster on this issue than even the most ardent supporters (e.g., Sullivan) had envisioned. For this reason, after the Arizona law was vetoed, he wrote:

If we value our freedom as gay people in living our lives the way we wish, we should defend that same freedom to sincere religious believers and also, yes, to bigots and haters. You do not conquer intolerance with intolerance. As a gay Christian, I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort. ... We’re living in a time of drastic change with respect to homosexuality. It is perfectly understandable that many traditional-minded people, especially in the older age brackets, are disconcerted, upset and confused. So give them some space; instead of suing them, talk to them. Try seeing things from their point of view. Appeal to their better nature as Christians.

I've followed these conversations with great interest, and I'm convinced they need not deteriorate into a culture "war" with winners and losers, as Douthat's and Dreher's writings suggest. Is it possible to find a middle ground of accommodation?

In today's Washington Post, I have an op-ed that explores just that question. Thus far in the debates, both the civil rights side and the religious liberty side have joined together different kinds of wedding vendors (cake bakers, florists, photographers) into one group. But perhaps finer distinctions among different kinds or degrees of engagement with an event are necessary in this new moment for American pluralism. Some of these vendors don't attend the event, some do; some don't help plan it, some do; some of the events are enacted under civil law only, some are richly religious ceremonies.

As I say in the article, "We may need more reflection on what the law could force a citizen to do at a wedding or other religious ritual." In a country of almost unfathomable diversity -- one with strong anti-discrimination and religious liberty traditions -- the fine-tuning process is worth the effort.

Drawing distinctions to maintain a precise balance of religious conscience protections and publicly accommodated civil rights is neither a sign of fastidious hairsplitting nor a distraction from prophetically proclaimed truths on either side. Rather, it is necessary to preserve and perfect our experiment in diversity.

The editors gave the print edition the snappy title, "Many layers in the gay-wedding cake." But if you don't have access to the newsprint, a digital version (under a different title) is here.



Commenting Guidelines

Ryan --


You seem to think that people are a lot more rational than the expert Daniel Kahnemann does.  Read "Thiking: Fast and Slow".  Fascinating. As an old logic teacher I can assure you that it was quite evident to me before that book that people  need help in using logic and in looking at our own presuppositions.  I dare say that most of the logic teachers of the last 2300 years would agree -- except for those who are congenitally incapable of handling linguistic fallacies very well.  We are often wrong automatically due to unconscious psychological processes -- it's part of human nature, and we (including you) aren't even aware of the possibility that that is happening.


Does that mean we should all be skeptics?  No, but we should all be critical of both others' AND our own presuppositions and logic. 

Mark Logsdon, assuming that you are not in frequent contact with the friend you can decline without specifying a reason.  Only if he calls you are you faced with this dilemma.  Then you can tell him directly why, whatever your reasons are. 

Ann, although not without limits or ethical tensions, you might decline a representation because you truly believe you can't do an adequate job of advocating a position.  Lawyers have to decline representations where they have an actual or appearance of conflict.  This kind of conflict and its ethical dimensions has been widely discussed.  Most lawyers -- especially criminal lawyers -- believe stronly in the principle that whatever crime you are accused of, the government has to prove that you are guilty.  Criminal lawyers are quite used to representing people they don't like and would not want to emulate or even meet on the street.



I think I can understand the mechanics of saying No. Not a all diffcult as long as on is willing to be hurtful to a friend.  We just thank God that we are not like them, and pass by on the other side of the road.

But where in the Sacred Writings do we see Jesus do this?

Mark L

I wrote,

The difference, it seems to me, is that an African American is a person, but a same sex marriage isn't a person - it's a thing.

... to which  Ryan commented,  

this would imply that refusing to serve an interacial couple would be okay because one is discriminating against their marriage rather than the persons. Would you agree with this?"

That's an interesting parallel.   Remember: we're talking specifically about religious/conscientious objections.  Refusing to collaborate in an interracial wedding for racist motives doesn't strike me as the same kind of thing.

Are there many real, actual people who would raise a specifically religious objection to collaborating in an interracial wedding, e.g. the Bob Jones people?  I'm not completely sure if that is what Bob Jones U objects to (I thought their bugaboo was interracial dating on-campus?), nor how they've fared in court (I think the answer is, Not well).  I know that the Supreme Court was skeptical of the claim that the use of peyote is a religiously protected act.  I'm not sure how the Court sorts out religious exemptions.  Does the Court accord more religious-exemption sympathy to beliefs held by mainstream religions like Catholicism, Orthodoxy, and Evangelical Christianity, (and, I believe, Orthodox Judaism and Islam) than it does to religions that use peyote as a spiritual stimulant?  I'm not sure.  .

[Saletan] focuses mainly on suggesting that Vanessa Willock's refusal to serve a gay couple wasn't based in hatred for the couple. Ultimately, I don't care whether she is motivated by hate or not. The discrimination is wrong regardless of the motivation.

That's an interesting approach, but it seems that legally, the motivations are key.   Here is Saletan:

the New Mexico Human Rights Commission ... found Huguenin guilty of discrimination: “Ms. Willock thought that Ms. Elaine Huguenin's response was an expression of hatred.” [Saletan is quoting here from the Commission's ruling]

In fact, it's not really even the vendor's motives that seems to be key here; it's the same sex couple's *perception* of the vendor's motives.  I doubt I would be alone in being concerned that another party's perception of a vendor's motives can be the basis for imposing onerous legal punishment upon the vendor.


About the wedding cakes --


Consider this hypothetical:  What if the spouses insisted on having a Bruce-and-Bruce statuette placed on top of the cake? 


 It seems to me that there would be three constitutional issues involved:  1) the equal protection clause making the marriage legal for gays, 2) the religious freedom clause protecting the baker who doesn't want to participate in a process that violates his religious principles, and 3) the free speech right of the baker to not-say-I-approve-of-their-action. 


 What this case makes crystal clear is that that the baker and the spouses actually have *conflicting* constitutional rights.  However, many people don't want to admit that the Constitution itself is not a perfect system -- we can indeed get inconsistent directives from it.  So what to do, what to do?  The disparate rights must somehow be weighed against each other.


If the baker had to place the statuette on the cake even though he *says* nothing explicitly, that could be interpreted as *showing* his  approval of the marriage.  But even though it *might* be interpreted that way, it also might *not* be so interpreted, so that clouds the facts of the case.   So is his right not-to-approve so clear and weighty that it would outweigh the spouses right to buy such a wedding cake in the first place?  (Such a wedding cake is not part of their religious ritual.)  


So HOW does one weigh one right against the other?  I haven't any idea how to weigh these claims.  But all is not lost.  Sometimes the courts can by-pass the necessity to make such judgments.  In this country it is also clear that in most cases one baker's refusal to make such a cake does NOT prevent the spouses from exercising their right to have such a cake -- there are always other bakers (unless you're in the wilds of Alaska in February?).  It seems to me that this fact makes a lot of us think, OK, you want a cake with Bruce and Bruce, make another phone call to a different baker.  What I'm saying is that this particular case is a clash of two relatively minor issues and it can be solved easily with another phone call. 


Is that absolutely fair to the spouses?  No, it's not.  It will cost them at least one phone call.  But I think making the baker violate his conscience (no matter how obnoxious his conscience) would do more harm to the State.  Why?  Because it is in most cases overwhelmingly to the advantage of the State to have citizens who follow their consciences (e.g., not to lie, cheat, rob, etc., etc., etc., etc. . . .) -- and that includes bakers whose consciences preclude making certain cakes and gay spouses whose consciences tell them "We ought to get married".  Their *rights* to their consciences  should be respected (if not the content of their consciences), even when the majority of the citizens disagrees with one or the other side. 


The Constitution does not promise that we shall all like each other or all approve of each others' consciences.  That's the cost of diversity.

Jim Pauwels,

Forty years ago, people were arguing that integration and interacial marriage were religious/conscientious objections. It has since become unacceptable to make this argument, and even Bob Jones University dropped its objections to interacial dating in 2000. However, people were making arguments that are indistinguishable from those being made today: they had a religious objection to doing business with certain groups of people and punishing them for refusing to do so would infringe their religious liberty. The courts aren't capable of distinguishing supposed legitimate non-hateful religious motivations to discriminate and bigotry, and asking them to try to do so would be a massive meddling of government in religion.

The commission noted that the couple considered her refusal hateful. The law reads:

any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

It does not mention hate as a necessary component. A person who offers services to the public and refuses service on the basis of sexual orientation has violated the law.

Ann Olivier,

I don't think humans are that rational, which is part of my point. People who jump from Premise A to Conclusion B due to their prejudice rather than a logical argument isn't just following the implications of Premise A. Rather than objecting that they don't feel like they are acting in a hateful manner, they should reflect on whether they can reach Conclusion B from Premise A without relying on their potentially biased intuitions.

Jim Pauwels,

Thanks for your contribution to this thread. I don't understand why it is so hard to get agreement on some basic points, like:

1. freedom of conscience is a fundamental human right, certianly in this country

2. most of us are very tolerant of others, and have no interest--for example--in preventing homosexuals from doing whatever sexual acts they want to do in private

3. that many will, and do, find same sex acts to be distasteful and would prefer that those who want to do them keep that to themselves

4. that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested.

5. That #4 is neigher just nor charitable.

6. That "straights" are now largely asking to be left alone, but often to no avail.


Bill Murphy,

If I find your argument distasteful, does that create an obligation for you to not comment?

that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested."

"display same sex behavior in public."

What, pray tell, is same sex behavior? I know tons of people in same sex relationships, and I'm thinking of the behaviors they exhibit in public, and trying to figure out how they differ from behaviors I exhibit in public. 

that many will, and do, find same sex acts to be distasteful and would prefer that those who want to do them keep that to themselves. 

And here we are: it's not that people who are icked out by gays are being persecuted, it's that they're being discomforted. They are not persecuted; they are having to deal with the fact that they are slightly less privileged than they used to be. 




I mean, really:

"display same sex behavior in public."

Good grief.

Ann, no one is telling bakers that they have to purchase or stock statuettes they don't want to use, for whatever reason.  So this isn't some big moral dilemma for the baker.  They say, "gosh, we don't have those in stock so I'll have to order it or you can buy it and give it to me to place on the cake or do it yourself." 

Also, friend's mom was a baker and you wouldn't believe what kind of compromising cakes bakers are asked to try to figure out how to make.  Think bachelor's party and jock celebration kind of stuff.  Most just shrug and get on with it.  It's a cake for heaven's sake.

Mark, a long-time but casual friend of my husband's started posting things on Facebook that I found distasteful (and maybe offensive).  So I blocked her posts from showing up without saying anything.  Am I a bad friend?  Why or why not?

What facts about the subject matter of her posts would be relevant to your determination of whether I should (a) keep reading them anyway; (b) tell her what I did and why or (c) do exactly as I did.?

I'm not telling you not to go to the wedding, I'm just saying you don't have to because, surely we deserve some agency in these kinds of matters.


Barbara --

My statuette case was just a hypothetical to illustrate certain points.  But I don't doubt that for some radically unhappy people the statuette could symbolize all that they dislike about gay culture, and somebody like that might feel it's the last straw and make a stink about having to cater a cake for a gay wedding. 

Bill Murphy, thanks for your kind words to me.  Regarding this:

4. that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested.

I assume by "the many who find [same sex behavior] offensive", you're referring to the people in our society (presumably it's a large number) who personally find open displays of same sex affection to be repugnant.  (1) I don't think that's precisely in-scope for this discussion; at least on my part, I've been talking about the very narrow, small and specific groups of professionals who are wedding vendors: photographers, wedding planners, florists, et al; (2) "find offensive" suggests the "ick" reaction that one or two other commenters have already noted.  It's important to make a distinction between that reaction and the objection that is being made by the vendors who have been sued: objecting to collaborating in these weddings is a *religious* objection.  The religious objection should be kept separate from any personal abhorrence that may be felt.

I assume that most of us here have been around the block a few times.  We all understand that it is the "ick factor" that drives people's emotional reaction to these cases: people who think same-sex behavior is icky want to be able to say "ick" and don't want the government or gay activists to tell them that they can't say "ick" anymore; LGBTs want the freedom to be themselves without having to hear others say "ick", and evidently some of them would like to be able to bring the power of government to bear to punish those who say "ick".  

The religious objection doesn't depend on "ick".  The only thing it depends on is, "my faith forbids me from collaborating in this social arrangement because my faith tells me it is sinful."  It's not difficult to think of other arrangements and acts that almost nobody finds repugnant - that most of us find incredibly tempting - but which our faith tells us we shouldn't collaborate in.  People who raise the religious objection are asking the government not to force them to violate the tenets of their faith.  "Ick" is irrelevant.


So this is entirely about hating the idea of personal interaction with a gay person, right? The examples are almost all hypothetical small business owners who service weddings. I guess market makers "surrendered" long ago, being required to buy and sell stocks so that the exchange remains open.

Minor point about what is art: Many museums have collections of photographs because they are appreciated as artworks.  Some even have collections of costumes.  But I've never heard of a museum's collecting wedding cakes.  The cakes are sometimes said to be "works ofart", but the value of such artworks are not the sort that society as a whole consiers valuable enough to preserve. 

Museums are primarily for permanent, visual arts.  There is a visually artistic aspect to serious food, and certainly to a wedding cake, but food isn't permanent - it's got a short shelf-life.  Nevertheless, there is an artistic, or at least a artisanal, aspect to something like a wedding cake.  

Your comment caused me to reflect that musicians for whom weddings are an important source of income (live music-making is another art that is primarily neither visual or permanent) - could also lack the right to decline to provide their craft to a same sex wedding ceremony or reception for conscience or religious reasons.


Also, friend's mom was a baker and you wouldn't believe what kind of compromising cakes bakers are asked to try to figure out how to make.  Think bachelor's party and jock celebration kind of stuff.  Most just shrug and get on with it.  It's a cake for heaven's sake

Barbara - I'm sure you're right that most "just shrug and get on with it".  I daresay there are bakers out there who might find a same sex wedding objectionable who would nevertheless just shrug and make an excellent cake for the couple anyway.  But the occasional baker who is not like most, and genuinely believes that she can't in good conscience make this couple a cake  - that's the person who arguably needs to be protected from legal complaints and lawsuits.  

Also, I don't share your confidence that a two-male or two-female caketopper will always be amicably negotiated.  It would seem to be a necessary part of the product under offer.  


Jim P. --

About music not being a permanent art -- Paul Elie has a new book, "Reinventing Bach", which shows how the recording of music using new technologies (which makes some performances permanent) has changed the performances and has even inspired new sorts of music.  I could understand a couple wanting to have the actual music of their wedding recorded, similarly to photographing it. 

By the way, I find Elie's blog, Everything that Rises, particularly interesting.  It's about all sorts of important stuff like the arts, politics, religion.  He's the author who at a very young age wrote "The Life You Save Might Be Your Own".  Wise beyond his years, and then some.

Everything That Rises

Ann, thanks - that does look like a quite interesting blog, and I will try to include it in my rounds.  Plus, I strongly suspect he showed the great good sense to quote you in a recent post :-)

Ann, regarding the recording of music - you're right that a recording does, at least to some extent, encase in amber what was originally a rather transient experience.  I say "to some extent" because I believe that we can experience the same recording differently at different times and in different situations.  A recorded piece may move us tremendously the first time we hear it, but we may find it  difficult or impossible to recapture that emotional "magic" on subsequent hearings.  Or a new recording may strike us as rather uninteresting at first, but it may grow on us with repeated hearings.

In the old days, when sheet music was the primary commercial medium for popular songs, the whole process for consuming music was a bit different: the consumer might hear the tune on the radio, on the stage or in a movie theater, but in purchasing the sheet music, the consumer also became, by necessity, a producer, because someone had to sit down at the piano and plunk out the song in order to experience the music.  Jazz, which would start with a standard popular tune, frequently composed by someone else (the "sheet music"), and then transform it via arrangement and improvisation, pushed this consumer/producer dynamic pretty far.  

Of course, nowadays, when a specific performance is recorded and distributed, the dynamic of musical consumption is a good deal more passive.  Every single note and tempo and contrast is the same, every time.  Recording artists nowadays are known to lip-sync the recording at their concerts, rather than recreate the piece afresh.  It's become the exact opposite of the spirit of jazz, which prizes newness and re-creation. (My reaction to a lip-sync'd concert performance would be, "I paid $175 for this?  It's already on my iPod.")

 Weddings happen to be events in which the live and transient nature of music is still honored, both in the church and (at least when a band is hired) at the reception.

Sorry, I know this is a big digression.


Several days ago now, Mark Logsdon made an interesting comment that, for whatever reason, hasn't spurred additional conversation so far but which I found thought-provoking:

We went off the tracks in ever allowing a Christian sacrament to have the authority of the State.  We get on quite well leaving baptism to the traditions of our various churches (if any), and services for the dead, also. 

I just want to note that on First Things' blog today, the editors asked eight writers, most of them scholars or clergy, to answer this question: With the legal affirmation of same-sex marriage in some states, should churches, synagogues, and mosques stop performing civil marriages?  The eight responses are here, for anyone interested:


Jim Pauwels,

Thanks for linking the First Things material.   The contributions are intersting.

I was - though perhaps I should not have been - surprised that the person closest to my thinking as I wrote the initial comment is the Orthodox specialist.  If, as seems the case, the concern is that the non-Believers of the State and society will control our beliefs, then the experience of the Othodox under Islam and Jews under both Islam and Chistianity have a basis that we would probaly wish to consider. 

Does anyone reading here believe that the ability of the Christian Church to speak Truth to Power on marriage (or other issues) depends on civil sanction of weddings conducted in churches?

Mark L.


I assume the purpose of marriage is to celebrate Love [between the spouses, as between God and His Creation, including the two who are to be married]. I am not sure what all the purposes of exchanges on social media may be, but I am pretty sure they are not of that order of signifigance.

I completely agree that I have the agency to stay away.  And the Earth will continue to rotate on its axis if I do.   But my world would  not be the same, poorer by virtue of *my* understanding of the judgment I made.

There never was an issue of my not going.   My question was for those opposed to SSM: where does agape point us?

Mark L


Jim Pauwels,

Thanks for the link.

  • Ryan T. Anderson focuses on the possibility of a church being forced to perform same-sex marriages, which is a straw man. No church is required to marry anyone, even in cases where a business open to the public would be required to serve.
  • Vigen Guroian desires that there be no separation between the state and the Orthodox Church. However, his familiarity with living as the minority religion allows him to aquiess to the idea of separating what the state does and what the church does.
  • Russell D. Moore understands that legally solemnizing a marriage doesn't represent an endorsement of the state's definition of marriage. On the contrary, they are able to express an alternative definition of marriage via their choices of what marriages to solemnize.
  • Francesca Aran Murphy goes beyond Anderson's strawman to raise the possibility that views may soon be criminalized.
  • David Novak's commentary focuses on Canada, which makes it harder for me whether the threat of legal compulsion is a likely scenario. To answer his question about polygamy, because marriage no longer involves the wive's identity being legally subsumed into her husband's, polygamy would have to be a relationship between three or more equal persons rather than one person absorbing multiple others. Establishing the mechanisms for handing a polygamous is much more difficult than removing "one man and one woman" from an otherwise sex-neutral legal system.
  • Edward Peters seems to be confused about what the question at hand (whether clergy should stop legally solemnizing marriages) is. He makes a distinction between the Catholic understanding of matrimony and the Catholic understanding of civil marriage without acknowledging that people can make a distinction between the Catholic understanding of natural marriage and how civil authorities define civil marriage.
  • Ephraim Radner believes that the Church should continue to bless those marriages that meet its requirements becausing doing so furthers the good of marriage.
  • Eric Teetsel proproses creating a curriculum to train people on a wide range of issues related marriage to help combat divorce and have clergy refuse to marry people who have not completed this course. I appreciate his focus on divorce, which has tangible negative effects, as well as the voluntary nature of his proposal.

NCR points out that the photographers have dropped the Religious Freedom part of their claim:


In asking the nation's highest court to hear the case, Huguenin and her husband, Jonathan, dropped their religious freedom claim and are focusing solely on free speech -- in this case, the freedom not to photograph same-sex ceremonies.


That sets the case apart from legislative efforts in some states to carve religious exemptions to anti-discrimination statutes. The Huguenins' lawyers and supporters don't contend that businesses such as restaurants and hotels can refuse to serve gays and lesbians. A measure that could have had that effect was vetoed in Arizona last month by Gov. Jan Brewer.


Their argument is that professionals whose work is by nature expressive -- such as writers, advertisers and website designers -- should not have to apply their artistic talents to subjects on which they disagree.


One of the arguments is that the US Supreme Court decided that New Hampshire drivers couldn't be compelled to display the State motto "Live free or Die" on their license plates if they disagreed with it. 


Here, as in Barnette*, we are faced with a state measure which forces an individual, as part of his daily life - indeed constantly while his automobile is in public view - to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." 


New Hampshire's statute in effect requires that appellees use their private property as a "mobile billboard" for the State's ideological message - or suffer a penalty, as Maynard already has. As a condition to driving an automobile - a virtual necessity for most Americans - the Maynards must display "Live Free or Die" to hundreds of people each day. The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.


*Barnette was the case that decided that students couldn't be required to salute the flag. 


The State Supreme Court said that the photographers weren't being forced to endorse a point of view they opposed because they were free to say in signs in their shop and in advertisements that they oppose same-sex marriage and make cakes for same-sex marriages only because it is required by state law. 


Similarly, the minority on the US Supreme Court took the view that displaying a state issued license plate wasn't speech and that "appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto."


So, if the US Supreme Court agrees to hear the case (they aren't required to), a question will be whether making photographs of a wedding is "speech" 


I will shut off auto-correct on my new iPad

Ryan - re: Edward Peters' response: I thought it was the most interesting of the eight. His main contention seems to be that it's not the church that ever decided to be in the civil-marriage business in the first place; it was the state that decided that weddings performed in churches would be recognized by the state as well.  The church, in his view, lacks the authority to tell the state whether or not the weddings the church officiates should also be recognized by the state. Only the state can determine what it recognizes.  Thus, in Peters' view the question is poorly phrased, or perhaps is founded on a flawed premise.  As I say, it's an interesting take on the question.

Several of the respondents voice an analogous caution regarding first-amendment protections for religious exemptions for clergy: those protections hold only insofar as the state agrees that they hold.  Apparently, several of the respondents no longer trust the state to maintain those exemptions.  

Istm that this could actually play out in real life along those lines: a same sex couple (or several same sex couples in different jurisdictions) would accuse churches of being discriminatory for refusing to perform same sex marriages.  Some legislatures and/or judges would agree.  The legislatures' and/or judges' remedy would be to strip away the clergy's civil-marriage faculties.

Couples who wish to be married in church already go to the state first, to obtain a marriage license.  In the future, couples would do the same thing, but they may also make one extra visit, to a judge's chambers, for the civil wedding.  Possibly the church's presiding minister wouldn't officiate at the couple's wedding unless they can show that they're already civilly married, i,e. the proof-of-civil-marriage requirement would replace the proof-of-marriage-license requirement.


Couples who wish to be married in church already go to the state first, to obtain a marriage license.  In the future, couples would do the same thing, but they may also make one extra visit, to a judge's chambers, for the civil wedding.  Possibly the church's presiding minister wouldn't officiate at the couple's wedding unless they can show that they're already civilly married, i,e. the proof-of-civil-marriage requirement would replace the proof-of-marriage-license requirement.

Some countries (France, etc) have done that for a long time and the Church doesn't seem to have a problem with it.

In the US, the couple first get a marriage license from the state and take it to a priest or deacon, who performs the marriage liturgy. The priest or deacon records the marriage in the church register, but the state only recognizes the marriage if the priest or deacon is authorized by the state to perform [civil] marriage ceremonies, signs the wedding license, and returns it to the city or town clerk. 

In Massachusetts, that authorization has to be renewed each year. In the unlikely event that the state proposed to require Catholic priests and deacons to perform same sex [civil] marriages, I assume that the Church would stop filing requests for annual renewals and would go out of the civil marriage business.

As of January 1, 2004, all churches and religious organizations must file ANNUALLY information relating to persons recognized or licensed by that entity and information relating to the “usages” of that organization.

Upon receipt of the above information, this office will consider the individual duly recorded to perform marriage ceremonies within the Commonwealth of Massachusetts.

John - that's interesting.  My state (Illinois) has never asked me personally to renew my autorization; I assume it's handled at a diocesan level.

I'd guess that the process you outlined probably is quite similar to what happened with Catholic Charities in Illinois got out of the foster care business, and when the Church got out of the adoption business in MA.



Edward Peters wrote It is not clear, therefore, exactly how religious institutions could unilaterally withhold civil recognition of their wedding rites any more than they could compel civil recognition of their rites by states unwilling to grant it

Any diocese could announce that it's priests and deacons were no longer authorized to sign wedding licenses to be returned to the government to be recorded in state records.

The Sacrament of Matrimony would be performed only after a couple had contracted a civil marriage and presented proof of that to the priest or deacon. That sacrament would be recorded only in the parish registers, like any other sacrament, and would not be reported to the state. 

In the eyes of the Church, the couple would not be married until the Sacrament was performed. 

I suppose the political problem with this from the Bishops' standpoint is that it acknowledges that it's possible for people to distinguish between sacramental marriage and civil marriage. 

Jim Pauwels,

Several of the respondents voice an analogous caution regarding first-amendment protections for religious exemptions for clergy: those protections hold only insofar as the state agrees that they hold.  Apparently, several of the respondents no longer trust the state to maintain those exemptions.  

Istm that this could actually play out in real life along those lines: a same sex couple (or several same sex couples in different jurisdictions) would accuse churches of being discriminatory for refusing to perform same sex marriages.  Some legislatures and/or judges would agree.  The legislatures' and/or judges' remedy would be to strip away the clergy's civil-marriage faculties.

I see no evidence of that our existing First Amendment framework is in danger. The issue of discriminating against gays and lesbians and their marriages is playing out in the same way that discrimination on the basis of other protected qualities have played out: public accomodations have to accomodate the public while religious bodies have broad discretion. I don't see this changing. If a religious school can discriminate against a teacher with a disability, I don't see how a gay couple trying to force a church to marry them will get more sympathy.

Because of this, I consider those who publicly fret about the possibility of a church being forced to perform same sex marriages to be at best gravely misinformed and at worst intentionally bearing false witness in order to advance their political and fundraising goals.

The reason I felt Edward Peters was confused is that he seemed ignorant of the need for clergy to cooperate in order to a church wedding to also become a legal wedding. If the priest doesn't fill out the paperwork, the couple doesn't become legally married. It's not clear to me how the state could recognize a religious wedding ceremony as meeting the legal requirements as well without cooperation from the religion.

I want to apologize for my bad etiquette in starting this thread and promptly going on a trip. I've been catching up with the thread now. 

What's especially interesting to me is how the "free speech" argument was discussed here by commenters, which in fact has become the main argument being brought by the petitioners and their amici before the court. Summary of that argument here.

They've shifted from free exericse rights to free speech rights, and if the court decides to grant a sense of "hybrid rights," then the limits of the free exercise clause (as in Smith) can be extended (according to the opinion in Smith).

I would also note that many supporters of Elane Photography are also supporters of same-sex marriage (including the authors of the main amicus brief, along with Andrew Sullivan, Conor Friedersdorf, Will Saletan, etc.), which ought to temper the charges of bigotry.

And to those who think this is an easy or obvious case -- as it admittedly seems if race is the operative analogy -- I would say that the Supreme Court doesn't seem to think it's obvious. They delayed making an announcement yesterday about whether the case would go forward, which indicates not necessarily that they're going to take it, but that they're giving it serious consideration and needed more time for another conference.


Thanks for this great piece. We find it valuable to discuss these issues. We're also looking at religious freedom on our blog at