Church Rites And Civil Rights

Reflecting on her Jan. 1 marriage to a female colleague in the Episcopal Diocese of Massachusetts, the Very Rev. Katherine Ragsdale, dean of the Episcopal Divinity School in Cambridge, Massachusetts, writes:

The fact that the State authorizes a marriage in no way compels any Church to perform or recognize it. As priests, we are entitled to refuse to perform any marriage for any reason. Roman Catholics routinely demonstrate this liberty when they refuse to perform marriages of divorced persons, even though the State allows them to do so. Similarly, they refuse to recognize marriages of non-Roman Catholics even though the State has issued a license. Political arguments against states allowing same-sex marriages and the federal government recognizing these marriages that claim it would violate the “sanctity” of marriage and force churches to do something contrary to their teaching or their conscience, are blatantly misleading and dishonest. Marriage equality merely guarantees equality under the law to all citizens; it does not compel churches to do anything.

"Dishonest" sounds too harsh. Proponents of marriage equality make the classic civil rights argument that government shouldn't prohibit a class of people from enjoying a contract that confers financial and other benefits. Once the state acts to end a discriminatory practice, the reaction throughout society is resounding, and appropriately so. Have you heard much about racist priests or pastors refusing to marry an interracial or African-American couple? It's a horrifying that anyone could think that way, but if they did, you can bet they would probably keep it to themselves. If a couple had such an experience at a church, one can easily imagine their arguing that no pastor or institution engaged in such practices should enjoy any advantages under federal and state tax codes. (My February 2009 rumination on the same subject is here.)

For the same reason, in marriage equality states, it's easy to anticipate lawsuits against pastors who won't do same-gender marriages. A 2008 ruling in New Jersey suggests that churches that make their facilities available to the general public for weddings or other events might be vulnerable to legal action by same-gender couples. That wouldn't be true for the other categories Ragsdale mentions: Divorced persons or members of couples dissed by the Roman Catholic Church. They would have no leverage over the church because they haven't organized themselves as a class to seek protection of their civil rights under federal law. Besides, it's a lot easier to find a more friendly church, which is also, I'm sure, what most same-gender couples will do. Who wants to force a pastor to marry you?

And yet all it takes is one person who wants to use the courts to make a larger point. Perhaps a constitutional expert will set me straight about whether that person would make any progress. Our society extends broad protections to many varieties of religious expression, unless you're a moderate Muslim who wants to build a cultural center in lower Manhattan. (For my warning that Newt Gingrich and other opponents of Cordoba House have sanctified political pressure on people of faith, go here and here.) But from a strictly moral perspective, it's hard to accept the idea that a non-profit organization or church engaged in openly racist practices should get any public benefits, including tax-deductible status for its members' donations or income tax advantages for its pastor. I'll just bet I could find a federal judge or two who'd agree with me.

I'm not ready to say that churches that refuse to do same-sex marriages deserve to be punished. If proponents of same-gender marriage feel they should be, I doubt they would say so now. They may even take the view that civil marriage equality will run into less resistance from the religious community if its more conservative denizens are reassured that faith institutions won't be punished for refusing to go along. But it's hardly dishonest to recognize that the barrier between civil and sacramental marriage may not be as impervious as Dean Ragsdale says.

Hat tip to Susan Russell