Same-Sex Marriage And Separation Of Church And State

My friend Justin and I are having an interesting discussion on thoughts from this video:

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Douglas Kmiec
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over at his Blog. (Justin and I have been friends ever since our days at Campbell and through the years have had interesting discussions). Here are some of Justin's thoughts on the subject at hand:

Should Clergy Perform (LEGAL) Marriages?

I am ordained clergy and one of my favorite parts of being ordained is the unique role that I can play in officiating a wedding. I've already done 2 this year, and there's more to come. There is something so holy to me to when I walk a couple through the vows that they chose/wrote for each other as they look lovingly in each others eyes.

However, as of late there has been an interesting point being pointed out by many in the church. The latest is found on Tony Jones' blog entitled: Doug Kmiec Is Right: Clergy Should Not Perform (Legal) Marriages.

In this Tony points out some interesting and thought-provoking observations about clergy and marriage. He says:

In no other fuction as a clergyperson did I function as an extension of the government -- not when I was baptizing, burying, counseling, or communing. Only when performing a wedding did I, with the stroke of a pen, make official a legally binding contract that, in the eyes of the state, allowed that couple to enjoy certain privileges like the ability to file joint tax returns, visit one another in the hospital, and receive joint health care benefits from one of the partner's employers.....
I do find it odious that clergypersons are called upon, in this one instance, to act as agents of the state.

He goes on to conclude:

Clergy and churches, on the other hand, should have no part in legally-binding contracts. Instead, religious professionals should bless and sanctify unions and partnerships that fit within their religious traditions as part of their sacerdotal functions.

Of course part of this is brought on by the issue of same sex marriage. Douglas Kmiec on The Colbert Report, points out that "the state has an obligation to treat all of its citizens equally and to preserve the principle of equality." In essence, he is saying that by allowing the polemic Church to decide who can and can't be married that the State is not upholding its role of equality for all citizens. This is something of which I had not considered, but has been thought-provoking to me.

By watching the video and reading all of Tony's blog, you will see that what they are suggesting is a separation of the two roles. This allows the state to practice equality, while allowing the Church to decide according to their own convictions and traditions. That would mean that different traditions would bless and marry same sex couples, and others would not. If a couple would not be recognized/blessed by their own church/tradition, then they could seek out another tradition. Either way, they would still have equal rights as heterosexual unions, because according to the State, all couples would have to go through the state for the legal union of marriage. (Read Full Post: Here).

Here are some of my thoughts from my comments on that post:

TheoPoet said...
Interesting post. I agree with all you said and I am sure officiating marriages is a joy. However, I would tend to think that officiating over sham weddings wouldn't be so joyful and by that I mean people getting married for all the wrong reasons. Lets face it same-sex marriage isn't a threat to the institution of marriage but divorce and people getting married for all the wrong reasons are. I wonder how much this plays into Kmiec's views. It seems that we spit on marriage when we allow sham weddings to happen but same-sex marriage is fought over and homosexuals with a genuine love for each-other are denied the right to marry. Isn't it amazing how marriages of convenience are always granted such as Britney Spears' 24 hour marriage or even weirder the woman who married the Eiffel Tower but not for homosexuals who are committed to each-other with genuine love.

I also wonder how literally we take the phrase: "Into this holy estate these two persons present now come to be joined. If any person can show just cause why they may not be joined together – let them speak now or forever hold their peace." from the Traditional Wedding Vow is taken. As for me I've never seen any wedding where anyone dared to take the phrase to heart and answer it---perhaps out of fear of being labeled "jealous" or a "hater" or some other insult---although, I do know of instances where perhaps the phrase should have been answered honestly and thereby preventing messy divorce or some other form of violence.

TheoPoet said...
Bringing my comments back to the issue of separation of church and state, I believe that those who oppose same-sex marriage don't understand the concept. It involves exactly as you said:

This allows the state to practice equality, while allowing the Church to decide according to their own convictions and traditions. That would mean that different traditions would bless and marry same sex couples, and others would not. If a couple would not be recognized/blessed by their own church/tradition, then they could seek out another tradition. Either way, they would still have equal rights as heterosexual unions, because according to the State, all couples would have to go through the state for the legal union of marriage.

Also, interestingly enough our Puritan fore-bearers believed in separation of marriage and church:

The English Puritans who founded Massachusetts in 1630 formed a society as committed to religion as any in history. But for them, marriage was a civil union, a contract, not a sacred rite.
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Early Boston’s Puritans would not have sanctioned gay marriage, because they would not have had the conceptual categories to make sense of the idea. They condemned and occasionally punished homosexual behavior as a sin, a deviation from the procreative function of sexuality. But in this light, homosexual behavior was not categorically different in their eyes from other forms of sexual transgression, from premarital sex to masturbation. Sexual behavior was something a person did, an action of the moment, not a form of identity or a defining characteristic of a person’s nature. Race, by contrast, was a category that New England’s Puritans often did regard as a form of identity, a defining characteristic that separated Europeans from Africans or Native Americans. In this respect, they were no different from most people of that era. And yet Puritans like Samuel Sewall, a judge on the Massachusetts Supreme Judicial Court and author of the first antislavery pamphlet in America, abhorred the laws barring interracial marriage. He fought to grant legal recognition to the marriages of slaves and free people of color. Sewall stands at the beginning of a proud tradition in which Massachusetts judges used the court’s power to decide cases in favor of equal rights for all. In Sewall’s view, all people "are the Sons and Daughters of the First Adam, the Brethren and Sisters of the Last Adam, and the Offspring of God; They ought to be treated with a Respect agreeable."

Massachusetts history reminds us that what we commonly call marriage today was initially, and quite deliberately, constructed as a form of civil union. Although marriage was a fundamental aspect of these highly religious people’s lives and the foundational element of their social order, its regulation was separate from the church. The Puritan founders understood marriage as a social institution that needed adjustment according to changing circumstances, and they left the state to do this important work.

In every region of colonial North America, devout believers fought over how to define true religion, and where to draw the line between church and state. In some of the smaller and initially more homogeneous colonies like Massachusetts and Connecticut, religious uniformity was enforced by the state. But taken collectively, no single religion in colonial America ever had the power to decide for everyone, everywhere, what was sacred. As a practical matter, the traditional practice of state-enforced religious uniformity proved to be unworkable in the new American republic. It was this de facto diversity that the First Amendment to the U.S. Constitution enshrined in federal law.

Different religious communities have long maintained different standards governing who can marry, whether interfaith marriages are permissible, what the obligations of marriage entail, and when or if divorces can be granted. We should not forget that the English Reformation began in 1529 with a conflict between Henry VIII and Pope Clement VII over whether Henry’s marriage to Catherine of Aragon could be annulled. Henry said yes, Clement said no, and in that dispute a new religious tradition, with new ways of defining the relationship between church and state, was born. The idea of legalized homosexual marriage is no doubt innovative. Some religious traditions reject it, while others support it. But the same was true of past adjustments to the legal definition of marriage, such as the recognition of interracial marriage. The traditions pioneered by Boston judges–a legacy that removed marriage from church control–have made these legal adjustments to social changes possible. A policy wherein all marriages are considered as civil unions would be consistent with America’s strongest traditions regarding civil liberties, equal rights, the separation of church and state, and the freedom of religion. (Read full article: Here).

It wasn't until later when theocratic Calvinism took over that marriage became entrenched in a blend of church and state language as it had always been in the Catholic/sacradotal traditions.

For all those interested, join the conversation over here: A Noggin' Full Of Noodles: Should Clergy Perform (LEGAL) Marriages?.