Texas education board rejects in-depth study of First Amendment (DallasNews.com)
EXCERPT:
AUSTIN – Republicans on the State Board of Education soundly rejected a Democratic-backed proposal Thursday that would have required Texas students to be taught the reasons behind the prohibition of a state religion in the Bill of Rights.
The contentious decision in curriculum standards for U.S. government classes appeared to signal the unhappiness of several board members with court rulings that have affirmed the separation of church and state – including a longtime ban on school-sponsored prayer.
Read the full article at: http://www.dallasnews.com/sharedcontent/dws/dn/education/stories/031210dnmetsboe.19ab856dd.html
Washington House of Representatives Attempts to Facilitate Union Take-Over of Religious Child Care Centers
By Michael D. Peabody, Esq.
So what’s the biggest threat to religious liberty? According to J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty, the answer is found in the strings attached to government funding of religious activity. Earlier this month, during a speech for the Jewish Anti-Defamation League, Walker said, “What the government funds, it always regulates. Government-sponsored religion is always bad for religion. How can we raise a prophetic fist with one hand and take government money with the other?”
The truth of Walker’s statement was underscored just last week when the Washington State House of Representatives passed HB 1329, now working its way through the state Senate, that cleared the way for unionization of private and most non-profit child care centers if they take government subsidies for as little as one child, and even declares the centers’ employees “government employees” for the purposes of unionization.
In fact, HB 1329 openly declares that “child care center directors” and “workers” are “public employees” for the purposes of collective bargaining, if at least one child attending the center received government subsidies. It further declared that “solely for the purposes of collective bargaining, the Governor is the ‘public employer.’”
There is an exemption for large non-profits with more than 200 regional affiliates or that send more than $3,000,000 in “membership dues” to a national organization. The term “regional affiliates” is not defined although it is believed to primarily be aimed at large organizations such as the YWCA. Large churches might be able to escape through this loophole if they can claim that the local congregations count toward the total of “regional affiliates” and that money sent to the national organization counts toward membership dues, but that will not be an easy argument for most churches that happen to run child care centers to win.
The House analysis claims that the bill would allow private child care centers to continue to have the right to “chose, direct, and terminate” child care workers. However this is boilerplate language for most contracts between employers and employees and it is easy to foresee scenarios in which religious child care organizations would be required to work their way through the union grievance process and defend their religiously-based decisions to a non-religious entity. How can a religious child care center fulfill its faith-based mission when it has to answer to a secular labor union?
At a time when child care is expensive and parents are having to work longer hours to make ends meet, religious child care centers that have accepted subsidized children are in a particularly precarious position. Local child care centers are generally small, mission-focused organizations with little money to defend themselves at the legislature. Sponsors of HB 1329, including the labor unions, are banking on this government dependence to generate pressure to dive into the non-profit sector and take over religious employers. In this case, the labor unions are on the verge of taking over an entire industry.
There are Federal laws which might pre-empt this legislation, or as an alternative, a basis for non-profit exclusion, as well as U.S. Constitutional considerations, but it could be years before these issues could be sorted out by the courts. In the meantime, if HB 1329 passes in its current form, and barring any court orders stopping it from going into effect, religious child care centers might either have to accept unionization or close their doors.
While there are many good reasons why government funding is necessary, and it is not at all certain that HB 1329 will become law, I would not be surprised to see similar legislation cropping up in more states as labor unions take advantage of government strings to try to control the elusive non-profit sector.
More on government funding to come in a future newsletter.
For more information about HB 1329:
- Read the House Bill Analysis at:http://apps.leg.wa.gov/documents/billdocs/2009-10/Pdf/Bill%20Reports/House/1329%20HBA%20CL%2009.pdf
- You can track HB 1329 and read legislative summaries and materials athttp://apps.leg.wa.gov/billinfo/Summary.aspx?bill=1329&year=2009
- Also, be sure to read NRLA President Greg Hamilton’s testimony, in opposition to HB 1329, that he presented before the Washington Senate’s Labor, Commerce, and Consumer Protection Committee on February 18, 2010 athttp://www.npuc.org/site/1/docs/HB_1329_Senate_Testimony_2-18-10.pdf
Muzzle Flash Evangelism: Outrage over Biblical References on Military Gun Sights (From ABC News)
Spiritually transformed killing machines of Christ (Civics News)
Scott Ritsema
CIVICS NEWS
January 19, 2010
As if there weren’t enough instances where the American Empire is associated with the faith of Jesus (see here, here, here, here, here, here, here, here, here, here, and here for starters) another sad story has leaked into the media (see ABC story here), this time about Bible verses being inscribed on the sights of high-powered military-issued rifles. Yes, you read that correctly.
The Michigan company, Trijicon, which has been awarded with Pentagon contracts in the hundreds of millions of dollars, produces the rifle sights with Bible verse references stamped on them, and they stand by the practice–largely without challenge from the Christian community.
Company spokespersons have defended the practice; however, the ABC expose did not ask them about the shocking irony of putting Bible references from Jesus who preached non-violence on a weapon whose sole purpose it is to maim and kill those who Christ commanded us to love and serve. Unfortunately, ABC is left to do the job of exposing this, as there have not been Christian voices speaking against this practice, even though it tragically provides a Christian veneer for the aggressive, imperial violence that is taking place overseas.
The media rightly focuses on the unconstitutional nature of the practice of stamping Bible messages on state-issued weapons. Indeed this is a clear violation of the Establishment Clause of the First Amendment–the state should not be supporting a religion. Also, ABC reports on the concerns that if America’s wars are soaked in Christian language, then the Islamic world will perceive the wars as religious crusades.
These are very real and pertinent concerns. However, the focus on the constitutionality of the practice and the concern about enraging an Islamic enemy misses the point and dodges the most insidious aspect of the scandal.
The biggest problem with this–from a Christian point of view–is that it misrepresents Jesus. Where Christ should be preached from a posture of loving servitude, through this practice his name is being associated with warfare and killing. Where his Kingdom of love is supposed to transcend human governments, the U.S. government is once again baptized as the march of God on earth. It’s time for Trijicon to remove the Bible verses from the rifle sights. I humbly ask them to please reconsider the kind of distorted picture of God they are painting for the world. Does Jesus, who called on his followers to love their enemies, really sanction the military occupation of Afghanistan?
One former Air Force officer tells of soldiers who’ve blown the whistle on their commanders who have called the weapons “spiritually transformed firearm[s] of Jesus Christ.” What a sad view of Christianity that is being presented to the world. Firearms of Jesus Christ? Jesus is the one who told Peter to put his sword back in its place, and whose sacrificial death has inspired countless non-violent martyrs to do the same. High-powered military arms are in no way “of Jesus Christ.” Stamping a Bible verse on an instrument of gruesome death and destruction does not make it “spiritually transformed.”
I hope that Christian leaders speak against this practice, as it represents just another form of legitimizing the Empire under the cloak of pseudo-Christian trappings.
I pray that Christians would show the light of truth to the world that God is a God of love, and that he calls his children to live in a way that is best for them–in non-violence, non-coercion, peace, servitude, and love.
Blue Laws and Sunday Legislation-why do they exist? CNN Video
A video describing some of the religious and secular rationale behind American Sunday blue laws.
Faith, Freedom, and Justice Sonia Sotomayor (Liberty Magazine)
By David A. Pendleton –
Ever since President Barack Obama nominated Sonia Sotomayor to the United States Supreme Court, the chattering classes have speculated endlessly regarding the impact she might have on the future of American jurisprudence. She would bring wide-ranging experiences to the Court: prosecutor, civil litigator, federal trial judge, federal appellate judge, law school instructor, and Hispanic woman. While not a Horatio Alger rags-to-riches success story, she comes pretty close.
As only the second Hispanic named to the Court, her views on race and ethnicity have naturally been of great interest to Court watchers, litigators, and the so-called fourth estate. In fact, for a time her “wise Latina” comments and the president’s equally controversial “empathy standard” were unwelcome distractions and fodder for sharp criticism. But the threatened firestorm turned out to be more a tempest in a teapot, and during the Senate confirmation hearings she conducted herself with aplomb, charm, and dignity, demonstrating not just a nuanced and sophisticated comprehension of the law but a judicial demeanor and temperament to be expected of one enrobed in the marble edifice at the entrance of which bears the inscription “Equal Justice Under Law.”
At the age of 55, she could potentially serve until 2044, should she serve as long as Justice Oliver Wendell Holmes, Jr. (who served on the Court until the age of 90). Her relative youth, then, is one of the positive considerations that no doubt influenced her nomination.
Perhaps of somewhat lesser public interest, but of no less public importance, are Sotomayor’s views regarding the Constitution’s provisions generally and the safeguards concerning religious liberty specifically. Appellate judges exercise discretion in interpreting the U.S. Constitution, but are necessarily constrained by the binding precedent set by the U.S. Supreme Court. Since 1803 the judiciary has had final legal interpretive authority within our nation¹s system of government and the Supreme Court has reigned supreme over all courts regarding the laws of the land. As Chief Justice Marshall opined in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
Three provisions in the U.S. Constitution expressly reference religion, effectively presenting a triptych showcasing the New World’s commitment to freedom of conscience. One is in Article VI, Section 3 of the U.S. Constitution, which provides in pertinent part that “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.” While age and residency requirements may be prescribed for would-be officeholders, this “no religious test” clause clearly proscribes any religious criterion being applied. (In some jurisdictions in colonial America public office holders had to be of the Protestant faith.)
The other two religion provisions are situated in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This pair of clauses (free exercise clause and establishment clause) proved fertile soil from which has grown the vast body of intricate, if not convoluted, case law concerning religious liberty.
While Sotomayor’s past judicial experience never afforded her the opportunity to opine on the Article VI, Section 3 prohibition against religious tests for officeholders, she has adjudicated cases pertaining to the other two provisions.
A quartet of cases gives voice to her views regarding the religion clauses. Ford v. McGinnis, for example, involved an inmate in a state correctional facility who requested to be served an Eid ul Fitr meal for observance of the Muslim Festival of Breaking the Fast. He wanted to participate in the daylong celebration at the conclusion of Ramadan, which is a holy month of fasting and prayer for Muslims. The prisoner had to be transferred from Rikers Island to the Downstate Correctional Facility for a court appearance on January 7, 2000, which was the very day for partaking of the Eid ul Fitr meal and so was unable to participate at the prescribed time.
Prison officials learned that most Muslims would not observe the feast at a time other than at the appointed time, and so they informed the inmate that no such makeup feast would take place given the generally accepted dictates of Islam. The prisoner in question begged to differ and filed a lawsuit.
The timing of the suit may not have been ideal for the litigant, who filed after the Religious Freedom Restoration Act had been invalidated by the Supreme Court (at least to the extent that it applied to the states) but before the Religious Land Use and Institutionalized Persons Act was passed by Congress. It afforded, however, the appellate court the occasion to decide the issue squarely on the Constitution, not on interpretations of federal statutes.
A federal trial court had affirmed the decision of the prison not to serve the meal at all since by conventional Muslim standards it would have been too late. By the time Sotomayor heard the case, she was a federal appellate judge serving on the Second Circuit. Writing for the panel, she opined that the appellate court would decline to assess the “objective reasonableness of the prisoner’s belief” and would ask rather the more focused and individualized questions of whether “a claimant sincerely holds a particular belief and whether the belief is religious in nature.”
This was because judges, though learned in the law, did not have the “aptitude to pass upon the question of whether particular religious beliefs are wrong or right.” The decision served a didactic purpose, signaling that courts would look to the sincerely held beliefs of the individual adherent party to the litigation, not solely to whether the belief was an official creed or a “tenet or dogma of an established religious sect.” No group would determine for the individual what the individual in question believed.
Not a favorite of correctional facility wardens, the case made clear that the Constitution’s guarantees afforded substantive rights, not easily dismissed, and certainly not diminished due to the idiosyncratic religious beliefs of the individual asserting the rights.
The case of Flamer v. City of White Plains was a suit by Rabbi Reuven Flamer, a Hasidic Lubavitcher Jew, who requested to erect a menorah, a nine-pronged candelabrum, in a city park. He was precluded from so doing by a city council resolution, supported by Reform Jews, prohibiting fixed outdoor displays of religious or political symbols in government parks. The rabbi asserted his constitutional rights to free exercise of religion and to free speech and argued that the city resolution was unconstitutional.
Sotomayor, then serving as a federal trial judge, struck down the resolution as an unconstitutional content-based regulation of speech. A hybrid case involving two First Amendment protections (speech and religion), Flamer is seen as a victory for proponents of unfettered religious speech. Why should religious speech be accorded less protection than secular speech? After all, freedom of religion is expressly protected and, therefore, religious speech should for that very reason be accorded more, rather than less, protection.
At the same time, however, there are those of a sincerely religious orientation who equally revere the Constitution who are less than completely comfortable with the decision. For them, the Constitution precludes use of government property for such religious expression. The establishment clause is not just about disestablishing churches but about preventing the perception of government endorsement of a particular faith. The case is not just a skirmish between conservative Hasidic Lubavitcher Jews and progressive Reform Jews; it also reveals the inherent tensions between the establishment clause and free exercise clause.
Judge Sotomayor, with the deft hand of a judicial maven, identified the relevant facts and applied the legal precedent. After describing the distinctions between a traditional public forum, a nonpublic forum, and a designated public forum, she permitted the expressive action of erecting the menorah, vindicating the right to religious speech in a forum in which no one would mistake the menorah for government speech. No doubt the case would have been decided the same way whether the display entailed the Ten Commandments, a crescent, or a crèche.
Campos v. Coughlin is a third case that can serve as a window on Sotomayor¹s approach to religious freedom issues. Campos also involved incarcerated individuals, self-described adherents of the Santeria religion, though some had previously identified themselves as Christians. What makes this case interesting was not just that the believers were prisoners or that they insisted that they had a right to wear multiple strands of beads; it is important because while such a devotional practice may have been officially optional for Santeria practitioners, it was not optional to the petitioners in question. If the state denied their request for accommodation, the denial could, in their minds, “result in negative and possibly irreversible life consequences for the practitioner.”
In deciding the case Judge Sotomayor upheld their claim, holding that an accommodation was constitutionally required. State corrections administrators, while ever mindful of prison safety and security concerns, were no less responsible as government actors for complying with the constitutional right to the free exercise of religion. The right is not absolute and admits of caveats, qualifications, and limitations. But on balance the religious freedoms guaranteed to the prisoners outweighed concerns that the beads might identify prison gang membership (a genuine, nontrivial concern of the warden).
Hankins v. Lyght was a case in which an elderly Protestant minister filed suit against his denomination’s implementation of mandatory age-based retirement. Though he loved his church, he hated what in his mind was its thinly veiled ageism. In this case Judge Sotomayor parted company with the majority and filed a dissent.
She argued that the federal age discrimination in employment statute was inapplicable to a church’s hiring, retention, and employment practices, for to hold otherwise would unduly intrude into matters (of faith) regarding which courts had no competence. Court involvement in a church¹s mandatory retirement dispute would be to trespass on “spiritually intimate grounds of a religious community’s existence.”
With due deference to applicable precedent, she explained her reasons for dissenting. One might infer from her dissenting opinion a profound respect for religious institutions and their faith-informed internal operations. The right to believe belongs not just to an individual but to an aggregate of individuals, and government should studiously avoid becoming embroiled in internecine struggles over religious questions between believers and their communities.
These four cases stand for the constancy of the Constitution. They reveal Sotomayor’s judicial leitmotif of upholding constitutional rights not just in trouble-free circumstances but even under challenging conditions. The Constitution guides the ship of state not just in tranquil waters but even, and perhaps especially, in the Sturm und Drang of the perfect legal storm.
While it might be an exaggeration to call her opinions illuminating, learned, and lucid, it’s not much of an exaggeration. Her published opinions exhibit the painstaking and proficient habits of a judge who is fairly even-tempered, passionate about being dispassionate, and decidedly mainstream. She is not, at least on the religion clauses, an ideologue with a doctrinal ax to grind. Her opinions avoid courting the avant-garde; instead, they are closely reasoned and meticulously written with the fidelity to statutes and studious attention to precedent expected of a neutral adjudicator. Noncontroversial is an apt description of her judicial oeuvre‹and perhaps this is precisely what the president wanted.
These are not the only opinions that evince recently confirmed Justice Sotomayor’s religious liberty jurisprudence. Professor Howard M. Friedman has compiled an extensive list of Sotomayor’s rulings on religion clause issues at his blog, Religion Clause.
Some groups criticize Sotomayor’s jurisprudence as being merely comme ci, comme ça (so-so) or rather moderately tolerable. Others find her to be―for good or for ill―a rather “strict church-state separationist.” Still others laud her as a brilliant jurist.
According to the Baptist Joint Committee for Religious Liberty, an organization noted for its strict church-state separation, Sotomayor upholds religious “free exercise―even in difficult settings such as prisons and in cases where the religious practices of plaintiffs are unfamiliar,” and “where the governing case law was not settled, she accurately predicted the Supreme Court’s eventual resolution.”
Dan Gilgoff, writing in his God & Country blog for U.S. News and World Report, found Sotomayor’s religion clause cases so middle-of-the-road that he predicted the White House might even focus on them to garner support among religious conservatives.
The American Center for Law and Justice, a traditional values counterpart to the liberal ACLU, doubtless would have preferred a nominee more in the conservative mold of Justice Scalia. But its decision not to actively oppose Sotomayor’s confirmation and to rather generically indicate that it “stands firmly behind the appointment of judges who will interpret the law, rather than legislate policy” is telling.
While the U.S. Senate fully inquired into Sotomayor’s judicial philosophy, one thing it properly declined to do was inquire into “her own religious faith.” While it is common knowledge that she is a practicing Catholic Christian (and will constitute the sixth Catholic on the nine-member Court), her prayers, devotional practices, and personal theology are not pertinent to her qualifications for the U.S. Supreme Court. Such a line of questioning could be tantamount to a violation of the “no religious test” provision of the Constitution.
In conclusion, if Justice Sotomayor’s past writings are any indication, her future religion clause opinions should please First Amendment advocates, especially those for whom religious liberty is vital.
David A. Pendleton, a former legislator, adjudicates workers compensation appeals in Honolulu, Hawaii.
Although ReligiousLiberty.TV is not affiliated with Liberty Magazine, we strongly support the magazine and are pleased that the magazine and the author have granted us permission to repost this informative article about the views of the newest Justice on the United States Supreme Court on the intersection of church and state. If you enjoy this article, please consider subscribing (it is only $7.95 a year) or contributing to further the mission of the magazine. RLTV Editor
Pastor Boissoin’s Lawyer: Case Will Positively Impact Religious Freedom in Canada (LifeSiteNews)
From http://www.lifesitenews.com/ldn/2009/dec/09120706.html
EXCERPT:
CALGARY, December 7, 2009 (LifeSiteNews.com) – Gerald Chipeur, the lawyer who represented Pastor Stephen Boissoin, has said that the recent ruling in favor of Mr. Boissoin “will have a significant long term positive impact on religious freedom in Canada.”
Pastor Boissoin was exonerated by a Court of Queen’s Bench judge last week after being subjected to the proceedings of the Alberta Human Rights Tribunal for over seven years. The Tribunal had found Boissoin guilty of “hate speech” for having written a letter to the editor of a local newspaper about the homosexualist agenda.
But Justice Earl C. Wilson last week ruled the letter Mr. Boissoin wrote to the editor of the Red Deer Advocate on June 17, 2002 on the subject of homosexual-rights curricula in the province’s educational system was not a hate crime but legitimate expression allowed under freedom of speech.
“The decision of Justice Earl Wilson of the Court of Queen’s Bench in Boissoin v Lund will have a significant long term positive impact on religious freedom in Canada,” Gerald Chipeur wrote in a summary analysis of the judgment, forwarded to LifeSiteNews.com by Boissoin.
Chipeur states that the bar has been raised substantially on what may in the future be construed as a violation of the “hate” provisions of human rights laws. “The decision established a very high threshold for the conclusion that a publication is in violation of the ‘hate’ provisions of Alberta’s human rights laws,” he said.
Read the full piece at http://www.lifesitenews.com/ldn/2009/dec/09120706.html
Germany: Rigid Sunday law used against Scientology which is considered “business” by gov’t. (Der Spiegel)
GERMANY – Scientologists have had a particularly difficult time in Europe where many view them as a nuisance for their recruiting activities. When they opened a new 43,000 square foot facility near Berlin, the locals complained. However, the city found a loophole based on a 1995 Federal Labor Court ruling that found that Scientology is “neither a religion nor an ideology” and is therefore a business.
EXCERPT:
According to the Berlin daily Der Tagesspiegel, a Berlin city official said at a neighborhood meeting on Wednesday that the city had reviewed existing laws and determined there was nothing they could do to prevent the center’s marketing activities.
“In our view, this is a business activity,” Marc Schulte, the city district’s economic advisor, told the paper.
But this also means that business restrictions apply to Scientology, including the federal law banning sales on Sunday. Any normal church is free to sell postcards, books or any other educational or fundraising goods on that day, but the Church of Scientology will be banned from offering courses or selling any goods on Sundays. City officials have said they will strictly observe the Scientologists to make sure they follow the rule of law.
Read the full article at http://www.spiegel.de/international/0,1518,462439,00.html
US court rules against “I Believe” car license plates (APD)
Proposed "I Believe" License Plate - South Carolina
Washington D.C./USA, 11/13/2009/APD - A US federal judge has ordered South Carolina not to issue cross-adorned ”I believe” car number plates, ruling it violates the constitutional separation of church and state. US District Court judge, Cameron Currie, ruled that the state legislature – which voted unanimously last year to approve the number plates that include a cross in front of a stained glass window – had clearly given favoured government treatment to a single faith, and ordered to halt its issue.
”Whether motivated by sincerely held Christian beliefs or an effort to purchase political capital with religious coin, the result is the same,” Judge Currie wrote in a 57 page order. “The statute is clearly unconstitutional, and defence of its implementation has embroiled the state in unnecessary (and expensive) litigation.”
“Americans United for Separation of Church and State” (AUSCS), a religious liberty group that brought the legal challenge to the bill before the court, hailed the decision. ”This is great news,” said its executive director, the Reverend Barry Lynn. ”Some officials seem to want to use religion as a political football … That’s an appalling misuse of governmental authority, and I am thrilled that the judge put a stop to it.”
Christian rights activists decried the decision, and the lieutenant-governor of South Carolina, Andre Bauer, who initiated the legislation, said the lawsuit discriminated against persons of faith.
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This article is also available on the Internet at:
http://www.stanet.ch/APD/news/2370.html
A Church Scorned: Church, State, Marriage, and the Quest for Power
“And so, by the power vested in me by the State of ___ and Almighty God, I now pronounce you husband and wife. What God has joined together, let no man put asunder.”
This pronouncement is the point in a religious wedding ceremony where the power of the state and the power of the Almighty God come together to fuse a couple in holy matrimony. To date, the vast majority of debates on same-sex marriage have focused on whether it is morally or spiritually correct. However, the foundational issue is whether the church should seek the right to control marriages performed outside of its walls. At its core, this is a battle that challenges the tenuous yet mutually protective balance between church and state, and the results matter regardless of what you believe about same-sex marriage.
Weddings are typically joyful experiences and even the most avowed atheists have not tried to prevent ministers from claiming the power of the State in performing the ceremony. However, even though the church and the state may happily hold hands at the wedding, they cannot dance together gracefully into a long-lasting marriage unless each has great respect for the non-overlapping rights and obligations of the other.
Unlike the newlyweds, the state is not obligated to “forsake all others,” when it comes to religious viewpoints. The state has little discretion when it comes to solemnizing marriages, and absent an amendment to the constitution itself, is limited only by statutes having to do with the consent of the parties, age of the parties, and whether there are more than two parties involved. On the other hand, churches have very broad discretion to solemnize marriages and can refuse to do so for virtually any reason. This broad discretion has not been challenged.
However, when the state begins to recognize marriages that churches find inappropriate, many churches are offended – churches feel almost as if the state has decided to “cheat” on the church. And hell hath no fury like a church scorned.
Regardless of the fact that same-sex couples have sought ceremonies in churches that will perform them or have sought civil ceremonies, conservative churches have begun to step in and intervene and have relied upon the power of the majority to force changes in otherwise permissive state constitutions. This is not only a battle between secularism and religion. It is a battle between competing religious ideologies, and ultimately a battle for spiritual control.
Alonzo T. Jones, writing in his 1891 classic, The Two Republics: or, Rome and the United States of America, makes an astonishing observation about the way that the Medieval church accumulated political power over the state.
“Another most prolific source of general corruption was the church’s assumption of authority to regulate, and that by law, the whole question of the marriage relation, both in the Church and in the state. ”The first aggression . . . which the Church made on the state, was assuming the cognizance over all questions and causes relating to marriage. ” — Milmaii.21 (Click here to read the entire passage.)
While we are not at a point in history where the church is asserting direct political control, we can see that the church may be headed down this pathway yet again. After describing the circumstances and the Church’s methods, Jones continues:
“[I]n accordance with the rest of the theocratical legislation of Constantine and the bishops, the precepts of the Scripture in relation to marriage and divorce were adopted with heavy penalties, as the laws of the empire. As the church had assumed ‘cognizance over all questions relating to marriage,’ it followed that marriage not celebrated by the church was held to be but little better than an illicit connection.”
The church continued to assert control over legal marriage for centuries thereafter. In March of 1880, the Canadian Parliament considered a bill that would allow a man to marry his deceased wife’s sister. The debate quickly turned to an argument over whether the church or the state had the power to regulate marriage. There were Protestant and Jewish participants in the debate, the entirety of which can be read above, however the Catholic representative quickly asserted that the Church had “supreme power over marriage” and that the state must stand down.
“Pius IX, in his letter to the King of Sardinia, dated 19th September, 1852, says : ” It is a dogma of faith that marriage was raised by Our Lord Jesus Christ to the dignity of a sacrament.” Would you know the doctrine? The Council of Trent speaks: ‘Whosoever says that marriage is not really and truly one of the seven sacraments of the Evangelical Law, let him be anathema.’ If marriage is a sacrament, and such is our unalterable belief, the Church only, by divine right, has supreme power over Christian marriage. In fact the Church alone is the dispenser of the sacraments. St. Paul teaches us this in his first epistle to the Corinthians, chapter 4, in which he says : ‘Let a man so account of us as of the ministers of Jesus Christ and stewards of the mysteries of God.’ The Pope Gelasius, writing to the Emperor Austasins told him plainly: ‘Although your dignity raises you above the human race, you are nevertheless subject to the Bishops in matters relating to the faith, and to the delivering of the sacraments.’
And what is a sacrament, if it be not a means subordinate in its nature to the object of religious society? The Church has, therefore, supreme power over marriage. . . . We now arrive at the true question as it presents itself to us. We shall easily solve it. The hon. member for Jacques Cartier brings in a Bill which may meet with our approval, but he has just delivered a speech which I cannot accept as an expression of the ideas and principles of Catholics upon this question of marriage. What does the hon. member maintain? That this Parliament has the undoubted right to establish absolute impediments to marriage, and the not less undoubted power of dispensing with them. I protest against such a declaration, and I emphatically deny that this Parliament has a right to legislate as to the validity of marriage. Marriage is a sacrament; the state has nothing to say as to the administration of the sacrament, and, by consequence, as to the validity of marriage. That is an ecclesiastical contract over which religious society alone has a power, which cannot be vested in the state.” (Emphasis added. Click here to read the debate.)
In the eyes of the Catholic church at the time, only sacramental marriage was legitimate. Again, the current debate relates to this history. Does the church or the state have the power to define marriage? If the church has the power, which church?
In California, church and state collided on marriage issues in 1948 when the Catholic Church sued claiming that the state had violated its religious liberty through a long-standing civil prohibition on interracial marriages. The Court issued its ruling in Perez v. Sharp,198 P.2d 17, 32 Cal. 2d 711 (1948) (also known as Perez v. Lippold). Those opposed to interracial marriage raised three major arguments: First, they argued that the law was really not discriminatory. Secondly, they discussed the effect on the children. Third they asserted that, in this case, the state had the power over the church’s sacrament because of an interest in promoting the “health safety, and general welfare.” Ironically, these three arguments once used against the church’s request provide the backbone of the current arguments against same-sex marriage.
The Court’s majority found that the church was right and that the “anti-miscegenation” law was unconstitutional. Justice Shenk, dissenting in favor of the prohibition, wrote that the law was not discriminatory because, “Each [party seeking to marry a member of a different race] has the right and the privilege of marrying within his or her own group.”
In language that appears extremely offensive, Shenk turned his attention to the children resulting from interracial unions, “It is contended that interracial marriage has adverse effects not only upon the parties thereto but upon their progeny . . . and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races.”
Justice Shenk then stated that prohibiting interracial marriage was consistent with the “peace and safety” provisions of the Constitution. Shenk’s arguments should be familiar if you are following the current debate, and in fact several of the same cases are regularly cited including Cantwell v. Connecticut, and Reynolds v. United States.
“Other considerations are presented in connection with petitioners’ contentions that their religious liberty is being infringed. The First Amendment to the United states Constitution declares that Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof. The due process of law clause of the Fourteenth Amendment embraces this fundamental concept of liberty as expressed in the First Amendment and renders the states likewise incompetent to transgress it. However, this religious liberty ‘embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’ Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352; Murdock v. Pennsylvania, 319 U.S. 105, 110, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81; Gospel Army v. City of Los Angeles, 27 Cal.2d 232, 163 P.2d 704. It has long been held that conduct, consisting of practices and acts, remains subject to regulation for the health, safety and general welfare. For example, a legislative determination that monogamy is the ‘law of social life’ has been held to prevail over the practice of polygamy and bigamy as a duty required, encouraged or suffered by religion. Reynolds v. United States, supra, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12.
“The reasoning behind this construction of the Constitution is obvious. The determination of proper standards of behaviour must be left to the Congress or to the state legislatures in order that the well being of society as a whole may be safeguarded or promoted. The protection of the individual’s exercise of religious worship afforded by our state Constitution, Article I, section 4, corresponds with that furnished by the federal guaranty as interpreted by the United States Supreme Court. Our Constitution expressly provides that the free exercise of religion guaranteed ’shall not be so construed as to * * * justify practices inconsistent with the peace or safety of this state.’”
Justice Shenk then provides a sampling of “supportive” scientific and legal documents, which are nearly frightening, and draws the following conclusion:
“ The foregoing excerpts from scientific articles and legal authorities make it clear that there is not only some but a great deal of evidence to support the legislative determination (last made by our Legislature in 1933) that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power. There may be some who maintain that there does not exist adequate data on a sufficiently large scale to enable a decision to be made as to the effects of the original admixture of white and Negro blood. However, legislators are not required to wait upon the completion of scientific research to determine whether the underlying facts carry sufficient weight to more fully sustain the regulation.”
Incidentally, most churches stayed out of the interracial marriage debate, leaving the Catholic Church to carry the civil rights issue forward.
Although it has not happened as of yet in California, a lawsuit brought by a church that wishes to perform same-sex marriages that are recognized by the state could easily follow the reasoning found in Perez. This could create a bitter inter-religious fight in the courts between fundamentalist churches and permissive churches, and the courts would be asked to make a ruling on a religious issue. My guess is that fundamentalists considered this troubling prospect and proposed the Constitutional Amendment to take the matter out of the court system altogether. However, in doing so, marriage was denied a full legal treatment, and the reliance on public sentiment to permanently curtail judicial examination of potential rights creates a very troubling precedent which will likely carry over into other contexts. To understand the gravity of this approach, consider that had a ballot initiative been campaigned to amend the California constitution in opposition to the California Supreme Court’s finding in favor of allowing interracial marriage, interracial marriage would likely be unconstitutional in California today.*
While there are certainly reasons why churches should to have the right to solemnize only traditional marriage of a man and a woman within their walls, there is no legal foundation for churches to prevent marriage in other arenas. This could only be obtained via a structural change to the constitution itself.
Churches that are willing to argue that religious liberty does not extend to marriage are also asserting their power to limit the “rights” of other churches to perform same-sex marriages, and could soon see their own liberties limited in other areas through operation of their own logic if the political winds shift.
Legally, not religiously, the institution of marriage is at a crossroads, and there are several ways that the matter could be resolved. First, all marriages could be reduced to nothing more than a civil contract with a separate non-legally recognized spiritual component. Secondly, the state could recognize the legal status of marriages between two consenting adults regardless of gender, and preserve the civil / religious nature of marriage and continue to preserve the broad discretion to marry or not presently enjoyed by churches.
Considering the most recent votes on marriage, I would like to offer a third possibility. Instead of secularism, could it be that religion will prevail over the state, casting a “theocratic” shadow over the nation? In the late 1800s, the church’s power to control marriage was used as the precedent to promote laws governing the other institution of creation, the Sabbath.* Could that happen again? Maybe this is slippery slope reasoning, but considering that religious fundamentalists have been arguing that the secular state will prevail over the church if left unchecked, it is not an unfair argument. Perhaps instead of a single slippery slope, we are at the peak of the roof, facing slopes in both directions.
In a future article I plan to explore the history of marriage further and its legal relationship to religious legislation, but for now, at the least we should recognize the need to discern the issues involved in this debate fully before placing liberty of conscience at risk.
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*The historical link between regulation of marriage and the legal basis for proposed sabbath legislation will be explored in more detail in a future article. For more on the issue of majoritarian control of fundamental rights, please read the prior essay, Raw Majority Power: Why Checks and Balances Matter