Many of us are excited that the British House of Commons recently passed a marriage equality bill. Wonderful! But there are a few big buts.We in the U.S. must take any victory as we it; but while we celebrate the 'evolution' of dinosaurs, Americans should understand why any similar law would fail to pass muster under the American Constitution.
For Americans, the essential key to this superb report by John F. Burns and Alan Cowell is that this legislation will exempt the Church of England and other faiths from an obligation to perform such ceremonies. Once again, Religion Poisons Everything . The problem is what that report does not tell: that the British law will allow clerics to not only deny civil rights but retain civil authority at the same time. That is a law “respecting the establishment of religion” that could not pass muster under the U.S. Constitution.I have said it before and will say it again: This faux debate is no more about marriage than the Monkey Trial was about monkeys. It is not about law but about religion insinuating itself into secular affairs. Yes, the House of Commons took a step in the right direction; however the law will also have to pass the House of Lords and herein lies the rub.
Democracy? Fuggetaboutit! Unlike the U.S. Senate it is the British mandate that 26 bishops of the state established Church of England sit in the House of Lords. They are not elected in the democratic process of We The People. Just imagine if the U.S. Constitution mandated that 26 Catholic Bishops have seats in the senate and we have no say! Call that what you want but do not call it Democracy?Still there is something quite remarkable here. Despite its state established religion England (unlike the U.S.) is not an especially religious nation. The vast majority are not church goers and, as we all know, going to church no more proves one a Christian than getting married proves one is straight. Indeed, in early 2004, it was announced that atheism would be taught during religious education classes in England! Imagine that happening in the U.S.!
While House of Lords religious faction is small it is still powerful and the churches of England and Wales will be exempted from the law demanding equal rights. That, of course is, by definition, a “law respecting the establishment of religion”. Applying the requisite 'strict scrutiny' test, such laws can not pass constitutional muster in America and for all the reasons I have stated here and here , the similar New York state exemption is a First Amendment case just waiting for the right fact pattern. I predict it will eventually come down. Indeed, I suspect it was just a device by which the tub-thumpers were able to save face. ('See we tried but it's those damned activist courts enforcing the Bill of Rights.') Sad to say there are still some ignoramuses who believe that the 'free exercise' of religion means that,
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.The reason the British bill would fail in a U.S. federal court is because, unlike the U.S., England has an 'established religion' and a no written constitution. We, however, do not have an established religion (our Constitution forbids it) and we did take the trouble to write our Constitution down. That Congress “shall make no law respecting the establishment of religion ...” is first in our Constitution, first in our Bill or Rights, and first in our First Amendment, because it was first and foremost on our founding fathers' minds. They witnessed first hand the blood-soaked histories of England and France fueled by the religious poison that controlled secular affairs.
Understand what is really going on here. Respecting religion? No! It is the same old story of Religion being given the proverbial inch and taking the infamous mile. It is religion refusing to respect the secular social contact upon which IT intrudes as it demands exemption from the social contract.Unless the Church of England appeals to Greek or Roman paganism as its precedent (and even that is a dubious defense at best ) marriage was always a secular, civil, contract governed by the state for epochs before Christianity was even born. Indeed, the church had absolutely nothing to do with marriage until the 9th century when, after a civil ceremony, couples began to appear at the church steps to ask the priest to come out and give them his blessing. Marriage did not even become a sacrament until the 11th century by which time religion subsumed the state and held it captive.
Under our Constitution no such religious exception could survive 'strict scrutiny' and pass constitutional muster. “Equal protection” says what it means and means what it says. When a cleric in America performs a marriage they act in a dual capacity: as clerics who are provisionally granted the privilege of also solemnizing a civil, secular, contract and who act as civil magistrates thus killing two birds with one stone. It is the grant of 'state action'. Like any state granted accommodation, a church may retain that civil authority only as long as it follows the law or it will be striped of both its tax except status and its civil authority.For instance, if it wanted to the Mormon Church could arguably (under the First Amendment) marry one husband to ten wives or refuse to marry an inter-racial couple even if one spouse is a member in good standing of that faith. Arguably the government can not dictate otherwise. But there is a flip-side to that choice: nor, must the state respect that denial of rights and place the state's seal of approval on it! That refusal would come with a price for, by the practice of denying equal civil rights, the church would be stripped of it's tax exempt status and civil authority such that no further marriages would be recognized by the state and no marital rights or privileges and immunities attach. Go ahead and exercise your religion as your dogma demands but tax exempt status? Gone. Civil authority? Striped. The government will not condone or support it nor attach legal validity to it. Churches can not simply pick and choose which civil rights they will grant or deny.
This is not like the Catholic church refusing to marry a divorced Catholic where the law permits it but does not require it. That is not mere 'religious conviction' but a centuries old command in order to be or remain a Catholic. Sorry, but you don't just get to invent 'religious conviction' as a convenience to disobey the Constitution and refuse to marry an inter-racial couple who are members of your faith. Most obvious, a church may insist that it marry only members in good standing of it's own faith but a divorced Catholic is not a member in good standing. Mixed marriage okay; but the Catholic Church has a legal right to not marry one of it's own heretics and apostates. That first marriage can never be dissolved except by death – unless, of course, you are a rich Kennedy or Kerry with enough pelf to buy a “Catholic divorce” (annulment) such that it never happened. Children? Not to worry for Cannon Law has a convenient loophole to save them from bastardy. Money talks. Every brick of St. Peters was paid for by sale of indulgences. Annulment is just new wine in an old bottle. But dare to refuse marriage to an inter-racial and never divorced Catholic couple? BANG! Our laws will revoke tax exempt status and stip that church and cleric of all civil authority unless it treats all equally before the law.This is not my opinion. This is not editorial but report. It is the law! Why do you think Mormons may not legally practice bigamy even tough it was an original and essential part of Mormon teaching? Such clerics have no tax exemption and none of their marriages, of any color or stripe, are recognized by the government. (See “DOMA: Separation of Church State the Inevitable Battleground” and see “New York Marriage Equality Law Violates Federal Constitution.”)
I have said it before and will say it again: This faux debate is no more about marriage than the Monkey Trial was about monkeys. It is about religion insinuating itself into secular affairs. The unwritten Constitution of England may permit that but our Bill of Rights forbids it. That is why religious exceptions from the Constitution ultimately fail in the high court. The churches may marry or refuse to marry whomever they please but violate the Fourteenth Amendment to deny fundamental civil rights and equal protection, and they will loose their tax exempt status and be stripped of civil authority. They simply can not have it both ways.If they must wear two hats (religious cleric and civil functionary) their ultimate legal fealty must be to their constitution and not their religion. Otherwise follow your conscience but the civil hat comes off and the secular authority is forfeited. In America no cleric can ascend to civil authority while denying civil rights to one class of persons who are members of their religion. So, yes, religious freedom demands churches may refuse to marry whomever they want and the government can not order otherwise. However, the church my not do so while acting on behalf of the state, as an agent of the state. Their own Bible tells them: they may not serve two masters. So when they perform a secular act their fealty must be to the Constitution.
Still, all that said, isn't it interesting that from abolition of slavery and the slave trade, to ending racial discrimination, to marriage and civil unions, each advanced significantly faster in England which does have an established religion but much slower in the United States which unequivocally forbids any law respecting the establishment of religion.
Copyright © February 2013