Archive for June, 2015

Same Sex Marriage & The Rights of Religious Opponents

by
Lewis D. Eigen

Now that the right of same sex marriage has been established in all States, attention should turn to dealing gracefully with the potential problem of sincerely religious Americans whose beliefs oppose same sex marriage. Supreme Court Justice Alito, in his dissent, described them as potentially a “new set of victims”. The potential problems for and with them fill the media ranging from the requirements of a civil servant to issue a marriage license to the classic wedding cake baker who does not want to aid and abet what she believes is a sin.

America has a choice. We can go though 20 or more years of litigation, rancor, polarization and political distraction from the other problems we face, or we can be creative, gracious, and compromising, and insure that homosexuals’ rights to marry and live as any other family are protected, and at the same time, not force sincere believers to personally participate in or abet an activity that they regard as immoral and sinful, contrary to the command of God. It will take some creative legislation at Federal, State and Local levels at a time when sane, rational, problem solving legislation is a scarce commodity.

This series suggests some direction for this potential legislation, and the methods of enforcement.

It is fairly clear from the Supreme Court opinion and existing law, that despite some politicians’ public rants, that no private religion that has been given the authority of the state to preside over a wedding, will have to perform a same sex marriage ceremony if the church, synagogue, mosque or other entity finds it contrary to the religion’s doctrine and beliefs. The individual parallel for government officials however is a potential problem and we first make suggestions to cope with that.

Not every legal problem must be solved by legislation and law enforcement. A good example is the annual potential problem of Christmas with the New York City police force. There must be a basic cadre of officers on duty during Christmas. Yet there are many Christian officers who attend Christmas Eve or Christmas Day religious activities. Most of this problem is, and has been for years, handled administratively and voluntarily. The Jewish, Moslem, atheist, and secular officers, by tradition, volunteer for the Christmas Eve and Christmas Day Shifts. This is done on a precinct by precinct basis. If there is not enough coverage, those Christian officers for whom Christmas is not as important tend to fill in and very rarely is some officer who is deeply religious and devout about Christmas required to work a Christmas shift.

For the justices of the peace and the other civil servants who have the authority and responsibility to perform civil marriages there can in MOST communities be an easy parallel solution. There are almost always, in any community, several people who are authorized to perform a civil wedding ceremony. Most judges of almost any level can do so. There is rarely only a single clerk who has that authority. It would not take much for each person with marriage officiating authority to make it known to the administrators that they would prefer not to officiate at same sex weddings. So when a gay couple comes to be married, the schedule can be so organized so that the officials that have no objections will perform the wedding ceremony and sign the papers.

In a smaller community, there may be only one or two clerks who perform marriages and they may be uncomfortable performing a same sex wedding ceremony. However there are a few judges in the community who might step in. The first constructive legislative recommendation I urge is that those communities in areas where the proportion of officials who are uncomfortable performing same sex weddings is large, have State and/or local legislation enacted giving MORE officials the authority to perform a wedding ceremony. Mayors often have this authority already, but it could be extended to deputy mayors, city managers, and heads of the major departments of the community government. There is no reason why court clerks should not be empowered to perform weddings, or librarians for that matter. The objective of the legislation should be to have a large enough pool of officials so that there would almost always be someone who did not mind same sex marriages was available to perform a wedding during official business hours.

Now there might be a little inconvenience for a same sex couple getting married. One example might be that they would have to go to the town library where the librarian will marry them, while a heterosexual couple could get married by the town clerk at City Hall. Now rabid advocates for equal rights for homosexuals might see this minor difference as discriminatory and so it is technically. However, this is where graciousness and societal comity comes in. Change can be very difficult for society, and if we are all a little tolerant and understanding—including those gays who in the past did not receive much tolerance, we will all be better off. If the families of the murder victims of the Charlestown church can find it in their hearts to forgive the perpetrator of such an atrocity, surely gays about to be married can be gracious about a slight delay when the “right” official can be found to perform their ceremony or if they have to make a short trip to another location.

To make these suggestions public policy and make the few overly rigid bureaucrats comfortable implementing these practices, State legislation is needed. That legislation (can only be 1 or 2 pages) should provide:

  • That every community government’s obligation is to have enough officials available during normal business hours who are willing to perform same sex marriages.
  • The community has the authority to grant to other civil servants and elected officials the authority to conduct civil weddings and to train them for such.
  • That the community governments should make all reasonable efforts to see to it that those officials who have a sincere religions belief opposing same sex marriage are not assigned or forced to perform such marriages unless there is no other way to perform the constitutionally required public service.
  • That same sex couples seeking to get married should make reasonable accommodations regarding short waiting times or change of location to perform their ceremony.
  • That all governments make reasonable efforts to establish an appointment system for weddings so that if any administrative adjustments need to be made for a same sex wedding they can be arranged without too much inconvenience to the couple to be wed.
  • That in the event that there is no reasonable effort that will assure someone to perform same sex marriage, a government employee may be required to perform such.

Simple legislation in each state such as this—and presumably drafted by more experienced legislators—would go a long way to eliminating the otherwise inevitable litigation and rancor. There will still be a little as, after all, every American has the right to sue any other American for anything, and there is always someone who finds a reason to litigate. However in this area there would be very few if this legislation were enacted. Also, while legislators tend never to close a barn door until after the animals have all gotten out and scattered, the impending problems are so obvious, certain, and so much in the news, that state legislators might even try and do something before the negative consequences are upon us. Further, there is really no one who would have very strong objections to this type of legislation.

Future articles will provide similar constructive suggestions for the other potential areas of conflict and rancor that can be anticipated with much larger numbers of same sex marriage.

June 29, 2015 at 2:45 PM Leave a comment


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