What’s Wrong with the World

God help the Catholic Church on this one. The years of rationalizing and hair splitting about these issues are finally going to reap a whirlwind for Catholicism in the US if this gets started. Mainline Protestants? Who cares. They're mostly Gramscian sock puppets at this point.

It is seems to be more and more of a when a church gets sued for discriminating against a same sex couple and loses badly than an if. I hope these suggestions hold the line for the churches that take them seriously indefinitely. That this is, at worst, just a matter of having the right policies and following them. I fear they will not, and that even if they keep a same sex couple from suing and winning, they will not keep the government at bay. More so, I wonder if a church that did not take the proper precautions does lose to a same sex couple's charge of discriminatory treatment, that this will not be used by courts to take down churches that *did* take these precautions (similar to how Elane Photography is used by judges against every other Christian in the wedding industry sued for "discrimination"). Of course, the Church proper can never be defeated, but that does not mean its ability to act cannot be severely impaired (and the good it can do in society; likewise, severely impaired).

Catholic Church does not let its facilities for re-marriages of divorcées, I think. SO, the Catholic Church should be in a stronger position than re-marriage allowing Protestant churches.

If they are allowing the divorcees to receive Communion and treating them as members in good standing after remarrying or while living together in sin, but they won't let them get married in the church, they might get sued for that too! But I suspect the homosexuals will be more aggressive about bringing suit.

The point is that if your policy is, "Members in good standing can use our facilities for weddings and be married by our minister after undergoing premarital counseling," then you'd better be darned good and sure that you don't let anybody and his uncle be a member in good standing. And be consistent about it.

The point is that if your policy is, "Members in good standing can use our facilities for weddings and be married by our minister after undergoing premarital counseling,"

I have not run into a Catholic parish that has something that looks like that as a policy. That is, I have heard time and time again of priests exercising REAL decision authority over who does and who does not get to be married in their parish churches, and it's used for people the priest thinks is just not "there" in terms of marital intention. Now, I live in one of the most conservative dioceses in America, but I hear similar stuff from other places, too. Priests just don't say the church is open for weddings to "members in good standing", the concept of "good standing" isn't really something that is utilized in that respect, not in my experience. You can be a Catholic in fairly poor standing and get married if you demonstrate to the priest that you do actually intend the things essential to marriage. (More's the pity, frankly.) But priests simply don't treat the matter as devoid of their own decision-making role. They typically say something more like "you may well have some theoretical "right" to get married in some "theoretical" way, but I am not going to perform the ceremony unless I think it's the right thing to do, period.

I am sure this won't prevent the law suits, but it may prevent most of them from being successful. There will be, sadly, some priests trying to perform gay "weddings" because they disagree with Church teaching. The real question will be whether their bishops can them for it.

In the end, this situation is as old as Aesop, specifically the fable of a cat and a cock.

Catholic Church does not let its facilities for re-marriages of divorcées, I think. SO, the Catholic Church should be in a stronger position than re-marriage allowing Protestant churches.

What Lydia said, but also a key difference is that many Protestant churches have a separate concept of church membership versus membership in the congregation. In many, perhaps most, membership is more of a legal and social thing beyond merely being in the congregation. This makes them harder targets because you can't simply show up as a baptized protestant and start throwing your weight around.

Tony makes a good point, and it might help a lot for any church to make that "discretion of the clergy" clause explicit. It could even be spelled out at greater length--"The use of our church premises and/or the participation of our clergy is a privilege, not a right. That privilege will be accorded on a case by case basis based upon the pastor's discretionary conclusion concerning the couple's intentions, the nature of their relationship, and their commitment to Christ." Something to that effect could even be a simple fix, especially if the church could show that it had been applied to deny weddings to some who had asked. IMO this should be applied to cohabiting couples as well, by the way.

Mike T is also right. Church membership is sometimes formally conferred in Protestant churches. (A ceremony called the "right hand of fellowship" is used for this in conservative Baptist churches.)

"The years of rationalizing and hair splitting about these issues are finally going to reap a whirlwind for Catholicism in the US if this gets started."

The Church has not been rationalizing and hair-splitting. It is the rest of the world that has adopted an, "anything goes," policy. There are subtleties in these issues that the Church cannot ignore, but the world has painted the issue so black-and-white that it is deaf to the nuances needed to exercise both justice and charity, rightly.

Sadly, there is no Protestant consensus on these issues. That, more than anything else, is making these issues moving targets. Everyone knows the teachings of the Catholic Church. If individual pastors occasionally slip or have issues with the teachings, that is not grounds for jumping to the conclusion that the Church has changed its teachings and cannot be used as a strong defense in a lawsuit. Some people are just idiots when it comes to obeying clear teachings and any judge who would, likewise, allow an idiotic example to serve as a general teaching is, himself, either an ideologue or not fit for office.

The virtue of obedience to lawful authority is important in the Catholic Church and civil judges are not even on the Church's radar when it comes to moral calculus. Simply put, the answer is always and everywhere, "No," to homosexual marriages in the Catholic Church. Every judge knows this, or should. If they try any hanky-panky in this regards, they may win for a time, but the Hound of Heaven will harass them for the rest of their lives.

I know this sounds strong and I may be in a bad mood, but I am fed up with idiots and numbskulls exercising moral judgments in public office who could not reason their way out of a paper bag of right and wrong. If I am not critical of them now, I do them a disservice of Biblical proportions. We must speak and damn the consequences. God will call them to account at the end, but he will also call us to account for our silence, if we do not speak.

As for marriage in the Catholic Church, any homosexual couple even trying to get married in the Church has, automatically, disqualified themselves for marriage, because one of the pre-suppositions for marriage in the Church is that one intends to live a life of obedience to Church teachings. End of story. Any homosexual couple applying for marriage would be denied, a priori, for this very reason.

For example, from the Code of Canon Law:

Can. 1066 Before a marriage is celebrated, it must be evident that nothing stands in the way of its valid and licit celebration.

Can. 1069 All the faithful are obliged to reveal any impediments they know about to the pastor or local ordinary before the celebration of the marriage.

Ca. 1071 §2. The local ordinary is not to grant permission to assist at the marriage of a person who has notoriously rejected the Catholic faith unless the norms mentioned in ⇒ can. 1125 have been observed with necessary adaptation.

Can. 1073 A diriment impediment renders a person unqualified to contract marriage validly.

Can. 1074 An impediment which can be proven in the external forum is considered to be public; otherwise it is occult.

Can. 1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.

Need I go on? Post this list at every Church entrance. It is clear what the Church expects in a marriage. That some off-the-deep-end liberal prelates are trying to modify (and they will lose) these teachings, especially with regards to the divorced and remarried, is obscene. Nevertheless, no judge in his right mind should even entertain a suit because a Catholic priest refuses to perform an invalid or simulation of a sacrament.

Stalin, once, famously asked, "How many divisions does the Pope have?" I, sincerely, hope that judges in the U. S. don't think they can ask the equivalent legal question. They will find out what Stalin did - that God is not mocked.

The Chicken

The Church has not been rationalizing and hair-splitting. It is the rest of the world that has adopted an, "anything goes," policy. There are subtleties in these issues that the Church cannot ignore, but the world has painted the issue so black-and-white that it is deaf to the nuances needed to exercise both justice and charity, rightly.

One black and white issue the Catholic Church has ignored is that a man whose desires are essentially homosexual is sufficiently disordered to not be a candidate for the priesthood. Church leaders are allowed to be sinners, but are not supposed to be sinners who have a marked intrinsic and severe disordering in their appetites.

Citing canon law is all well and good, but it's irrelevant to Lydia's point. The courts will not judge the teachings, but the actual behavior of churches. The Catholic religion can teach the straight and narrow all day about homosexuality, but in the end it won't matter if a particular church in communion with Rome takes a lax approach to church government. One of the ways constitutional law damns us here is that by being unable to judge the teachings of the religion, it can only judge the observed practice. Therefore "we are hypocrites" is not a good defense.

I think Tony has a good point about pastoral discretion in marriages, especially if specific instances where that has been exercised can be cited.

I still think that there is a potential problem in the type of case Darwin Catholic describes where everybody has been playing the Three Monkeys (hear no evil, see no evil, say no evil) concerning some well-known gay couple in the church, treated them as full-fledged and respected members of the body of believers, and then won't marry them. Consider that one such man was labeled a "saint" by a Catholic blogger a year or two ago (cough cough) and that said blogger was positively nasty about anyone who suggested that his living with a homosexual partner was scandalous. The Catholic church in question had him on staff (I believe unpaid) as a music teacher of some sort. After his death, his "partner" said that their first "date" was to that Catholic church. And conservatives had, "It's none of your business!" thundered in their faces if they dared to question the propriety of this relationship. What about _that_? What if _that_ couple asked to be married in that church? Here's your church's own music teacher, whom everybody fawns over and lauds (I believe he was a well-known opera critic), and he's openly homosexual and lives with his "partner" who calls them "monks in love" and says they go on "dates" to church, and you won't "marry" them in the church? I doubt that a judge would just *throw out* a lawsuit in a case like that. The church might well be able to win it, but it could be a genuine nuisance suit and costly to defend, because of the inconsistency of the parish's approach to this so-called "couple."

Your church's policy will be to let members in good standing use the church for weddings. You are nonetheless discriminating against them. Ergo, you are not abiding by your own church policies and are discriminating.

Again, I'm not a lawyer nor do I play one on the internet. Still, the scenario you are describing seems to be the most blatant violation of church and state separation imaginable. Someone brought up a similar thought experiment during the Obergefell case and it was made explicit that discrimination law cannot intervene using the example of rabbis who refuse to marry any couple who aren't both Jewish. As far as I'm aware pastoral discretion is automatically assumed by the courts in sacramental matters, if there is a grievance with a wedding policy and how it is or isn't followed it is entirely up to the church hierarchy to fix it, not the courts. I know you all dislike the comparison to racial discrimination but for illustration purposes it is by far the strongest and farthest reaching of all the suspect classes for discrimination. It is presumably safe to say there are a few black supremacist and white supremacist churches that forbid all mixed-race marriages. The courts can't say diddly squat about changing those church policies pertaining to religious sacraments even on racial matters, they simply have no jurisdiction. The courts can of course affect some policies related to primarily secular activities and this is especially true when you are talking about a religiously affiliated institution rather than the church itself.

Step2, it certainly ought to be that way, but I think the scenario Darwin Catholic raises is nonetheless plausible, if only because some churches really do allow their members normally to use their facilities for weddings. Even if the pastor himself refuses to perform the wedding, a court might consider the claim that the church must be allowed to be used as a venue if the normal church policy is to allow members so to use it.

In fact, churches need to be very careful here, because they might walk into the punch by the very act of trying to protect themselves. For example, suppose that a church deliberately wrote up a policy (when they never had one before) saying that _only_ members can use their facilities for weddings. They think, "That took care of that." But then, suppose that they have homosexual members who are not celibate and don't do anything about that. (Again, this assumes a concept of membership that may apply more to some churches than others, but there certainly are churches to which it would apply.) The very existence of the policy that was supposed to be protective might be used against them if it were interpreted to mean that _all_ and _only_ members could use the church facilities for weddings. In fact, it might even be worded in such a way as to encourage that interpretation ("all members in good standing may use the church facilities for their weddings as long as they are not divorced and are willing to undergo premarital counseling with a member of the pastoral staff, but if neither member of the couple is a member in good standing of X Baptist Church, the church facilities are not available for use") and if they then dropped the ball on church discipline, the policy itself could be their downfall.

It is already the case in Illinois that churches who allow their facilities to be used for a fee are prima facie subject to public accommodations laws and are in an extremely open-ended situation as to whether they can "discriminate" against homosexual couples, due to IL's "marriage fairness act." So this issue of facility use and discrimination is very much live, and complete church discretion and freedom cannot be assumed

http://www.chicagobusiness.com/article/20130214/OPINION/130219864/in-redefining-marriage-religious-freedom-is-at-stake.

See also here:

http://illinoisfamily.org/religious/recommended-bylaw-changes-for-churches/

Would not only allowing marriages that meet a church's definition of a valid marriage be sufficient?
as long as race wasn't an issue (and no Christian church would have that problem anyway). That might mean forgoing a small amount of income but that shouldn't be a problem. Now that the Supremes have sung, internal matters are where the energies of those religious folks who oppose SSM will be most productively directed.

"They will find out what Stalin did - that God is not mocked."

MC - ??? Stalin won (thanks to 20 million Russians and stakhanovite workers in Detroit, Magnitogorsk, and El Segundo) but he did win. Did you mean something else?

Would not only allowing marriages that meet a church's definition of a valid marriage be sufficient?

Maybe, maybe not. Depends on whether and in what ways the courts decide to consider the church a public accommodation.

as long as race wasn't an issue (and no Christian church would have that problem anyway)

None that I would respect, but presumably some "religious body" might. But it's interesting you should bring this up, Al, because it seems that you _are_ envisaging the religious bodies as being covered by statutes against protected class discrimination in some way, shape, or form. Which means that, if homosexuals have protected class status, this tends to undermine your implication that it would be "sufficient" simply to declare that homosexual weddings aren't considered valid and hence can't take place on the grounds of that religious body.

That might mean forgoing a small amount of income but that shouldn't be a problem.

Which I take to confirm that this is potentially an issue if the church gets a "small amount of income" in a way that allows a court to play "gotcha."

There are, in fact, quite a number of ways this could play out, already in play, already very much live possibilities, that would not leave a church free to "discriminate" against a homosexual couple, _at least_ as regards use of the facilities.

I think Al actually _is_ a lawyer, so I take his suggestion that a church would _not_ be allowed to discriminate in its marriage policies (as far as facility use) on the basis of race to be rather significant, especially since Step2 made a layman's guess that a church _would_ be allowed so to discriminate.

The point is not that I'm all eager for churches to discriminate racially. Obviously, I'm not. But to the extent that "sexual orientation" is treated legally in some legal venue as equivalent to race for purposes of non-discrimination law, the point is highly relevant.

Just trying to follow along here, but it might very well be the case that anti-discrimination law prevents any church from not holding the wedding of an interracial couple because they are an interracial couple?

Of course, not holding the wedding of an interracial couple because they are an interracial couple is a horrible thing. It would be a shame if this is the case and this precedent is used against churches that will not allow a same sex "wedding" ceremony in their building because sexual orientation becomes legally the same as race. Granted, that still is not enough because it does not logically follow that not holding a same sex "wedding" is discrimination on the basis of sexual orientation, but the law has become to mean that regardless of the internal logic.

I assume the Obergefell opinion paves the way for sexual orientation being a suspect classification, so that is probably 2 years away give or take. The "logic" that says one discriminates against another based on their sexual orientation by not recognizing their same sex relationship as a marriage works both ways after all, and the "marriage" part is now a "fundamental right". It only follows that not being discriminated against based on your sexual orientation too must be a fundamental right.

Yes, I think it's entirely possible that a church _would_ be sued for refusal to allow an interracial couple to have a wedding on the premises. It would depend on a lot of things. E.g. Does the church rents its premises to the Boy Scouts or any other outside group? Are the couple members? What policies does the church have in place otherwise on use of facilities for members and non-members? If the church either by practice or written policy allows all other members to use the facilities for weddings, and the couple are members, that could be used as a ground for suit. If the church allows outsiders or outside groups to use the facilities for a fee, then they might be considered generally a "public accommodation," and that could be the ground. And so forth.

Why that couldn't also be done in the case of homosexual "marriages"...? Well, why not?

Maybe a church could craft a written policy that would get around that, especially if the church _doesn't_ rent to outsiders.

An interesting point here, though, is whether that can be separated from church discipline. CAn a church say, "We think this relationship is immoral, which is why you can't have a wedding here celebrating this relationship" while not acting in other ways as if that relationship is immoral? Maybe they can, maybe not.

One big difference between homosexual "weddings" and interracial weddings is simply that the latter is not an issue. Maybe there are a few churches that will not marry interracial couples, but they are so few and far between and hard to even catch that they are not worth the trouble. The same could not at be said about homosexual "weddings". I think there is some possible legal equivalence, but when push comes to shove...I am uncertain they are practically similar enough. Churches are considered the main, organized opposition to so called gay rights after all. Whereas, they are largely credited as being on the side of civil rights. I dont see why those things could not be an issue for homosexual "marriages" and I suspect they are far more likely to be than for marriages between people of different races.

All true. It's just that *if* we have reason to believe that a church would *not* be allowed to "discriminate" against an interracial wedding under such-and-such circumstance when it comes to the use of facilities, then given the legal set-up in many venues we have some reason to think that under parallel circs. they would not be allowed to "discriminate" against a homosexual "wedding."

By the way, I _suspect_ that the first line of attack would be use of facilities, rather than the clergyman's personal participation. A much easier mark to hit.

And in fact you'll notice that most of the time when we are accused of fear-mongering, the _main_ point pushed (see Step2's rabbi example above from the oral arguments) is that clergymen will not personally be required to officiate at weddings that go against their consciences. I will be honest and say that even there, if they *take money for it* and bill it in any way that could be construed as a commercial service generally available, they could be toast. But if they keep it more restricted, that may be true. Facilities are a whole different matter, and there is a reason why those crying "fear mongering" less often promise a blue streak that churches and houses of worship will never be forced to allow the use of their facilities against their consciences. In fact, note this point in reference to the Illinois law I mentioned above, out of their own mouths:

A senior staff attorney for Lambda Legal stated during a Senate hearing on Feb. 5 that any dispute that a church has in renting out its property to a same-sex couple “would be adjudicated by either administrative agency or court.”

How very reassuring.

In fact, churches need to be very careful here, because they might walk into the punch by the very act of trying to protect themselves. For example, suppose that a church deliberately wrote up a policy (when they never had one before)

That's pretty much what I was thinking too. A church needs to be very thoughtful about what it is trying to do, and the legal landscape in which it is doing it. Sometimes less is more - more effective, anyway. (Just as an example, instead of an employer saying "we decline to employ you because you are gay", he could just as easily have said "we decline to employ you" and leave it at that - the latter is not in any sense discrimination toward a class.)

In general, a minister probably needs to be able to say (if challenged) reliably and honestly that the reason for his refusal is religious. That may imply an explicit stated policy that spells out what kinds of weddings will be refused, but it may not also. It may be enough that the church have a standard about marriage from which his refusals are clearly and rationally drawn. Or it may be that, as Lydia suggests, the "policy" is more like "it is in Pastor Bill's discretion when to do a wedding", but my sense is that this by itself won't survive a challenge, it needs to be grounded in a more definite _religious_ tenet. Maybe "whatever the pastor identifies as being non-Biblical will be rejected."

And then you need to have no weddings on the premises that aren't approved by Pastor Bill. That's important, because otherwise they'll just say, "No, you don't have to officiate, and we don't care if you don't think it's a real wedding or whatever weird religious beliefs you have, but that's a luuuverly building you have there, and we wants to use it, my Precious, or we'll sue, yes we will."

"No, you don't have to officiate, and we don't care if you don't think it's a real wedding or whatever weird religious beliefs you have, but that's a luuuverly building you have there, and we wants to use it, my Precious, or we'll sue, yes we will."

The Gollum reference is appropriate because you may recall homosexual and mediocre football player Michael Sam proposing "marriage" at St. Peter's basilica. Charity obligates me to avoid assuming all homosexuals are full of spite, but those aren't the ones curches have to worry about. Malicious homosexuals can lose 1000 batlles to force use of your facility; they only have to win once.

"MC - ??? Stalin won (thanks to 20 million Russians and stakhanovite workers in Detroit, Magnitogorsk, and El Segundo) but he did win. Did you mean something else?"

Stalin is dead and the Church goes on. The Soviet Union dissolved and the Church goes on.

The Chicken

http://www.slate.com/blogs/outward/2015/07/16/sexual_orientation_discrimination_at_work_eeoc_says_it_s_illegal_under_federal.html

Apparently the EEOC has ruled that sex orientation discrimination fits under sex discrimination and is thus already illegal nationwide under the civil rights act. This story does not seem to have picked up much steam yet, maybe because its the EEOC the implications are much less than if it were passed by Congress or by the Supreme Court (I dont know). If it doesnt, it probably does foreshadow a supreme court opinion coming to the same conclusion (and that may have a bigger impact on churches and religious institutions than Obergefell).