My regrets for the length of this piece, first published at DamnYankee.com, but so much is at stake and much needs be said. I originally wrote this as a letter to The Weekly Standard after reading its 2006 article, “Banned in Boston – The coming conflict between same-sex marriage and religious liberty” by Maggie Gallagher, 05/15/2006, Volume 011, Issue 33. The magazine did not publish or acknowledge my letter. And so, I offer it here.
In Maggie Gallagher’s engaging and informative article about Catholic Charities of Boston in the wake of Goodridge (a decision from the Massachusetts Supreme Court), neither she nor any of the legal beagles she interviewed so much as mentioned the simplest solution of all. Churches can simply restrict themselves to performing the sacrament of marriage and forgo acting as agents of the State (with a capital ‘S’ to use Nock’s catch-all term) in certifying a couple’s intentions. Then, those churches interested in marrying same-sex couples but located in states that only recognize male-female marriages can confer the sacrament of marriage on any couple the church alone approves, and likewise for churches that recognize only male-female marriages in states where same-sex civil unions are sanctioned. Never mind that people, such as myself, who are not interested in the government’s sanction of anything we do, can even exchange conventional male-female vows in a non-controversial church ceremony and save the fee downtown.
If a church turns in its permit to certify the civil status of a union, couples married in the church but seeking government sanction as well can then go downtown, right after the wedding or years later, pay the fees, repeat their intentions before a state official if need be, and submit to the State’s blessing at their convenience.
People do the opposite all the time: They save a trip to the church alter and get their civil union, commonly called a marriage, certified at the town office after a religion-free ceremony at a banquet hall. Some even show up at a church years later and ask for a church ceremony, to make it right in the eyes of God. (And some never bother with either ceremony, opting for what we used to call a common-law marriage.) This is tolerated more in today’s American culture than ever before; we are collectively unperturbed by any arrangement of co-habitation.)
In this country, perhaps more than in others, we have adapted to a concept that a marriage is one thing and one thing only, that it is the exclusive privilege of the State to sanction, and that, as an option, a church can be called upon to bless it. This is incontrovertibly backwards. The experts Maggie Gallagher interviewed do not seem able to shake this misconception, and thus they predict endless debate and litigation. I wish they had re-examined the common American concept of marriage, which has been confused with the wedding ceremony and all its trappings. Marriage is the union of two people – perhaps even three or more if the state becomes whimsical about it; a wedding is the ceremony that results in a marriage along with the festivity that typically follows immediately afterward.
As for Catholic Charities and the mess they’re in in Boston, it only proves that no good deed goes unpunished. In this country, a church that wants the State to stay out of its affairs will stay out of the government’s affairs. A church that engages in commerce, as Marc Stern pointed out to Gallagher, invites the State’s scrutiny and interference. So too for a church that provides community services cooperatively or under contract with a government agency.
Why, then, does any church assume the civil authority to certify a marriage on the State’s behalf? It may well be rooted in the Middle Ages I suppose, but a joint statement of intentions made in a civil hearing and an exchange of vows in a sacramental ceremony are two distinct things with two separate purposes. In spite of what legislatures or courts may declare about the civil certification of a union, if churches in the United States would just stick to the sacrament and stay out of the civil certification process, they could always be entirely free to perform the sacrament of marriage according to their own rules and with couples they select and approve, without asking the government’s permission to do so! My wife and I, for instance, submitted to our church’s questioning and the related scrutiny of our suitability to become wed. Unless the State presumes to take over that responsibility and force all churches to follow one doctrine on any subject of the State’s choosing, a church still has the final say-so.
People who desire a religious blessing are free to marry in a church and may decline to register the marriage with the civil authorities. And any couple of any description is free to decline God’s blessing and find a civil authority willing to register their pledge (and willing, later, to accept their revocation of it). It is when the church functions as an agent of the State and combines the civil arrangement with the religious sacrament that the State has an interest in who is denied the State’s arrangement by being denied the sacrament.
A church may choose not to acknowledge a marriage certified outside its rules, and the State may choose not to recognize the marriage of a couple who have not paid the registration fee and obtained, of all things, a “license.” (Is that still required?)
A marriage not recognized by the State is no less a marriage in the eyes of God. Americans seem more concerned with the definition of marriage according to the IRS than the definition according to sacrament. But, in spite of what the Internal Revenue Code may say about it, and I’m not going to waste time searching the Code, even the IRS makes no demand of proof that a couple filing a joint tax return produce a civil license to call themselves married. In the several decades that my wife and I have been married we have never been called upon to show it and we don’t even have a copy of any such license.
I submit that Catholic Charities of Boston, if unable to reconcile the two definitions of marriage, must remain true to its own traditional definition. The church’s standards remain constant, or one can hope that they do, while the State is free to write a law declaring the union of peanut butter and jelly a marriage (requiring a permit), if it wants to. Not realistic? What about the union of three people, then? Is that so far-fetched? And how would a church handle a legislative or court definition like that? If some rich socialite can will her estate to her terrier, what’s to prevent the State from taking the next logical step and permitting her to marry the dog first?
If Massachusetts loses the services of the Catholic adoption agencies because the State has a better definition of marriage, and thereby a better definition of family, then let the State do a better job of handling adoption. That is, let the people of Massachusetts, who presumably are unperturbed by their elected representatives’ fiat in allowing the court to correct the church’s stodgy and now-erroneous definition, fork over the revenue that the State will need to go it alone in adoption services. The people of Massachusetts have said, through their representatives, that they don’t need the church’s help. Let them live with that decision.
It is plain that Massachusetts has, until now, consigned a number of children to Catholic Charities to be placed according to the church’s standards, or according to some standards jointly agreed upon. (And once placed, the children live under the parents’ standards.) The State now chooses no longer to consign children to that agency, (chooses in the sense that the agency felt compelled to close), because the agency’s standards, which are not changing with the whim of popular culture, were set centuries before there was a fickle legislature in Massachusetts with the voters’ assent to write ever-changing law.
Perhaps the next step will be for the State (of Massachusetts in this case) to follow up by visiting the homes where children have been adopted and ensuring that the adopting parents have the proper non-discrimination notices posted, thus assuring that the children rescued from Catholic Charities are subsequently protected from Catholic or Sunni or Hindu influence at home.
This is not a tirade against the exchange of devotional vows by homosexual couples, nor against adoption by homosexual singles or couples. (The latter — deciding who is suitable to adopt a child, is always the State’s sole responsibility.) This is merely a defense of the church’s right to remain unaffected by the State in the practice and promotion of its beliefs, and likewise an insistence that the State practice its shenanigans without regard for the sensitivities of any church. In either regard, that is as it should be.
Do I believe that homosexuals should not be parents? No, I do not believe that. Do I believe that homosexuals should endure State-sanctioned persecution? No, nor any persecution. Do I believe that the State, by prohibiting discrimination, will put an end to persecution? No. And that is where the State’s “solution” becomes insidious, for it is the State’s apparent belief that, by prohibiting discrimination and assiduously enforcing the prohibition, unlawful discrimination will evaporate. In its zeal, the State will neglect certain of its children, perhaps its most vulnerable citizens. It’s a legislative victory on behalf of those who feel stigmatized by society for their sexual orientation. It’s a tragedy, perhaps, for someone more vulnerable.
I do believe it is the duty of those whose activism brings about anti-discrimination legislation to concede that the law will not instantly change people’s perceptions or end discrimination overnight; to concede also that, while unlawful discrimination is not OK, there just may be a population more vulnerable than those whose grievance is redressed by a single act of a sacrosanct State, in this case, the decision of the Supreme Court of Massachusetts.
A vocal cadre of indignant activists, whatever cause they advocate, and a complicit legislature or crusading court, should always consider these realities. That’s not to say that they should jointly search out all possible affected parties and concoct grievances for them too, but only that they should jointly acknowledge, and let the law make allowance for, the fact that, as a society, we are somewhat like a small crowd jammed into an elevator. I shouldn’t be expected to accept having the point of your umbrella jammed into my foot, but I should accept being jostled a little. You should accept my unintentionally offensive odor, but I should take care to bathe daily so that there is at least a limit to how smelly I can be from day to day. And when the door opens and opportunity presents, we should put space, but not hatred, between ourselves.
What’s missing here is tolerance, or, as Maggie Gallagher quoted Marc Stern, “‘Live and let live’ is the only thing around the world that works.” Isn’t it fair to say that those protected by the anti-discrimination law, (the entire body of those protected, as distinct from their most vocal advocates), are chiefly seeking tolerance for what sets them apart? Isn’t it also fair to say that those thus protected owe their fellow citizens tolerance for their various beliefs and standards as well, however distasteful? That was briefly the objective in America, when the law set out to prohibit harmful acts and promote responsible action — before law became the monster it now is, dedicated to the eradication of any notice of obvious differences, the police state of political correctness. It should shame the Massachusetts legislature, and indeed, the people of Massachusetts who permit that body to represent them, that the chief beneficiaries of this new mess will be the lawyers, who will likewise miss the point of tolerance, to the considerable expense of the people whose taxes support them.
A church’s only role in American society, in order to assure First Amendment protection, is to preach its doctrine and exhort its listeners to faith and right action. Marc Stern agrees when he says, “Beyond speech, nothing is safe. People exhorted may then individually put their faith into practice without too much threat of State interference. But churches have become big business in America, some, no doubt, with more paid accountants than clergy. Concerted action, in contrast with individual action, makes a church appear very effective in its doctrine and charity, but it also calls the church to submit, account, and justify. I do not disapprove the State’s legitimate scrutiny of many churches’ big-business affairs, since the Constitution calls upon the federal government to regulate interstate commerce.
For churches worried about whimsical, peanut-butter-and-jelly definitions of marriage, why fret whether federal or state legislators will one day grant religion-based exemptions? This was a development that Robin Wilson speculated on in Gallagher’s article. Why not simply turn in your permits to confer civil status to a marriage and restrict yourselves to conducting religious ceremonies only? And offer newlyweds an instruction brochure explaining, for whatever town or municipality they’re in, how to register for a State license to be wed as well, either before or after the church blessing. For those few couples who still wait for their wedding night, they’ll have to choose whether the celebration of the sacrament constitutes the wedding or the hearing on their civil petition. That decision may depend more on whether they’re interested in the IRS benefits, probate, and insurance beneficiary status or in the blessing of God.
Even if the Roman Catholic Church in the United States, or in Massachusetts, gives up certifying the civil status of marriages, the result of Goodridge for Catholic Charities of Boston remains the same. Massachusetts voters have put them out of the adoption placement business. I’m glad I’m not a child-pawn in that state’s politics.