Wednesday, January 14, 2015

Protection is sometimes not needed until it is. A bill to protect the clergy

Yesterday I commented on one of  Wyoming's, indeed the entire West's, perennial bad ideas, that being that the Federal government should give (not sell) its land holdings in the West to the state's where they're located.  My suspicion is that this makes us look foolish in the extreme in the East, where the citizenry wishes that they had what we had, and also knows that they are included in the putative landowners whose property we seek to expropriate gratis from the Federal government.

Today, however, I'm commenting on something that goes the other way, that being a bill that's in the legislature which would protect a person from suit who will not preside over a same gender marriage.  The Tribune editorialized in opposition to this bill the other day.

That editorial was extremely telling, really, as it shows the mindset of those who just don't grasp this issue. Starting off with the claim that there are no worries, as the 1st Amendment to the U.S. Constitution protects anyone in that position, it then goes on to express the view that the bill is just sour grapes as a Federal judge forced this on the state, and that same gender unions are good for marriage overall.  So, in one fell swoop the editorial actually states the fears that this bill seeks to address, those being that:  1)  the Federal courts can make something that was never conceived of as being legal the law overnight, and 2) if you don't agree with this change you ought to, so you have no legitimate complaint anyhow.

Beyond that, this is the first inkling of a concern by those who backed this change (as the Tribune did) that its likely be extremely temporary.  The elephant in the room on this issue is that that U.S. Supreme Court hasn't ruled on it yet, but is likely to do so in the next two terms, and when it does, it's probable that the ruling will either uphold prior state laws or the Court will hold that the entire issue doesn't belong in Federal court at all, and remand all of it to the states.  In that case, the local ruling would basically evaporate overnight and it would become a state issue.  Nobody really knows what the Wyoming Supreme Court would do with this issue, but its pretty certain that the legislature would not be in favor of any changes in the reading of the law.

So what about the first point in the editorial. Is the Tribune right?

Well, maybe it is, and maybe it isn't.  We need to also keep in mind that there's a bill also pending in the legislature which would prohibit discrimination based upon a person's orientation.  People everywhere in the US tend to already think that this is the law, and most people aren't in favor of any kind of real discrimination, but that actually isn't the law.  Chances are that it will be, either legislatively our through court action in the foreseeable future.

For most people, that actually won't matter, but there are a collection of people for whom this creates a moral crisis.  And its one that isn't often understood and is unfairly dismissed by those who don't look at it.

To start with, its very clearly a problem for ministers of most monotheistic religions that hold the long established theology of their faiths.  Judaism, Christianity, and Islam all regard the conduct that this surrounds as sinful, and none of them regard marriages between same gender couples as valid.  Now, before somebody seeks to correct me, I do concede of course that there are present examples of individuals in Judaism and Christianity, including their ministers, who hold the opposite view, but they are all reformist in some manner.  That is, in order to take that view, they have to qualify or reinterpret part of what was very long held doctrine.

Now this post isn't intended to be a theology treatise, which I'm not qualified to attempt to do in depth anyhow, but rather to note the next item, which is that Conservative and Orthodox Jewish Rabbis, Muslim mullahs, and ministers in the Catholic, Orthodox and some Protestant denominations hold the view that same gender unions cannot be regarded as marriages and that they cannot perform them.  Indeed, they'd regard preforming them as an immoral act with enormous personal consequences.

Beyond that, members of these various faiths, at least in some cases, also hold the views that cooperating in such unions is itself a species of religious fraud, as it gives evidence that they, as loyal members of their faiths, disagree with the faith.  Frankly, the average person in most faiths seems able to ignore big chunks of it if they're average members, but for those who are serious about their faiths, this can present a very real problem if they're asked to participate in some fashion, which can include everything from simply attending to being asked to provide some sort of service, like photographs or a cake.

Because so many people have very casual views about everything in this area, the fact that this can in fact create a moral crisis is lost to many people.  Indeed, many people are pretty comfortable with a judge ordering a priest or rabbi to do something, as they feel "well, he doesn't have to believe. . but what's the harm. . .".  And a larger group yet is very comfortable with the idea, for example, that a Jewish bakery can be ordered to provide a cake, as to not do so would be "mean", or that a Catholic flower shop can be ordered to provide flowers, as to not do so is hateful.

But if any of those individuals feel otherwise, and they stick to their guns, the full sanction of the law could impact them, as it already has in some states where the law has changed, in so far as laymen are concerned.

And, as touched on earlier, this is already a present problem, at least on a theoretical basis, for those who hold clerk positions.  If a young Muslim woman is working in a county clerk's office and is asked to issue a marriage license, can she get canned if she refuses and it has to go to another clerk?  What if a Greek Orthodox judge decides that he doesn't want to preside over civil unions in his courthouse?  Is that the end for him?

It could be.

The Tribune, which has sued more than once when it feels its Constitutional rights are being trampled upon, feels that the 1st Amendment neatly solves all of this.  The 1st Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
All the 1st Amendment really says, of course, regarding religions is that no U.S. state was to go down the same road that England, Scotland, Norway, Sweden, or Denmark had, and make a certain religion the state religion.  Indeed, of significance to this discussion, in each of those instances the establishment of a state religion came about when the state acted to overthrow the religions establishment of the country and get it to do something it wasn't going to do voluntarily, so in essence the state acted to tell the established church what to do.

The First Amendment has been interpreted, of course, to allow "the free exercise" of any faith, and the Tribune's thought is that as this is the case, everyone is protected. And the Tribune might be 100% correct.  Having said that, the states in fact do already restrict the free exercise of religion  and always have.  While I'm not advocating for a change in this particular aspect of state law (although that's coming about through court action anyhow) one such example is in that marriages are limited to one spouse a piece.  What are sometimes referred to as "fundamentalist Mormons" believe that one man should be able to have multiple wives.  Muslims believe that one man can have up to seven wives, although their faith doesn't mandate that they do so.  Other examples could be found.

It's safe to say, in any event, that sooner or later some priest, rabbi or mullah would get sued for refusing to preside over a same gender union.  And some flower shop, bakery, caterer, or banquet hall would as well.  It'd be inevitable.  Maybe the First Amendment would operate to protect them, it probably would, but to be concerned that it might not, or to feel that added protection might be in order, isn't unreasonable.

The truth of the matter is that Americans have sort of a dual religiosity and the United States is a fairly religious nation.  But part of that is that there's sort of a widely held civil religion that's relativistic and which holds tolerance of everything and being nice to everyone as a primary virtue, without looking at any one topic too deeply.  For the thousands, and maybe millions, who also take the tenants of their faiths seriously, however, there are lines they cannot cross.  For most Americans, up until now, that's mattered little, although again there are tens of thousands and maybe millions who have actually do face trials of one kind or another of this type everyday, where things that they'd reject have crept into civil life over the decades.  But what we've seen recently has come as a court made, in part, revolution and has placed these conflicts squarely in issue.  The early history, indeed over half of our history, was marked by extremely deep religious bigotry  in which certainly Catholicism and Judaism were deeply despised, and even Puritans could find themselves facing the death penalty for passing over a colonial boundary (giving us a rare early example of women being executed in what would become the United States).  Without some protection for those who hold deeply held believes that do not square with civil trends, we face returning, to some degree, to that era in a more minor way, with the enforces of the civil religion oppressing the holders of other religious views.

Now, of course, the bill might not actually be effective.  But some protection is at least worth affording.

1 comment:

Pat and Marcus said...

Apparently there are actually two such bills, one protects clergy alone, and the other is broader.

Reading the article on it in the Tribune its difficult not to see subtle viewpoints coming in. The Tribune's article was fair, but in its quotes by those opposing these bills you basically do get the point that the Tribune feels that the bills are species of bigotry, and fails to really grasp that anyone can be be faced into what an individual might regards as a moral compromise in this area.