Tuesday, February 2, 2010

Freedom of Religion: for what? for whom?

Never say they did not go all Obama (yes, I just used it as a verb) on this.

As the Prop 8 trial continues in sunny California, supporters of same-sex marriage might have found common ground with their opponents: the language of religious freedom. Backed by Equality California and the California Council of Churches (strange bedfellows?), Senate Bill 906, introduced by Senator Mark Leno, protects clergy from performing any civil marriage that is contrary to the tenets of his or her faith and provides clear distinctions between civil and religious marriage in state law. In addition, refusals to perform such marriages will not result to any loss of tax exemptions for the religious institutions concerned.

Across the pond, the London Times has a story on the Equality Bill pending before the Parliament, sponsored by the leader of the House of Commons, Harriet Harman. The bill consolidates several existing anti-discrimination laws and limits the exemptions that can be availed of by institutions in hiring employees.

Forgetting centuries of bitter enmity between them, both the Church of England and the Catholic bishops of England and Wales have now joined forces in protesting this bill (or at least major aspects of it), fearing that they will be coerced to hire homosexuals, transsexuals and women (in the case of the Catholic priesthood), or face prosecution for refusal to do so. The Pope joined the fray recently, adding heft and more controversy to the mix, and stating that “…it [the bill] actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed.” He also urged the thirty-five Catholic bishops to make a stand against it. Interestingly, the Vatican attack was premised on “longstanding British tradition of free speech.” not freedom of religion.

My initial take on these are as follows: (I am thinking about these topics in the context of an incipient paper about free exercise and will blog about those in the future) First, I think this is the right move on the part of same-sex marriage movement. It might be a wild and wooly ride, but at the end of the road, as Prof. Mike Klarman is wont to say in class, official recognition of same-sex marriage is inevitable. That said, it doesn’t hurt to reduce the hostility that this sticky issue almost always generates in whatever kind of setting. Getting the clergy on board using religious freedom language is a great idea in fact. While there are lots of clergy who are against this in principle, there is also a good number who are liberal and farsighted enough to anticipate that perhaps fifty or sixty years from now, the church might think differently. In any case, church doctrine might be slow to evolve, but it does. This is in any case, a good middle ground. Second, I might have to agree with the Pope (not exactly on natural law grounds) and it also has to do with religious freedom. I refer to the freedom of churches or religious institutions, as opposed to individual believers, to decide what employment criteria to use for religious offices. The state cannot force women to become ordained priests or openly gay men to become bishops. I recognize that churches, or at least the Catholic Church in particular since I am most familiar with it, has not exactly been the bastion of enlightenment for many centuries. But as I have earlier mentioned, any changes to these kinds of doctrines must be done from within, and not imposed from without. Otherwise, we’d go back to the dark days of the Henry VIII-esque Act of Supremacy. We already know how that turned out. (We get the Church of England.)

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