Wednesday, July 06, 2005

Religious preferences?

Given the recent decision by the UCC to bless same-sex marriages, I became curious about the legal issues around the freedom to practice one's religion. After all, marriage is considered to be a very important part of most religions, whether it is a sacrament or only of ceremonial significance. Federal law seems to be very fuzzy in this regard. While the First Amendment guarantees the freedom of religion, various Supreme Court decisions have set precedent that the Federal government may limit religious actions and rituals if it has compelling reasons to do so. So it may be possible that the Defense of Marriage Act could be ruled constitutional because the government has some compelling reason. It is unclear to me what the exact definition of "compelling reasons" is, I'd appreciate any pointers.

Moving to my state of Indiana, Article 1, Section 4 of the state constitution states that "No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent." Indiana also has a law against same-sex marriage, which would seem to run counter to this constitutional right. The law gives preference to religions that ban same-sex marriage over religions that allow same-sex marriage, by legalizing one practice but making the other illegal.

(By the way, notice the wording of Article 1, Section 2. This Section was amended in 1984, and I'm guessing "ALMIGHTY GOD" was shoe-horned in at this point, much like "under God" was added to the Pledge of Allegiance in 1963, fifty years after it had been written.)


Daybreak said...

I'm not sure if federal or state law would have any bearing on the UCC decision, since as I understand it law only makes marriage a legally binding relationship, a contract if you will. So I presume that a UCC same-sex marriage would be akin to marrying in the church and not getting a license.

The most relevant SCOTUS decision would be the right of the state to regulate polygamy. I haven't read the decision but I would suspect that the state can only regulate the fact of polygamy not the rite itself. At the same time, I imagine that any religious rite that required an illegal act would be deemed unconstitutional for much the same reason: the state has a right to regulate unlawful acts. In that respect, protection of marriage acts would apply only if they are written in such a way as to make it illegal for same sex couples to go through a ceremony of marriage. As I understand it, these statutes and amendments only bar state recognition.


Scott Spiegelberg said...

In New York State, United Universalist ministers were arrested for solemnizing thirteen same-sex marriages. This charge was dismissed later, but the government has tried to break through this line.