# Another Gay marriage Q (minister paperwork related) **URL:** \ **Category:** Factual Questions\ **Created:** [December 28, 2008, 2:48am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910 "2008-12-28T02:48:04Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [December 28, 2008, 2:48am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/1 "2008-12-28T02:48:04Z")
I was in the midst of a little debate on gay marriage with a friend of mine and she tossed out a statement that surprised me. She claimed that per her minister, ministers at least in CA had to make some kind of official filing to “opt out” of performing gay marriages or live in fear of lawsuits from gay couples seeking marriage from them. This struck me as odd to say the least. Now I could see if they wanted to be disincluded from any lists of officiants willing to perform said ceremonies that there may be a filing with the city or county to be removed from such, but legal implications for refusal to perform said ceremony crosses SOCAS in a way that would push me hard towards the other side of the Prop 8 fight. The government has no business IMHO saying who we can and cannot marry and definitely no business telling a church who they can and cannot marry. She didn’t have any more relevant detail and my Google-fu is insufficent to the task. Whats The straight dope? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 28, 2008, 3:21am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/2 "2008-12-28T03:21:23Z")
Historically, religious officials have always had to option to refuse to perform marriage ceremonies. Many have refused to perform ceremonies between couples of different faiths or different races. Those not divorced in the eyes of the church may be refused marriage in that church. I’m sure there have been many other reasons given. Given this history I would be surprised if any state could legally force religious bodies to perform marriages that are contrary to their beliefs. Separation of church and state works both ways and is as much a protection of churches as it is of the state. So my WAG is that your girlfriend is misunderstanding something that anti-gay marriage forces kept putting out before the vote. [Here’s one example:](http://commonsensepoliticalthought.com/?p=2761) > [@](#): > > I have one, and really only one, concern. I want churches protected from criminal and civil liability if they refuse to perform a same-sex marriage. Many of our friends on the left pooh-pooh the idea that churches could be compelled to perform such, under the First Amendment, but seem strangely reticent to be willing to enact more explicit protections for churches in the event that same-sex marriages become legal. > > To me, it’s simple: it doesn’t take much imagination to guess what could happen if an interracial couple went to a church, and asked to be married, and the minister refused because his church does not believe in interracial marriages. That minister and his church would face being sued, because they had discriminated on race, and churches fit the definition of a public accommodation. Since we license ministers to perform marriages, they have a dual religious-state legal function. > > Well sooner or later, a same-sex couple is going to present themselves to a Catholic priest, and ask for a nuptial Mass. The priest will have no choice but to refuse, and he, and his parish, and his diocese will all get sued. A Ninth Circuit Court of Appeals ruling which undid a discharge under the military’s “don’t ask, don’t tell” policy held that classifications based on sexual orientation would be examined under a higher level of scrutiny, Patterico explains it here. This could mean that discrimination based on sexual orientation might be held to the same standard as discrimination based on race. This is complete nonsense. It reminds me of the debates during the attempted Equal Rights amendment when opponents told everyone that passage would require everybody to use the same bathrooms. I don’t know of any court decision that has forced ministers to marry couples against their will and beliefs. Tellingly, the hate groups don’t mention one either. There may be other repercussions. [This article](http://www.catholic.org/national/national_story.php?id=27817) mentions actual incidents that led to loss of tax-free status when religious groups refused same-sex couples the public accommodation they afford opposite-sex couples. Not at all the same thing, but just enough to extrapolate from. ---
**Author:** ![susan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/susan/32/17537_2.png) [@susan](https://boards.straightdope.com/u/susan)\ **Post date:** [December 28, 2008, 3:28am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/3 "2008-12-28T03:28:29Z")
I can only answer peripherally, in that in my experience, a potential religious officiant may refuse to marry any couple, gay or straight. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 28, 2008, 4:06am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/4 "2008-12-28T04:06:59Z")
It’s a lie. As the California Supreme Court explicitly stated in In re: Marriage Cases: > [@](#): > > … affording same-sex couples the opportunity to obtain the > designation of marriage will not impinge upon the religious freedom of any > religious organization, official, or any other person; no religion will be required to > change its religious policies or practices with regard to same-sex couples, and no > religious officiant will be required to solemnize a marriage in contravention of his > or her religious beliefs. In re: Marriage Cases 117, S147999. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 28, 2008, 4:19am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/5 "2008-12-28T04:19:05Z")
I’ll clarify a bit here. We need to make a distinction between public businesses and private religious organizations, and there’s not always a clear line. A public business cannot discriminate on the basis of sexual orientation, so if you had a wedding chapel business that married anyone who walked through the door, it probably would have been required to perform gay marriages. However, Prop 8 does nothing to address this issue. Since sexual orientation is now a suspect class subject to strict scrutiny, that wedding chapel is probably going to have perform gay domestic partnership ceremonies now. Private religious organizations, are of course, protected from this by both the California Constitution’s Art. I, Sec. 4 and the US Constitution’s First Amendment. ---
**Author:** ![susan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/susan/32/17537_2.png) [@susan](https://boards.straightdope.com/u/susan)\ **Post date:** [December 28, 2008, 4:22am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/6 "2008-12-28T04:22:22Z")
> [@](#): > > However, Prop 8 does nothing to address this issue. Since sexual orientation is now a suspect class subject to strict scrutiny, that wedding chapel is probably going to have perform gay domestic partnership ceremonies now. ??? Prop 8 _barred_ same-sex marriages, and homosexuality is _not_ a suspect class. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 28, 2008, 4:29am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/7 "2008-12-28T04:29:04Z")
> [@susan](#): > > ??? Prop 8 _barred_ same-sex marriages, and homosexuality is _not_ a suspect class. It is in California. From In re: Marriage: > [@](#): > > … we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — **a constitutionally suspect basis upon which to impose differential treatment** , and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple (emphasis added). Id. at 10. Whether or not Prop 8 bars same-sex marriages is independent of whether or not a public business can discriminate on the basis of sexual orientation. ---
**Author:** ![Ferret\_Herder](https://avatars.discourse-cdn.com/v4/letter/f/e47774/32.png) [@Ferret\_Herder](https://boards.straightdope.com/u/Ferret_Herder)\ **Post date:** [December 28, 2008, 4:31am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/8 "2008-12-28T04:31:22Z")
> [@susan](#): > > ??? Prop 8 _barred_ same-sex marriages, and homosexuality is _not_ a suspect class. I think this is referring to [domestic partnerships in California](http://en.wikipedia.org/wiki/Domestic_partnership_in_California). ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [December 28, 2008, 6:37am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/9 "2008-12-28T06:37:21Z")
You would have to look at it like this… In California, could a priest say “I won’t marry a person in a wheelchair.” or could he say “I won’t marry an Asian and a black woman.” If a priest in California could say that, then it is unlikely a priest would be required to perform same sex marriages. When classes are protected it becomes more involved. For instance if I work and my coworker is trying to convert me to become a Mormon, I could go to H/R and get a stop to it. Because that is creating a hostile working environment. However if this coworker was merely a Mormon, the fact that that person simply IS does not create a hostile working environment. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 28, 2008, 6:41am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/10 "2008-12-28T06:41:18Z")
I’ve been thinking about this a bit more, and I think that prior to the In re: Marriage Cases case, the public wedding chapel (not a private religious organization) would have still been required to perform a same-sex domestic partnership ceremony under the Unruh Civil Rights Act. It’s not quite my area of law, so if someone has more expertise, I’ll defer. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [December 28, 2008, 6:48am UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/11 "2008-12-28T06:48:36Z")
And another clarification. Domestic partnerships in California don’t require a solemnization ceremony. What I’m think of is a situation where a gay couple wants some public ceremony and they go to a public wedding chapel to have the ceremony done. Again, not quite my area of law, so I’ll defer to anyone with more expertise. ---
**Author:** ![tumbleddown](https://avatars.discourse-cdn.com/v4/letter/t/e9bcb4/32.png) [@tumbleddown](https://boards.straightdope.com/u/tumbleddown)\ **Post date:** [December 28, 2008, 3:23pm UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/12 "2008-12-28T15:23:18Z")
> [@Markxxx](#): > > You would have to look at it like this… > > In California, could a priest say “I won’t marry a person in a wheelchair.” It is, in fact, Catholic Canon law that a marriage should not be solemnized if the priest is aware that because of injury or deformity, one of the partners is incapable of sexual performance to consummate the union. There have been cases outside of the U.S. where this law has been held to, and paraplegics have been denied the sacrament. ([Cite](http://www.smh.com.au/news/unusual-tales/impotent-groom-told-not-in-church/2008/06/09/1212863524983.html)) I don’t know how this would be accepted in the U.S. and my guess is that rather than a canon lawsuit/appeal (not sure the technical terms for it) it would end up in a civil court, at least for a while. I know that there are plenty of churches, individual churches and pastors, not denominational rules, who would not perform a ceremony for an interracial couple. And clergy of all faiths routinely refuse to perform interfaith ceremonies. My rabbi is one. And I don’t think for a moment any clergyperson could be sued or legitimately complained about if they refused to perform a service for people who weren’t members of their congregation/denomination at all. So I think there’s certainly plenty of room to say that this notion that clergy had to specifically opt out of same-sex marriages or face legal repercussions flies in the face of pretty much everything we know about clergy and any presumed duty under law to perform marriage. And I’d also suggest that even public wedding chapels would have some discretion. The officiants in those chapels aren’t justices of the peace or some other type of public official, which means that their authority to perform marriages must relate to their ordination by some religious organization. If that religious organization prohibits its clergy to perform same-sex marriages, though I can’t imagine that it would ever happen, there could be a freedom of religion argument to apply even to public chapels. ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [December 29, 2008, 4:22pm UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/13 "2008-12-29T16:22:24Z")
Interesting and maybe kinda sad update: I asked if she could find out any more information in this filing and pointed out as tactfully as I could that perhaps this was a misinterpretation or perhaps an incomplete understanding on her part of the actual purpose of the filing or the reasons for the filing (she didn’t really know just that this "filing was to protect him from lawsuit). My guess was this business was licenced as some kind of “chapel o love” type outfit and he needed to refile if not reform the business to make it into a not so “public” business. This jives with a church name change she mentioned as well from something generic to something more specific to the faith. Unfortunately she also took this as an attack on her pastor and that I was just questioning this because I dislike religion, and that I was calling him a liar. I told her I was just more interested in the details because although I do support the rights of homosexuals to marry, if the consequences are to hold a legal gun to the head of organized religion in general (not just hers) then I start feeling like that is just as great if not a greater injustice than restricting gay marriage. She wasn’t hearing any of it… oh well, se if she ever speaks to me again… Funny thing is, I have known her for 14 years and seen her go through 3 religions. Wonder how long this one will last. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 29, 2008, 4:37pm UTC](https://boards.straightdope.com/t/another-gay-marriage-q-minister-paperwork-related/478910/14 "2008-12-29T16:37:32Z")
> [@tumbleddown](#): > > And I’d also suggest that even public wedding chapels would have some discretion. The officiants in those chapels aren’t justices of the peace or some other type of public official, which means that their authority to perform marriages must relate to their ordination by some religious organization. If that religious organization prohibits its clergy to perform same-sex marriages, though I can’t imagine that it would ever happen, there could be a freedom of religion argument to apply even to public chapels. No one is saying that religious officials must officiate at weddings at public wedding chapels that are contrary to the tenets of their religion. That would be illegal and for that reason is not happening. What is happening is that the government can take back the gift of tax-free status for those chapels. The chapels can stay in business and can discriminate in any other way that is legal. They just have to pay taxes like any other business if they do so. Legally and morally, that’s an enormous distinction.