This topic is an offshoot of the threads I started that also went into my advocacy for the government to enable married Catholic men to enter the priesthood. See Priests Fornicating, Bishops not Removing Them and Married Priests in 60 Minutes. I hope Gaudere does not object to this new thread, because the topic is more broad.
I read just yesterday evening that the Ontario appeals court has rendered a decision whereby same sex marriage is allowed. There is a paragraph in that news item that legal experts in Canada are predicting that parliaments in Canada would enact laws whereby churches would be allowed to refuse marriage to such people of the same sex.
The point that attracted my attention is the idea of legal experts there that government will have to enable churches there to refuse such marriages to same sex people.
It seems obvious that for legal experts there, the state is over the church or the state is in charge of religion: it decides what religion may not refuse when an act is already allowed by legislation or equivalent enactment as with court’s decisions. Thus, once gay and lesbian marriages are allowed and become a right of the citizenry; it is binding upon religion to also officiate such marriages, unless the state has by a correlative enactment dispenses religion from such a duty on religious grounds.
Coming to ordination of Catholic married men, it would seem that the state has the power to lift the celibacy requirement of the Catholic Church for candidates to the priesthood, on civil rights grounds of course; if we follow through from the Canadian legal experts’ idea of the need to make a law enabling churches to refuse same sex marriages.
My position is that as a principle the modern secularist and democratic state like Canada and the U.S.A. proceeds from the standpoint that it is superior to church or to religion; whatever freedom of religion it adheres to as to a basic rule of governance, it does so as a concession, not as in recognition of an innate right of church or religion to beliefs and practices it advances and imposes on its adherents.
This thread is not intended to be a debate, but just a discussion, a search for views similar to mine or different or even contrary, but all in a spirit of sharing. So, please let us all remain focused on the issue and avoid emotional overtones.
I am sure many can see the fallacies incurred in my simple and straightforward reasoning. I know myself that there are fallacies drawn in; but there seems to be some convincing strength in my pleading.
But I’m reasonably sure that Canadian law permits a person to marry again following a civil divorce. I’m equally sure that the Roman Catholic church in Canada is not obligated as a matter of law to perform or recognize a marriage under such circumstances; the Church would undoubtedly require a finding of nullity as to the first apparent marriage.
For this reason, I am confident that your inference is inaccurate: that civil law in Canada does not force a particular church to offer marriage services or recognition to any couple merely because they are eligible to marry under secular law.
Your inference being inaccurate, there remains little to debate except that which is already covered in one of your other threads.
I totally disagree. Nobody is forced to become a priest, nor to go to church to get married. So, the state has no business regulating what the churches should be allowed to do or not. If I belong to some club/association which require all his members to wear red hats, there’s no reason I could ask the government to change this rule just because I don’t like red hats. That’s a private issue between the members, and I’m in no way forced to belong to this club.
Beside, if someone believes that priests should be allowed to get married, or that religious marriages for gay should be allowed, then the solution is easy : they just have to found their own church, which would follow all the other rules of the RCC, except that priests could be married. Or they could find another church/pastor who will accept to marry gay people (there are some).
I can’t see in what way it’s the government bussiness to regulate religious beliefs (except in the case they would imply criminal behaviors). Then what? Forcing the RCC not to follow the Pope’s decision because it’s not a democratic system? Forbid imams to say that muslims shouldn’t drink alcohol because alcohol isn’t legally forbidden? Deciding that christian churches must allow the worship of Ganesh in their buildings because otherwise it would be religious discrimination?
Getting married in a church is a purely individual choice. Prefering a given church is also an individual choice. There’s no reason the state should be able to force a given religious organization to perform a given action. It wouldn’t be very different from the state stating that you can get married by me in my house if you wanted to. Honestly it wouldn’t make much of a difference.
And finally, it would mean that the governement is regulating and endorsing religion, since it would decide which religious beliefs are right and which are wrong.
Let’s put the question of Catholic married men and ordination to the priesthood in abeyance.
I am still looking for information on Canadian law experts feeling that legislation has to be made to dispense churches from having to officiate at same sex marriages on religious grounds. The preliminary principles seems to be that churches have to follow suit with court’s decisions and eventually with statutory laws on the right of same sex people to enter into legal marriages.
Thanks to you, Bricker and Clairo, for your reactions. I hope I will get more learning with this discussion.
Well, I think you are misunderstanding the legal principles at play in the US and Canada – which BTW have distinct legal traditions and systems, even though both derive from English Common law.
The Canadian case – and indeed the case of gay marriage in general – is not about the State’s power to regulate the Church, it’s about State power to regulate Civil Marriage – i.e. that instrument of civil law that establishes legitimate family relationships for common property and inheritance purposes.
In both the USA and Canada, and in most of the West, Church-performed (or any religiously-performed) matrimony is recognized as being an accepted form of establishing a legal marriage by a specific article of law. It is still the State, through a license filed at the proper civil office, that officializes the marriage-- it just empowers the minister/priest/rabbi to be the one who signs the document. No “primacy” involved, just that the civil contract of marriage and the sacrament of matrimony are two parallel things.
The principle apparently at work in Canada is that by default every institution/employer/agency must grant absolutely equal rights to every citizen, unless specifically exempted, thus the concern about having to exempt churches from being required to perform gay marriages. Since if you are going to apply “equal rights” in an absolute sense it means EVERYONE from the Crown down to the corner market has to recognize your marriage as valid, it could be interpreted as that Churches could be forced into violating their own commandments. Thus, the need for a specific exemption.
In the USA, the constitutional precept is clear:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
This in turn leads to the principle of Separation of Church and State (SOCAS), under which the government cannot interfere with doctrine, and NEITHER Church NOR State is “superior” to each other, as they occupy distinct spheres.
NO state or federal government in the USA may ever force ANY religious entity to perform their rites in a particular way, except that a religious practice may be forbidden or overruled if it is deleterious to public health, safety or civil order, or is in and of itself illegal regardless of religious context; conversely, the State is not obligated to recognize any religious rite as civilly binding. Thus the USA Federal Government and those of its 50 component and 6 subordinate jurisdictions can ban Ganja and polygamy (illegal in general), require a Muslim woman to uncover her face for the photo on her ID card (public safety requirement), and force medical treatment upon a child against parents’ wishes (public health), no matter how much any congregation may scream that God Himself ordained them otherwise. But otherwise (SOCAS) means the state cannot command a religion to change its doctrine – be it the Catholic Church to abandon celibacy, or the Mormon Church to carry out Temple Ordinances in public, or any church to perform gay weddings – and that religions are generally exempt from “equal rights” requirements when it comes to strictly doctrinal issues.
Oh, BTW, I left out: the “legal experts” in Canada probably are being excessively overcautious in face of political criticism. My limited knowledge of Canadian law and society would point to that if this were ever brought up in court, the finding would be in favour of the churches, since it the Ontario Court would be found with no jurisdiction over Church doctrine.
To make it quite simple, Susma, because a law allows you to do something does not make it mandatory that you do it if you feel it to be wrong. I could buy you a drink if we’re ever in the same town, but some of the conservative evangelical Christians and a bunch of A.A. members would decline that offer because for them drinking alcohol is wrong.
For a person to marry under the laws means that they’ve met the legal requirements for marriage – not presently married in the eyes of the state, of age, etc. – and choose to marry. But if, for example, a church prohibits the remarriage of divorced people, it’s not obliged to perform such a marriage, but would rather send a couple with a divorce somewhere in the pasts of one or both of them elsewhere. Likewise, a church which does not believe that two gay people can enter into a marriage is not obliged to hold a ceremony for them, but would send them elsewhere. (Note that Metropolitan Community Churches, most United Churches of Christ, many Episcopal Churches, and a few Baptist churches will celebrate a gay union if requested to do so.)
I seem to be re-inventing the wheel, in bringing up the matter of which is in charge of which between state and church.
The wheel is there, so for the sake of discussion, just like those guys at Athens in the time of Paul, let’s have a good look at the wheel. What wheel? The secularist state.
What states today are secularist? From acquaintance with news and in the habit of reading, I seem to know that India, Mexico, Saddam’s Iraq, Turkey are some secularist states in today’s world. These are states run by governments which do not subscribe to any religious systems in their governance of their peoples. And I forgot, all the communist states before, and now Cuba and Vietnam and China which still adhere to the idealogy of atheistic communism, whatever their actual economy and commerce appear to be capitalist-leaning.
There are several kinds of secularist states, from secularist states which are professedly antagonistic to religions and churches, and run roughshod over them if necessary in their pursuit of a purely earthly utopia, like China and the erstwhile USSR, to secularist states which are democratic to the extent of giving in to the activist sentiments of its people even in regard to their religious attachments, specially when government officials have to deal with established churches possessed of an expansive following.
Canada and U.S.A. seem to be the latter kind of secularist states, maintaining the separation of church and state on the one hand, yet on the other hand allowing for substantial influence of churches in the affairs of state.
Is that why legal scholars in Canada exhibit the following preoccupation in the wake of an Ontario appeals court’s decision to allow same sex marriages:
. . . public health, safety or civil order, or is in and of itself illegal regardless of religious context . . . * Is that what we might call broadly as public policy?
From my training in the Catholic university where I spent my academic life with some very learned and keen minds (but when challenged to spring out of their chosen lifestyle, meekly demurred), here are some basic ideas I learned about marriage:
Marriage is essentially a contract, essentially no different from any other contract.
For Catholics, the Church claims exclusive competence to prescribe all the essential incidentals to make the contract valid between the Catholic contractants; so that a marriage between Catholics must be contracted before a priest, and it is a sacrament, called matrimony; no marriage is recognized between Catholics except the sacramental one.
Protestant churches generally disown competence over the essential incidentals of the marriage contract; for them it belongs to the competence of civil government. The church ceremony is just a religious garnish, the minister is acting as a government licensed minister in an exclusively civil marriage. The trouble now is with churches which reject divorce on religious grounds, and then their members get divorced from civil court; logically these people cannot look forward to new marriages in their churches.
A Catholic priest authorized by government to officiate at marriages is acting out two roles: as a civil minister and as a religious minister. Now, this is tricky: a marriage officiated by a priest and then dissolved through divorce from the civil court is still binding on the Catholic parties in the religious sacramental sphere; contrariwise, the same marriage declared null and void as a sacramental marriage by a Catholic church court, is still binding upon the parties, in the civil sphere. So Catholics who married before a priest must both get a divorce and a church declaration of nullity to be both civilly and religiously qualified as Catholics to marry again, before a priest.
For governments which maintain the policy of separation from the church, you can do all kinds of religious marriages, but as long as the minister is not licensed by the civil authority, there is no marriage contract that the government recognizes and protects and acts in defense of the parties to marriage and other concerned parties. And government can even go after you for officiating in so-called purely religious marriage ceremonies; but a man and a woman can live together without any marriage whatsoever.
The illustrious fathers did not teach us the implication, but I drew the obvious conclusion that “no matter how much any congregation may scream that God Himself ordained” so; if the government does not endow any religious practice in the tangibly behavioral domain – not the credal one – with coercive force, religious acts are without any efficacy in the concrete world of human affairs, not even a procession would take place.
But we are talking about the secularist state, like Canada and U.S.A., not states like the ones of Iran and most Arab Islamic countries.
Effectively, in secularist states the secular government is in charge of the church; these are the states upholding the separation of church and state. But with states such as the one of Iran and most Arab Islamic countries, there is a strong union between the civil leadership and the religious one; so that there is no distinction between purely civil and purely religious laws; and even in some cases the government admits its legitimacy as derived from religion.
I have to look up those Canadian legal scholars, to find out why they should be preoccupied about legislation to enable religious institutions to deny same sex marriages to people coming to them for such marriages. And I suspect they will tell me that basically it’s because the state is in charge of the church.
Whatever. Your use of “secularist state” here strikes me as a bit of a straw man - there’s really no such thing, since each state differs in key ways. Whatever you say about such entities may or may not be true for a particular secularist state.
That’s hardly true. Most contracts include what the participants want to include, and exclude what they choose to exclude. Marriage, as a contract, isn’t quite so free-form.
What’s an ‘essential incidental’, other than an apparent oxymoron? It makes it hard to respond when you’re using undefined terms.
So ministers can be busted for sanctifying gay marriages in the US? That’s certainly news to me.
Only when one considers the church as a civil actor - that is, when the church is acting out of its domain.
For instance, a church can be denied a building permit in a residential neighborhood if it hasn’t provided for parking; the government has a right to step in and make sure that “freedom of religion” doesn’t extend to “freedom to use up all the street parking in the neighborhood”. There ain’t no religious freedom to do things that citizens aren’t allowed to do under any circumstance.
Thank you, RTFirefly, for reiterating the point that Susma seems to have missed. The State can act to regulate the actions of religious entities in the manner it regulates the actions of ANY service institution, when the religious practice impinges on matters of general civil jurisdiction.
It not being civilly “mandatory” upon anyone, as a citizen to belong to one church or another, or to take vows, either marital or of Holy Orders, that a particular church does or does not marry gays or ordain the married is something a SOCAS State does not, must not, care about.
The State CAN have authority over a person or entity regarding SOME things, and have NONE regarding others. It doesn’t have to be “all or nothing”. “True separation of Church and State” is NOT defined as having the Church be subordinate to the State, indeed that is just as contrary to SOCAS as theocracy is.
The USA as it exists today would not be a secularist state, but a nonconfessional state – no official endorsement of a religion, but the voice of the religious is paid serious attention. An avowed atheist would have a hell of difficulty getting elected President.
My good friend from Mars, who introduced himself to me earlier as Herr Martian, asked me to present the following questions to our good posters here who are hesitant to accept the primacy of the state over the church in the U.S. and specially in Canada:
Where do people within a church go to when they have troubles among themselves, over a matter within their domain which they cannot resolve by themselves, to their satisfaction or their resigned acceptance? For example to make a parish priest or a pastor give up the keys to his office quarters.
Where do two or more churches go to when they have troubles among themselves, on matters which are of a religious character, and which they cannot resolve by themselves, to their satisfaction or their resigned acceptance? For example, which religious institution has the copyright to a particular name for a church or religious installation, when two or more are claiming an exclusive right over the name, like First Baptist Church of New Harbor?
Where does a religious institute apply for permit to occupy a public square for a religious function, like a revival meeting or an open air public Mass?
Where do churches obtain their exemption from taxation for being religious institutions?
Who put them in their places when they engage in any acts in public in disturbance of peace and order, or causing so much as alarm, even in the name of freedom of religion?
Lastly, who tell them and assure them that they enjoy religious liberty?
If the answers to these questions do not show that the state exercises primacy over the church, meaning, is in charge of the church; then pray what does it show?
To the higher hierarchical authority of the particular Church involved.
If the individuals refuse to do so, civil authorities may enforce (or refuse to enforce) the Church’s decision as an EMPLOYER, or as the owner of the property, NOT AS A RELIGION.
**
If it’s a doctrinal-religious issue, the State has no jurisdiction whatsoever. The debate goes on and each congregation goes on calling the other heretics and schismatics for as long as they wish. The example given is NOT A RELIGIOUS ISSUE intrinsecally, but a Trademark/Tradename issue, which is a civil issue.
**
Irrelevant to religion qua religion. ANY person or corporation must get a permit from the municipality. That includes the Straight Dope Message Board, José R. Díaz (your humble correspondent), the National Democratic Party, the Methodist Church, or Susma Rio Sep.
**
Not-for-profit Community Service corporations are ALL tax-exempt.
Also, the USA’s Article-I SOCAS doctrine DOES NOT “grant” religion anything, it recognizes unburdened religious (AND anti-religious, though some politicians refuse to believe that) expression as being a fundamental right that preexists the State.
**
IRRELEVANT to religion QUA RELIGION. Penal law applies to ALL citizens and corporate entities (actions of several US Bishops regarding perv priests and their own corrupt practices notwhitstanding). And as for “causing so much as alarm”, you need to clarify what THAT means.
**
Debatable. Under traditional US legal doctrine, freedom of conscience is a Fundamental Human Right, it does NOT derive from the State, it is PREEXISTING and is binding upon the State. The state does NOT create religious freedom, it “recognizes” religious freedom.
**
That the Law can set forth limitations and conditions on the actions of individual citizens and corporate entities, in order to protect the rights of third parties. indifferently to religious motivation. And that Susma Rio Sep’s Martian friend should accept that he just does not understand American Constitutional Law.
It’s fine that the Martian friend has (a) a different ideal than many of us of how a free constitutional republic should treat religion and (b) a different definition of “primacy” , from the USA legal system. But that does not result in changing how the official US policies and doctrines operate.
Time-out, here, JRDelirious. I think that we can all agree that the state has primacy over religious institutions the same way that the state has primacy over us. Churches are subject to certain laws and must follow them.
That said, the Constitution in the United States places some restrictions on what laws may be passed by Congress in regards to religion and some other categories. This is the part that Susma is so far unable to grasp. Yes, the state has primacy over the church, but it cannot force the church to do certain things - like who it wants to ordain as priests or what ceremonies must be performed by the Church.
I’m no expert on Canadian law either, but I’m reasonably sure you’re correct on this point. I can’t imagine that forcing religious establishments to perform weddings for those ineligible to wed in that religion’s view wouldn’t be a violation of Section 2(a) of the Charter (freedom of conscience and religion).
The reason it’s been specifically and repeatedly mentioned that the pending legislation will exempt churches from being required to perform same sex marriages is just politics. It’s to forestall conservative religious folk who aren’t well versed in the law from jumping to conclusions. Since religious conservatives in Canada are far less likely to be inclined towards imposing their views on the general populace through legislation than the religious right in the US, just the prominent mention of the fact that churches won’t be forced to perform marriages they don’t approve of will mitigate the majority of any potential backlash.
Another reason-a priest is not just a job, but a calling. Priests and/or nuns usually tend to have additional jobs-teaching, nursing, doctors, lawyers, etc.
Neurotik, you are right, of course. And much briefer than I was. Guess I just got a bit carried away there, didn’t I? In any case, the point’s the same: the Rule of Law applies to everyone, but it does not make us subordinates of the government in everything.
About the USA Constitution, I believe he may be unaware of how it is not subject to easy change by common statute, or that the dominant doctrine is that “fundamental rights” are not the State’s to grant and withdraw at will, but are held to originate with the People, with the State being limited in how far it may go in making sure it all comes together properly.
Herr Martian tells me that however people keep trying to explain how the state is not in charge of the church, or the church is not in the charge of the state, the fact is that when the church is in any trouble within or without itself, on a matter within its claimed religious competence or without, trouble namely from people or from non-personal elements, at the end of the day, if it cannot find satisfaction by any other way or from any other entities, it still has to go to the state. And if it still cannot live with the decision issued by the state to resolve its trouble, to which it resorts to for ultimate redress; then it just have to live with the decision however adverse to its own ideology whatsoever – or move out of the state and live and operate in another one favorable to it (which however still in that transfer indicates its subordination to the state, although. another one).
Now, just in case the state determines that it is not going to take up a matter addressed by the church to the state, because it is not a matter according to its own understanding to be of any intrinsic concern to the state, what’s going to happen? That church that goes to the state for resolution of its trouble, that church will certainly split into two or more factions, and every each faction will feel itself satisified by this kind of a self-resolution. And that’s how churches increase in number in the history of churches or religion.
All these observations from Herr Martian who claims to be a totally objective and impartial judge of human behavior.