Wednesday, January 27, 2010

California state Senator Mark Leno introduces legislation to reaffirm First Amendment protection of clergy performing marriages

01/27/10 press release by California state Senator Mark Leno:
SB 906, the Civil Marriage Religious Freedom Act, reaffirms the freedom members of clergy have to make faith-based decisions regarding which marriages they solemnize. It reaffirms the principles of the First Amendment of the U.S. Constitution with respect to California’s marriage laws.
The legislation has the support of Equality California and California Council of Churches IMPACT. Bob Egelko of the San Francisco Chronicle reports a favorable response from a spokesman for the Southern Baptist Convention of California. This kind of political support matters.

It may take at least two more years for a final ruling in the Perry case. Voters will have opportunity to reconsider Prop. 8 if a measure for its repeal reaches the ballot this year or in 2012. As Egelko points out, "[t]he threat of churches losing their tax-exempt status for refusing to perform same-sex marriage ceremonies was prominent in the campaign in favor of Prop. 8." Enactment of SB 906 would remove this cause of contention.

Opponents of Prop. 8's repeal would, of course, find the proposed reaffirmation of the First Amendment no answer to other concerns. The Catholic Church might, for example, claim that if voters repealed Prop. 8, the state may later enact marriage-equality, "forcing" Catholic Charities to provide services to same-sex couples. Under the state Unruh Civil Rights Act, a religious organization licensed to provide social services can't discriminate on the basis of sexual orientation. But that fact would not deter the Catholic Church from raising this religious-liberty objection, any more than the D.C. Human Rights Act deterred the D.C. Archdiocese from raising the same obection when the D.C. Council prepared to approve marriage equality legislation.

Adoption of SB 906 would require marriage-equality opponents to show how marriage equality imperils other forms of religious liberty than the kind obviously implicated in religious solemnization of marriage. In fact, they would have to show why other types of religious discrimination against same-sex couples requires exemption from the state civil rights act. If a Southern Baptist Convention continues to support SB 906, wouldn't they find it harder to craft the required arguments for voters?

02/1/10 update

Bill would let clergy refuse to marry gays, 02/01/10 SF Chronicle
"We heard through the Prop. 8 debate great concern from certain clergy that their freedom of religion could be infringed upon and their tax-exempt status revoked," said the bill's author, Sen. Mark Leno, D-San Francisco. "We want to clarify that by putting the constitutional guarantee of the First Amendment, freedom of religion, into statute."


Thomas said...

As I see it, this legislation takes the wrong tack. Clergy, under the First Amendment should not be agents of the state. The proper legislation should be to reserve marriage to the state, as is done in Europe, and then once the parties are married, if they choose to, have their marriage blessed by clergy. Clergy as agents of the state is ludicrous and should be stopped.

Anonymous said...

With the repeal of Prop 8, I imagine marriage equality would spring back into existence as a consequence of the previous CA S.Ct. decision -- after all, the CA constitution requires marriage equality but for Prop 8. I don't think separate legislation would be necessary.

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