 Over the last several weeks, I’ve received a number of e-mails urging my support for SB 906.
Introduced by state Sen. Mark Leno (D-San Francisco) in January, SB 906 is legislation designed to reaffirm that no clergy member can be required to solemnize a civil marriage contrary to his or her beliefs and that churches will not lose tax-exempt status for refusing those marriages. While I am certainly not hoping for its demise in the Legislature, I can offer little more than tepid support for this legislation. Why do we need legislation to reaffirm what the Constitution already guarantees? When I asked Sen. Leno this question, he reminded me it is not an uncommon practice to offer legislation that would clarify what the Constitution states. In see SB 906 as reactionary legislation based on the red herring successfully promoted during the Prop.8 campaign—if same gender marriage were legal churches that refused to conduct gay weddings could be subject to lawsuits. During the 2008 campaign I heard this charge made on numerous occasions as the basis for one’s support for Prop.8. It was even shared with me as late as last week that the legalization of same-gender marriage could allow gay couples to sue if an ordained clergy refused to officiate their religious wedding ceremonies. Since 1791 we have lived in a country that forbids Congress from making any laws establishing religion or prohibiting the free exercise thereof. To put this in context, if a member of the church where I serve as pastor wanted me of officiate her wedding and she informed me that the lucky guy was Charles Manson; I probably won’t do that wedding. Moreover, what are the chances that Mr. Manson’s legal representatives would bring a successful suit against me? This is the constitutional freedom that members of the clergy have enjoyed for 219 years, why would we be under any illusion that the legalization of same-gender civil marriage could alter the Constitution in such an antithetical manner? And SB 906 makes the distinction between a religious ceremony and civil marriage—the latter being a legal concept based on government institutions irrespective of religion. There is also a political aspect to SB 906 that cannot be denied. Given Prop.8, which restricted the definition of marriage to heterosexuals, was victorious in 2008 by a 4.48 percent, is it possible that SB 906, if passed, would assuage enough fears the next time same-gender marriage is put to a vote in California? In 2000, Prop.22, which prohibited same-gender marriage, passed by a 27.8 percent margin. There was no clarifying legislation that led to the eight-year transformation. Lest we forget, when the Supreme Court ruled in Loving v. Virginia, which ended race-based restrictions on marriage in 1967, roughly 2/3 of the nation opposed interracial marriage. The best intentions of SB 906 notwithstanding, no legislation whether to clarify constitutional guarantees or to change the political landscape can modify the fact that as long as we place exemptions on the 14th Amendment we continue to fall short of the lofty ideals embedded in our preamble: We the people of the United States in order to form a more perfect union. Opponents of same-gender marriage are free to hide behind false rationales in order to avoid saying publicly they just don’t like it. But the debate in not specifically whether one supports same-gender marriage, but does one support the two guarantees provided by the 14th Amendment to anyone who is born in this country or a naturalized citizen: Due process of law and equal protection under the law. As long a gays and lesbian are denied a right so fundamental to the republic that the courts have upheld it for those on death row who have committed the most heinous crimes along with those who have previously violated their matrimony commitment through sexual or physical abuse, we are unequivocally stating through our failure to adhere to the Constitution they are less than human. But policy is lagging far behind emotion on this issue. As a policy matter, there is not much to debate around same-gender marriage; emotion is the primary reason this issue is not fait accompli.
SB 906 is rational legislation that seeks to address irrational reasoning. The problem with irrational reasoning, it remains a moving target that is not daunted by logic, regardless of its sincerity.
If its concerns are addressed, it will just simply find another illogical excuse to maintain its opposition.
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