Pandaemonium

ON GAY MARRIAGE, RELIGIOUS FREEDOM AND WILD HYSTERIA

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The European Court of Human Rights ruling this week on four cases of conflict over religious rights, and the continuing controversy in Britain, France and elsewhere on proposals to legalize gay marriage, shows the ongoing battle  over how we should define religious freedom. I wrote a long post on this question last year, trying to establish some fundamental ground rules from first principles. Here I want to address one issue that has become prominent in recent weeks: the claim by a growing number of believers, especially Catholics, that the legalization of gay marriage amounts in itself to an attack on religious freedom, even to the persecution of Christians. More than 1000 Catholics priests, bishops and abbots – almost a quarter of Catholic clerics in England and Wales – signed a letter to the Daily Telegraph suggesting that while ‘After centuries of persecution Catholics have, in recent times, been able to be members of the professions and participate fully in the life of this country’, legalizing same sex unions would return Britain to the days of persecution, ‘severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship’. The journalist Cristina Odone, former editor of the Catholic Herald,  agreed that ‘David Cameron’s persecution of Catholics makes him Henry VIII, mark II’.  ‘Once gay marriage is a law’, she claimed, ‘Catholics will be barred from many professions — just as they were from the Reformation until the 19th Century’. There are, she adds, ‘many Christians willing to play Thomas More to David Cameron’s Henry VIII’.

Such claims, it seems to me, not only fundamentally misunderstand religious freedom, but, in their wild hysteria, serve also to undermine those very freedoms.

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The issue here is not whether or not it is right to legalize same-sex marriage. I happen to think it is. Many believers, and some secularists, disagree. The issue, rather, is whether legalizing gay marriage would in itself amount to an attack on religious freedom, and would inevitably lead to the persecution of believers, and of Catholics in particular. Unless it is wrong for a society to enact laws that are contrary to the beliefs or practices of certain religions, then it cannot be wrong in principle for society to legalize gay marriage, nor can such legislation be in principle contrary to the demands of religious freedom. Indeed, it is only because there exists a distinction between what a religion requires or forbids and what a society permits or proscribes that the issue of religious freedom is important. If there were no such distinction, then there would be no need to defend freedom of religion.

There are many laws that liberal societies enact that are contrary to the beliefs and practices of many religions. The legalization of abortion, for instance, of homosexuality, and of divorce (and the acceptance that divorcees can remarry) – all  legally permit practices condemned by the Catholic Church (and by many other faiths). Are these also expressions of the ‘persecution’ of believers? If not, why should the legalization of gay marriage be so different?

2

The claim that legalizing gay marriage undermines freedom of religion has it back to front.  Legalizing gay marriage in reality extends freedom of religion. While most faiths oppose gay marriage, some support it and would like to consecrate same-sex unions. They are, however, forbidden from doing so by the law. Adherents of such faiths are, in other words, legally prohibited from following their conscience.  In permitting such congregations formally to bless same-sex unions, any law legalizing gay marriage would extend freedom of religion. The question that critics like Cristina Odone have to answer is not simply: ‘Why should your beliefs be so privileged that the fact that you hold a particular view of marriage be sufficient to prevent others from acting upon their different beliefs and legalizing same-sex marriage?’. It is also: ‘Why should your religious beliefs be so privileged as to take precedence over the religious beliefs of others who happen to hold different views to your own?’ And: ‘In insisting that certain religious groups cannot act upon their conscience, is it not you that is attacking freedom of religion?’

etheldreda martyrs

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What would be wrong, and contrary to religious freedom, would be to force churches that do not accept the validity of same sex-unions to perform such marriages. No one is, however, suggesting that they should. Nevertheless opponents of gay marriage constantly raise this spectre. ‘Once gay marriage is legal’, Odone claims, ‘secularists can rely on a host of equality laws to prosecute a conscientious objector who fails to promote it’. There are, as we have seen, many laws that permit practices contrary to religious belief. Would an earlier version of Cristina Odone have insisted that the 1967 Abortion Act, that legalized a practice that Catholics consider far more wicked than gay marriage, would also lead to the prosecution, and persecution, of Catholics? Or the legalization of homosexuality that same year? Or the 1857 Matrimonial Causes Act, which allowed ordinary people for the first time to divorce, and without an Act of Parliament? If so, why should we take more seriously the claims about the consequences of legalizing gay marriage than we would have those earlier claims about the consequences of legalizing abortion and homosexuality and divorce? And if not, why is legalizing gay marriage so different in terms of consequences to Catholic belief that the legalizing of abortion or homosexuality or divorce?

In any case, what is the alternative? Odone and the Catholic priests are in effect arguing that the possibility of religious freedoms being trampled upon in the future should be reason definitely to trample upon the freedom of gays to marry today. How can this possibly be a morally or politically acceptable argument? If legislation for gay marriage does lead to unacceptable infringements upon religious freedom, then we – secular and religious – should contest any such infringements. But the fact that injustice may be done to believers in the future is no reason to prevent justice being done to gays and lesbians today. (I recognize that many believers do not see legalizing same-sex marriage as enabling justice to be done to gays and lesbians; that, however, is a different debate.) Certain injustice to X today is hardly a good remedy for possible injustice to Y tomorrow.

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What of the claim, made by the Catholic clerics in their letter to the Daily Telegraph, that ‘Legislation for same sex marriage, should it be enacted, will have many legal consequences, severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship’?

Given that we live in an age in which the claim that certain speech is ‘offensive’ is used all too often to impose censorship, and in which there is increasing intolerance of those whose speech does not conform to liberal norms, there may well be grounds for such fears. If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged, not just by religious believers but by all those who believe in free expression and freedom of conscience.  But again, the remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today.

In any case, the issue of gay marriage is not fundamentally different from many other cases in which religious ‘truth’ diverges from that which the law permits or proscribes. The fact that abortion, contraception, homosexuality and divorce are all legal in Britain has not prevented Catholic priests or teachers from asserting their ’truth’ on these issues, or barred them from entering any profession.

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There has certainly been a long history of anti-Catholic bigotry in this country, often promoted by liberals. But the idea that the legalization of gay marriage will have consequences for Catholics that could bear comparison with the penal laws of old, or that the actions of David Cameron make him ‘Henry VIII Mk II’, is at best historically illiterate, at worst downright bonkers. Henry VIII persecuted Catholics by hanging, drawing, burning and quartering them. The ‘penal laws’ refer primarily to a battery of laws that were created specifically to harass, humiliate and oppress Catholics after the Glorious Revolution of 1688, when the Catholic James II was overthrown by a union of English Parliamentarians and the Dutch Protestant William of Orange.  Catholics were excluded from most public offices, could not stand for parliament and were denied the vote; they were forced out of many professions from teaching to the law; they were barred from English universities, but barred also from studying abroad; they were forbidden from holding firearms, from serving in the armed forces and even from owning a horse valued at over £5; they could not inherit Protestant land and could not buy land with a lease of more than 31 years; Protestants were banned from converting to Catholicism, and Catholics banned from marrying Protestants. And so on. To suggest that this history of persecution provides a useful analogy for what might happen if same sex-marriage is legalized is, frankly, to take leave of reason.

The hysteria about penal laws, ‘persecution’ and ‘martyrs’ tells us little either about the Catholic past or about the Catholic future. It tells us, rather, much about the politics of the present, and in particularly about the way that so many interest groups now see playing the victim card as the way to trump political debate. Once the currency of political debate becomes not rational discussion but emotional blackmail, then there inevitably develops an arms race to generate increasingly more grotesque fears.

The letter of the 1000 Catholic clerics concludes:

The natural complementarity between a man and a woman leads to marriage, seen as a lifelong partnership. This loving union – because of their physical complementarity – is open to bringing forth and nurturing children. This is what marriage is. That is why marriage is only possible between a man and a woman.  Marriage, and the home, children and family life it generates, is the foundation and basic building block of our society.

They have every right to believe this, to publicly express that belief and to act upon it by refusing to countenance same-sex unions within their church. What they do not have the right to do is to insist that if anyone else thinks differently, and wishes to act upon their belief, they are in so doing persecuting Catholics and attacking religious freedom, and that therefore such beliefs must not be acted upon. Religious freedom is important; too important to leave it be traduced in such cavalier fashion by particular interest groups.

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The photos are of English Catholic martyrs executed by Henry VIII for refusing to renounce their faith and depicted in the great West Window of St Etheldreda’s Church in London, the story of which I recently wrote about.

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36 comments

  1. A very similar problem arises with Islam, trying to argue that respect fro their religion and sharia means Society has to shut down mockery and even rational criticism of Islam. Religious freedom does not mean giving a religion the power over non adherents, or to change the law in accordance with its particular beliefs agianst the democartic wishes of the majority; it means allowing them freely to argue their case alongside others

  2. Scott Reilly

    Such sober analysis. I really enjoyed reading this.

    You mentioned there are some religions which support same-sex unions and would like to see them consecrated. Do you mean reform denominations of the Abrahamic faiths, like reform Judaism? Or are there totally different religions that allow it?

  3. The quote by the Catholic clerics correctly defines the historical and social institution of marriage in western society. It is a social or religious ceremony that has to be completed by a procreative, sexual act. Marriage has traditionally, and still is legally in most western societies, to be consummated to become legally recognised. You infer disagreement with this in your article and in your support to ‘the right’ to same sex marriage, but you have not defined what you mean by marriage that is different from the clerics. If like many, you do not believe in the necessity to consummate marriage, then it becomes a social and civil ceremony (a civil partnership), not an institution for the creation of the next generation. The institution of marriage would then be very different for everyone from its historical and social context and we should all have the widest of debates. If you believe marriage must be consummated, you must define what consummation of a same sex marriage would be and let the working party of civil servants know, who have been asked to wrestle with this dilemma! Put another way, how do you consummate a same sex marriage so that same sex partners may take part in the procreative nature of marriage? Yet the ‘right’ to same sex marriage only differs materially from civil partnership in that formal marriage includes its consummation. If you do not believe in consummation then it must be a false ‘right’. Therefore, please define the consummation of same sex marriage.

    • As I wrote in my post, the issue I was addressing was not gay marriage as such but whether the legalization of same-sex unions would in itself amount to an attack on religious freedom, and would inevitably lead to the persecution of believers. Let us, however, have that debate about gay marriage. All social institutions change. Marriage included. Historically marriage has taken a myriad forms. What is now seen as the ‘traditional’ or ‘ideal’ or ‘natural’ model is in fact a relatively recent development. It is true that the ‘creation of the next generation’ is an important aspect of marriage. It is not only in marriage, however, that the next generation is created. And it is neither the case that procreation is the only function of marriage, nor that gay and lesbian couples cannot have children. There are many married couples that cannot, or choose not to, have children. Are you suggesting that they are not really married (or believe that laws that do not consider such couples to be married are just laws)? At the same time gay and lesbian couples can have children through a variety of means, from IVF to surrogacy to adoption. Are you suggesting that only couples who have children through heterosexual sex should be considered married? So, yes, if we were not to fetishise the physical act of heterosexual sex so much, we could both ‘define the consummation of same sex marriage’ in a way that makes sense to the modern world and take a more rational view of marriage, again in a way that acknowledges that we live in the 21st century.

      • In the abstract and as you say, “we could both ‘define the consummation of same sex marriage’…and take a more rational view of marriage”. The context, however, for the current debate is that the U.S., UK and French governments have acted to change fundamentally the social institution of marriage without defining the consummation of same sex marriage, nor taking a rational view of it, rather launching an attack on our most intimate of relationships, under the banner of ‘equality’. It is a state led and imposed, legalistic change to an institution that should and always has changed in a very social way, as a summation of everyone’s private and intimate behaviours. Support for the legalisation of same sex marriage, therefore, is a call for the state to interfere and regulate personal relations. It gives the state moral authority over us and political elites more power to dictate our behaviour, as well as providing a useful distraction from pressing economic and social woes. This is why it is currently such a defining issue.

      • 1. You asked me in your original comment to ‘please define the consummation of same sex marriage’. I did so. Now you argue that my definition is ‘abstract’ because the ‘US, UK and French governments have acted to change fundamentally the social institution of marriage without defining the consummation of same sex marriage, nor taking a rational view of it’. Well, I’m sorry, I don’t speak for the US, UK and French governments, nor do I need to in order to answer the question that you asked. As it happens, I disagree on many points with government policy on this issue, and with the law that is being proposed in Britain. But that is irrelevant either to the question that you raised or to the question of whether gay marriage should be legalized. If you want to challenge my answer, do so. But don’t suggest that it is unsatisfactory because the UK government gives a different answer.

        2. You say that ‘Support for the legalisation of same sex marriage, therefore, is a call for the state to interfere and regulate personal relations’. This again seems to me strange reasoning. Allowing gays and lesbians to get married is ‘state interference in personal relations’, but the state forbidding gays and lesbians from getting married, and forbidding churches that wish to marry same sex couples from doing so, is not interference? How do you work that out?

        3. Similarly, you write that legalizing gay marriage ‘gives the state moral authority over us and political elites more power to dictate our behaviour’. In what way does accepting the right of the state to ban same-sex unions not ‘give the state moral authority over us and political elites more power to dictate our behaviour’?

        4 You write that ‘It is a state led and imposed legalistic change to an institution that should and always has changed in a very social way, as a summation of everyone’s private and intimate behaviours’. First, that is an odd reading of how the institution of marriage has changed through history; such changes have occurred largely through the changing needs and desires of the elites, political and religious. In any case, what we are debating here is state policy and laws that prohibit gay marriage; inevitably, therefore, what we are talking about are changes in the law and in the policies of the state. If what you mean is that there is no great social pressure on the state to allow same-sex marriage, or that there is no mass movement pushing for this, I agree with you. But that is a different issue from the question of whether same sex-marriage should be supported or opposed.

        • 1. I know you don’t speak for western governments but what you say and promise is almost indistinguishable. I would be very interested to know of your differences with the UK position on this issue (e.g. March 2012 .gov.uk consultation and subsequent).

          2. Western governments are still forbidding gays from most religious marriage. The ‘rights’ they are proposing for gay marriage over civil partnerships amount to consummation, annulment and adultery, for they are the only substantive differences between them. If the call for same-sex marriage is not to be an attack on religious marriage and freedom, then it should be restricted to these differences and a name change from civil partnership to marriage. But the framework proposed by many goes much further than this. Hence the hysterical reaction of Catholic clerics.

          3. The call for same-sex marriage gives the state the moral authority to define, shape and direct our most intimate of relationships. The UK government makes clear that it is seeking a legal definition of marriage, where none previously existed in statute. The state has never prescribed by law what constitutes marriage, nor should it now, nor in the future. Civil law over the centuries has set boundaries to marriage, forbidding a whole range of people from getting married, but that is very different from a statutory prescription.

          4. Yes, there is no great social pressure for same-sex marriage. Let’s face it, who is likely to get worked up about a right to consummation, annulment and adultery. I am one of what you say are ‘some secularists’ who oppose the call for it. How do you know we are so few, without asking the question and raising the debate?

        • Thank you for your full responses and please allow me to make myself clear.

          As a secularist lover of freedom, faced with narrow political elites in the U.S., Britain and France who are threatening to define new statutes and regulations for marriage, where none currently exist, I want the state to butt out and keep out of marriage! I don’t accept the moral authority of these elites and states to regulate and prescribe how everyone behaves in our most personal and intimate of relationships. I have avoided your question as to which form of state interference I would support, permitting or banning same-sex marriage, because it asks me to support the state’s right to interfere, which I reject utterly. This is absolutely necessary in the interest of individual and religious freedom.

          Your demand for legalisation of same-sex marriage cannot presently be distinguished from state proposals for the same. Your insistence that the demand for same-sex marriage should be supported in the context of specific proposals from governments that purportedly meet this demand, which you claim are irrelevant, is recognising the moral authority of the state to interfere in marriage and so all our personal behaviours. This recognition compromises and sacrifices our freedoms, including religious freedom.

          I pointed out that the Catholic clerics correctly defined the historical and social institution of marriage. This doesn’t equate to support for their beliefs or moral rectitude. The Christian view of marriage has held sway in western societies for many centuries. That is factual history, which is always a good place to start an argument. This happens to include tricky issues like consummation, non-consummation, annulment and adultery. I know they are tricky as they are exercising the minds of many government lawyers at the moment. It seems to me they would very much appreciate your opinions that legalising same-sex marriage is irrelevant to the protection of freedoms, religious included. With your support, they will prescribe and proscribe marriage, and so our behaviours and freedoms, unopposed. In the current context, there is an indivisible link between the call for legalising same-sex marriage and the potential for attacks on religious freedom. If I were a Catholic cleric, I would be worried, very worried, and with defenders of their right to believe in religious marriage such as you, calling for state regulation of marriage, the attacks may come sooner than we all might expect.

        • Kenan, I agree we are in danger of going around in circles, so let me attempt to summarise and clarify. I will provide a fuller review of our debate in a blog over the weekend and post a link here, particularly in the light of today’s Government announcements.

          Western states have made the call to legalise same-sex marriage an issue that crystallises where each of us stands in relation to the state and freedom. It is, therefore, a defining issue of the day that determines whether you stand with the state, or with people.

          I think we agree that marriage in western societies, as traditionally described by the Catholic clerics, now referred to as ‘religious marriage’, including the full range of behaviours of our most intense of relationships, namely consummation (in the form of sex), annulment, adultery (and so divorce), is what historically has defined marriage. At both individual and social levels, marriage is inherently exclusive. Laws have developed, although surprisingly few, over the centuries to set boundaries to marriage to exclude many people and groups, including third parties, children, bigamists, those incapable of making a free decision and people of the same sex. UK and other governments now seek to impose a statutory definition of marriage, where none currently exists, under the banner of same-sex marriage.

          You believe gay people should not be banned, so support the call, as a principled demand, separate from Government. You believe that the legalisation of same-sex marriage, on the basis that gays are banned from marriage, is irrelevant to religious freedom, so the reaction of Catholic clerics is hysterical and should not be used to impose on others, especially gay people wanting to marry. I still see your argument as indistinguishable from that of the political establishment, such as ex-police minister, Nick Herbert MP, founder of Freedom to Marry http://www.bbc.co.uk/news/uk-politics-21181273 and Maria Miller, Culture Secretary http://www.bbc.co.uk/news/uk-politics-21178387. In the context of western states seeking to impose a definition of marriage to include same-sex marriage, your ‘principled demand’ can only be seen as support for the Government’s proposals. Any distinction you try to make can only be semantics, not principle.

          I pointed to consummation as being part of the procreative potential of historical marriage and you kindly offered a definition in which consummation in same-sex marriage is about having children and that we could define it in a way that ‘acknowledges we live in the 21st Century’, which is what today’s published proposals attempt to do. However, although concerned about the contents of these proposals, what scares me much more is the wide recognition, including yours, that the Government has the moral authority to define and so direct our marriage behaviour. I neither call on the state to ban gays from marriage, nor to change it to include same-sex marriage. It is a false question and the choice of charlatans and government ministers. Governments have never before defined marriage, leaving it to a small body of case law to curb unacceptable marriage behaviours. Let people, through their beliefs and behaviours define what is socially acceptable marriage, as we always have done. The very act of government in distinguishing ‘religious’ and ‘civil’ (to be state) marriages interferes with some individuals’ marriage, belief, behaviour and freedoms. I do not call upon, or find acceptable in any way, state interference in marriage. The best way to defend our freedoms, including religious, is to get the government out of marriage, now and in the future!

      • Tony, in order that this thread remains manageable (and that I don’t write effectively another post in response), and because, while you raise new questions and objections, you still have not answered the ones I have asked you previously, let me deal simply with your first two points. Once we have settled that debate, we can turn to your third and fourth points.

        1. In pt 1 you claim that what I ‘say and promise is almost indistinguishable’ from that of ‘western governments’. In pt 2 you claim that ‘Western governments are still forbidding gays from most religious marriage’ (I assume you are referring here to government proposals for same-sex marriage). Given that a central part of my argument is the insistence that governments should not forbid churches from marrying same-sex couples if they so wish, are you not with pt 2 demolishing your own claim in pt 1?

        We can have a debate about my argument. We can also have a debate about particular proposals put forward by particular government and their reasons for doing so. What you are doing, however, is shifting from the one debate to the other as it suits you, which makes it almost impossible to have a debate.

        You began by questioning my support for the legalization of same-sex marriage, suggested that the Catholic view of marriage is correct, and claimed that

        the ‘right’ to same sex marriage only differs materially from civil partnership in that formal marriage includes its consummation. If you do not believe in consummation then it must be a false ‘right’. Therefore, please define the consummation of same sex marriage.

        I did provide such a definition. At which point you changed tack and claimed that my answer was unsatisfactory because ‘the US, UK and French governments’ have proposed laws ‘without defining the consummation of same sex marriage, nor taking a rational view of it’ (again undermining your claim that my argument ‘is almost indistinguishable’ from that of ‘western governments’). I don’t disagree with your point about the problems with the government’s proposals, and it is an important debate, but it is also irrelevant to the issue that you first raised.

        So let me ask you: do you still hold to your original view that the Catholic view of marriage is right? Do you still insist that without heterosexual procreation marriage is a sham and that consummation can only be defined in terms of heterosexual sex?

        2. You say in pt 2 that both that ‘the “rights” they are proposing for gay marriage over civil partnerships amount to consummation, annulment and adultery’ and that ‘the framework proposed by many goes much further than this’ which is why it amounts to ‘an attack on religious marriage and freedom’ and justifies ’Catholic hysteria’.

        The logic of your argument is unclear here. I assume that the ‘they’ in your first sentence refers to governments whereas when you talk of ‘the framework proposed by many’ you are referring not to governments but to others, perhaps gay rights or equal rights activists (otherwise in the space of three sentences you would have completely contradicted yourself). This again, I fear, is a case of you playing fast and loose with actors and arguments, failing to distinguish between different actors and different arguments, and using the one to argue against the other.

        Be that as it may, I have already shown that the particularly proposals put forward by a government are irrelevant to the insistence that same-sex marriages should as a demand be supported. To take a different example, I disagree with both the current law on abortion and the 1967 Act as being too restrictive; that doesn’t mean that I do not, or should not, support the case for abortion; similarly with divorce.

        As for the demands of others undermining religious freedom, I argued in my post that ‘there may well be grounds for such fears’. And, I wrote that ‘If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged, not just by religious believers but by all those who believe in free expression and freedom of conscience.’ But, I added, ‘the remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today.’ In other words, it is quite possible, and rational, both to defend the idea of same-sex marriage and to oppose any attempts to use this as a means of infringing legitimate religious freedoms.

        In any case, Catholics like Cristina Odone are not simply challenging government proposals, nor even ‘the framework proposed by many goes much further than this’ but rather the very idea of same-sex marriage which they claim in itself undermines religious freedom. That is what I was objecting to.

        Finally, you have avoided the question I raised in my previous response: Why are you worried about state interference in permitting same-sex marriage but not state interference in banning same-sex marriage?

      • (This is a response to Tony’s comment at 14.07 . WordPress, in its infinite wisdom, has reorganized the timeline, and placed this comment out of order in the thread. I seem unable to get it to change its mind.)

        Tony, we seem to be going round in circles here.

        ‘I have avoided your question as to which form of state interference I would support, permitting or banning same-sex marriage, because it asks me to support the state’s right to interfere, which I reject utterly. This is absolutely necessary in the interest of individual and religious freedom.’

        My point is that in banning gay marriage, and in banning churches from performing such marriages even if they wish to do so, the state already is interfering. To support the idea of same-sex marriage, and to support the right of churches to act upon their conscience, is to oppose that interference. In any case would you in 1967 have opposed the right to divorce on the grounds that the state was seeking to interfere by enacting a law to reform the process?

        ’Your demand for legalisation of same-sex marriage cannot presently be distinguished from state proposals for the same.’

        It’s pointless making comments, for rhetorical purposes, that you know to be untrue. Indeed, as I pointed out in my last comment, you yourself demolished that argument in your previous response.

        It seems to me they would very much appreciate your opinions that legalising same-sex marriage is irrelevant to the protection of freedoms, religious included. With your support, they will prescribe and proscribe marriage, and so our behaviours and freedoms, unopposed.

        Oh, come on, this is absurd. The picture of government lawyers sitting in their offices reading Pandaemonium, and shouting ‘Eureka!’ on seeing my post is amusing if nothing else. And even if they were, so what? My views on marriage, or on how gays should be treated, are not defined by whether or not government lawyers might ‘appreciate’ them, still less by a formula that says ‘If government lawyers think X, then I must think Y’.

        As I keep saying, if you wish to challenge my arguments do so. But don’t impugn them on the grounds that someone might be having similar thoughts.

        In the current context, there is an indivisible link between the call for legalising same-sex marriage and the potential for attacks on religious freedom.

        So banning churches from marrying gays if they so wish is not an attack on religious freedom? Another question you have so far studiously avoided answering.

        I pointed out that the Catholic clerics correctly defined the historical and social institution of marriage.

        And I pointed out why they did not. Catholic clerics take a historically contingent construction of marriage and present it as permanent, eternal and ideal.

        The Christian view of marriage has held sway in western societies for many centuries. That is factual history, which is always a good place to start an argument. This happens to include tricky issues like consummation, non-consummation, annulment and adultery.

        It may be a good place to start an argument but, as you yourself point out, it does not mean that that view is right or should be supported.

      • (This is a response to Tony Pierce’s comment on 25 January at 13.21, which again has been misplaced in this thread. Thanks WordPress.).

        Tony, The reason we are going around in circles is that rather than acknowledge what I have actually written, you are creating an argument in opposition to what you wish I had written. As a result the debate has become irrelevant.

        ‘You believe gay people should not be banned, so support the call, as a principled demand, separate from Government.’

        That’s exactly what I do. It’s you that has created a fantasy to feed your argument that I am somehow a cheerleader for government policy. It is no more credible for you to claim that my argument is ‘indistinguishable’ from that of the government than it would be for me to claim that your argument is indistinguishable from that of the Pope.

        ‘You believe that the legalisation of same-sex marriage, on the basis that gays are banned from marriage, is irrelevant to religious freedom, so the reaction of Catholic clerics is hysterical and should not be used to impose on others, especially gay people wanting to marry.’

        It might help if you read my post more carefully. What I actually suggested was hysterical were the attempts to draw an analogy between the legalization of gay marriage and the old penal laws.

        As for religious freedom what I wrote was:

        What of the claim, made by the Catholic clerics in their letter to the Daily Telegraph, that ‘Legislation for same sex marriage, should it be enacted, will have many legal consequences, severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship’? Given that we live in an age in which the claim that certain speech is ‘offensive’ is used all too often to impose censorship, and in which there is increasing intolerance of those whose speech does not conform to liberal norms, there may well be grounds for such fears. If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged, not just by religious believers but by all those who believe in free expression and freedom of conscience.

        Let me repeat again the two phrases that seem to have passed you by: ‘there may well be grounds for such fears’. And: ‘If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged.’

        I also made two further points: 1. The fact that law permits / prohibits actions contrary to religious belief does not in itself undermine religious freedom. Again as I have pointed out again and again, ‘the issue of gay marriage is not fundamentally different from many other cases in which religious ‘truth’ diverges from that which the law permits or proscribes. The fact that abortion, contraception, homosexuality and divorce are all legal in Britain has not prevented Catholic priests or teachers from asserting their ’truth’ on these issues, or barred them from entering any profession’. And 2. ‘The remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today’.

        If you wish to debate those claims do so. But do not try to impose upon me claims I have not made.

        ’I neither call on the state to ban gays from marriage, nor to change it to include same-sex marriage.

        The point is that the law currently bans gays from getting married. Insofar as you do not call for that legal restriction to be abolished, you are implicitly supporting it.

        ‘Governments have never before defined marriage, leaving it to a small body of case law to curb unacceptable marriage behaviours.’

        And how does that case law define what is or is not acceptable marriage behaviours? By taking marriage as that which is defined by the Church. However much you try to wriggle out of it, the law does currently define marriage, and one of the ways it does so is by insisting that marriage must exclude gays.

        ’Let people, through their beliefs and behaviours define what is socially acceptable marriage, as we always have done.’

        First, you yourself have just pointed out that the law has always curbed unacceptable marriage behaviours. So, to continue ‘as we always have done’ is to continue to accept that the law should continue to curb ‘unacceptable marriage behaviours’. Where does this leave your insistence that ‘I do not call upon, or find acceptable in any way, state interference in marriage’?

        Second, what does it mean to say ‘Let people, through their beliefs and behaviours define what is socially acceptable marriage’ when the law currently forbids certain forms of marriage not because they are not ‘socially acceptable’ but because certain religious traditions see them as socially unacceptable? How can people define what is acceptable without getting rid of a legal restriction that disbars them from defining what is acceptable?

        ‘What scares me much more is the wide recognition, including yours, that the Government has the moral authority to define and so direct our marriage behaviour.’

        So, to oppose the right of the state to tell gays that they cannot get married is to recognize the Government’s ‘moral authority to define and so direct our marriage behaviour’. Makes sense.

        I cannot see much point in prolonging this debate. I will read your post. But when you write it I hope you take up the argument that I actually make rather than the one you would like me to have made because to do so allows you to develop your own argument.

    • Kim

      Erm, does that mean infertile heterosexual couples shouldn’t be allowed to marry because they are not able to partake in the ‘creation of the next generation’? Also, let’s face it, most married couples have had sexual intercourse before marriage so surely consummation is meaningless to those people?

  4. Very interesting subject (gay marriage) and your post is a great reflexion on religious freedom. I happen to agree about all of your points here.
    I know it’s not the same in Britain but the main debate behind gay marriage, at least in France, seems more to be about that marriage is not a civil right for individuals or couples, but a (now secular) *institution* designed to organise (automatic) filiation and the fact that a child needs both of his/her parents (also in the case of adoption laws being extended to gay couples). So there, the opposition (and hysteria) is not only about religion but about filiation and the child needing both a man and women “referent” so they have plenty of secularists and/or agnostic/atheists who are against the law.

  5. Joyce M

    Catholics have already been harmed in places where same-sex ‘marriage’ was made legal; Catholic adoption agencies have been shut down because they would not adopt out to a same-sex couple. Catholic priests can lose the state right to marry if they do not agree to marry a same-sex couple. Individual Catholics can be put out of business by law suit if they refuse to service same-sex marriage related events, such as wedding receptions. Once something is enshrined in law as a ‘right’, anyone objecting can be damaged by the fallout.

    • Are you suggesting that nothing should be enshrined as a right in law? Or that nothing should be enshrined as a right that is contrary to Catholic teaching? Do you, for instance, think that the right to abortion and divorce, and the legalization of homosexuality, all ‘harm’ Catholics and therefore should be scrapped? If so, what is so special about Catholic teaching that non-Catholics must also abide by its rules? If not, why are these issues so different with respect to Catholic belief compared to same-sex marriage? And why should the right of Catholics to believe and to act upon their beliefs (one right that I assume you insist upon) be the only legitimate right? Or, to pose the issue in a different way: you say that you are concerned that legalizing gay marriage harms the activities of Catholics. Why are you not equally concerned that that imposing the Catholic view of marriage upon everyone else, harms the ability of gays to get married?

      What is really being demanded in the insistence that gay marriage should not be legalized because to do so would ‘harm’ Catholics is that everyone, and not just Catholics, must abide by Catholic teaching. How can that claim be defensible?

      My view, as I drew out in my ‘Notes on Religious Freedom’, is that, when it comes to freedom of conscience and action, there is nothing special about religious beliefs compared to other forms of belief. Whatever one’s beliefs, secular or religious, there should be complete freedom to express them, short of inciting violence or other forms of physical harm to others. Whatever one’s beliefs, secular or religious, there should be freedom to assemble to promote them. And whatever one’s beliefs, secular or religious, there should be freedom to act upon those beliefs, so long as in so doing one neither physically harms another individual without their consent, nor transgresses that individual’s rights in the public sphere.

      It is not just in the case of religion that there is a strong relationship between belief and practice. Racists, communists, Greens, New Age mystics – all could claim that their beliefs enforce upon them certain actions or practices. We do not, however, allow racists, communists, Greens, or New Age mystics to act upon their beliefs if in so doing they harm others or deny them their legitimate rights. A racist pub owner cannot bar black people from his pub, however deep-set his beliefs. It would be a criminal offence for Greens to destroy a farmer’s field of legally grown GM crops, however strongly they might feel about such agriculture. There is a line, in other words, that cannot be crossed even if conscience requires one to. That line should be in the same place for religious believers as for non-believers. Society should accommodate as far as is possible any action genuinely required by conscience, but not where such acts harms another or infringes their rights.

      So, to take one of your specific examples: Should a Catholic adoption agency be allowed to turn away gay prospective parents? This issue has not arisen because of the debate about gay marriage. After all, it has become an issue in places like Britain where gay marriage is still not legal. It has arisen, rather, because most liberal societies accept that discrimination against gays and lesbians in the public sphere is wrong, while many faiths see such discrimination as central to their beliefs. How do we resolve this conflict? In my view, if the Catholic adoption agency receives public funding, or performs a service on behalf of the state, then it would be legitimate for the state to insist that the agency does not discriminate, despite Catholic views on homosexuality. If, however, it is a private agency – if it is simply performing a service for Catholic parents who subscribe to its views on homosexuality – then the agency should be able to turn away gay prospective parents.

    • Michael Fugate

      Would it be acceptable for a gay teacher to exclude Catholic students from his class because he doesn’t approve of their opinions about same-sex marriage or contraception?

      What about a Muslim teacher who excludes females who refuse to cover their heads or arms?

    • Scott Reilly

      @ Joyce M

      Is it acceptable for Catholic doctors not to treat a rape victim as they don’t want to have to advise her on a possible unwanted pregnancy?

      http://www.telegraph.co.uk/news/worldnews/europe/germany/9811443/German-rape-victim-turned-away-by-Catholic-hospitals-over-pregnancy-fears.html

      Would asking the doctors to do their job in this instance be a breach of their religious freedoms? I know the doctors in the case above were concerned for their jobs rather than having personal moral objections, but would it be accpetable for them to refuse nonetheless?

  6. bruce madeiros

    Recently Steve Chalke, a leading UK evangelical ,wrote an article in a Christian magazine in which he felt the Christian community needs to grapple with gay marriage and also the wider attitude to gay people.
    He considers that the tragic outworking of the Church’s historical rejection of faithful gay relationships is a failure to provide homosexual people with any model of how to cope with their sexuality.

    For when the Church refuses to make room for gay people to live in loving, stable relationships, they consign them to lives of loneliness, secrecy and fear.
    Mr Chalke feels that it’s one thing for the Church to be critical of a promiscuous lifestyle but that the Church should be considering nurturing positive models for permanent and monogamous homosexual relationships.
    He feels that promiscuity is always damaging and dehumanising and that casual and self-centred expressions of sexuality – homosexual or heterosexual – never reflect God’s faithfulness, grace and self-giving love. He feels that only a permanent and stable relationship, in which respect and faithfulness are given and received, can offer the security in which well-being and love can thrive and that gays should be given this opportunity.

  7. Great article. The Catholic community as well as the LGBT community (not to presume there isn’t a significant overlap between these two groups) both need to be protected from abuse by the state. In America we are grappling with the HHS Mandate that catholic organizations provide abortions to their employees on demand. It is an example of the state impinging on one of the most basic beliefs of Catholics to protect life, even among private family-run companies. Conversely in America, the state is prohibiting LGBT couples from legitimizing their relationship, and gaining the legal privileges such as tax benefits and community property rights.

  8. JeremyR

    As usual, an excellent piece. The tone and content of the letter from the 1000 priests, and Tony Pierce’s arguments here, are an excellent reminder of why democracy, with all its faults, is superior to theocracy.

  9. Joyce M

    What do you think of this: ‘Maria Miller, Secretary of Culture and Great Britain’s equalities minister, recently stated that teachers and the Church of England will not be put in a compromising position due to the same-sex marriage bill.

    Miller told BBC Radio Four’s “Today” program that teachers will be able to tell their students that different religions have different beliefs when it comes to same-sex marriage, but they still must teach same-sex marriage in a “balanced way,” regardless of their beliefs’ – taken from http://wwrn.org/articles/38974/

    People will lose their jobs; it is a short step between enshrining something in law to prosecution.

    • Michael Fugate

      Sounds like what teachers should be doing about any issue. What is your problem? Should someone who wants to ignore any law he or she doesn’t like, be able to do so? In the states, anti-marriage equality individuals want to fund the cause, but they don’t like being singled out as bigots. They don’t want people to boycott their businesses, so they try to prevent the release of political donation information. Actions have consequences.

      Another religiously motivated issue in the states, is creationism. It is illegal to teach in public schools. What should creationist teachers do? Should they teach evolution in a balanced way? Should they break the law and teach creationism? Should they quit their jobs?

      If you are teaching in state-sponsored schools and you can’t be fair and balanced, then you need to lose your job.

    • Joyce, abortion, contraception, homosexuality and divorce are all legal in Britain. In each of these cases the legal position is different from the truth as perceived by Catholics. Has the fact that abortion, contraception, homosexuality and divorce are legal prevented Catholic priests or teachers from asserting their ‘truth’ on these issues, or barred them from entering any profession? Why is it different for gay marriage? Or do you believe that if at any point the law diverges from what is taken to be religious truth, that in itself puts religious freedom in peril?

      • Joyce M

        My single point is that when something is enshrined in law the entire legal system must enforce it and all the fall out from it. It is not a matter of having the freedom to teach something, it is a matter of having the freedom to practice your religious beliefs even in conducting business. You will soon see that that freedom is gone now in England. Here is another example from America:

        http://www.ncregister.com/daily-news/same-sex-wedding-cake-refusal-could-cost-christian-baker/

        As you say in your post, you believe that a Christian’s right to practice should be protected as well, however, with single-sex marriage enshrined in law, there is no practical way to do that.
        And if the point about abortion, contraception, homosexuality and divorce are all legal in Britain is that these freedoms have been eroded for a long time now, then I would agree, but also would say that same-sex marriage puts a total seal on the Christian persecution that is upon us now; people will lose their lively hoods and I venture to say that you will not be there to spear head any effort to get justice for them.
        I apologize for how long it takes me to respond, my job is intense and fast paced, so I rarely get a moment.

      • What you are really arguing for, then, is for no law to exist that is contrary to Catholic teaching. That’s normally called not democracy but theocracy.

        • Joyce M

          No, I am not advocating a theocracy, but what I am saying is that Christian business owners are not adequately protected. An example of protection from the law when it directly clashes with a person’s religion is the conscientious objector in time of war. I thoroughly believe in a country’s right to call its citizens to serve in war, but also in the right of the person whose religion absolutely prohibits them to kill for any reason, to object and to be excepted from serving in the armed forces. I don’t think a lot of people may realize how deeply compromising a position business owners like the baker are going to be put into.

      • Conscientious objection in a time of war is a poor analogy. In the case of conscientious objection one is talking about an extreme situation – war – and an extreme action – the killing of another human being. That is mightily different from the question of whether or not a Christian baker should have to supply a cake to a same sex wedding (my view, incidentally, is that he should not be forced to).

        My point is that while society should tolerate as far as is possible the desire of people to live according to their conscience, that toleration is not limitless. As I have already argued, we should draw the line for religious believers as for non-believers. We would not tolerate a racist pub owner barring black people from his pub, however deep-set his beliefs, or an atheist refusing to employ Catholics. The same applies to believers. We should not accommodate to religious conscience any more, or any less, than we should accommodate to the conscience of an atheist or a Green or a racist or of anybody else. Nor should the fact that Catholics – or atheists, or Greens or racists – believe something to be wrong mean nobody else should be allowed to act contrary to that belief.

        So, I ask again: does the fact that Catholics object to same sex marriages mean that same sex marriages should continue to be barred? If you think ‘Yes’, then you are effectively demanding a theocracy, a state in which the law is shaped to meet the demands of a particular religious group. If you think ‘No’, then we agree. If the rights of Catholics are infringed then we must challenge that. But, as I wrote in my post, ‘the remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today.’

      • Michael Fugate

        If someone has a bakery open to the public, then he or she should be willing to sell a cake to anyone who comes in to buy one. Just as I, as a public school teacher, should educate anyone who enrolls in my classes. If a student’s parents are lesbians, I can’t exclude him or her from class because the parents make me uncomfortable. I can’t exclude a gay student because his boyfriend drops him off at my classroom door. What ever happened to treating someone like you would like to be treated? Do you really want to show up at a business, fill your cart with items and be told you can buy them because you are a Christian, or white, or female?

  10. Michael Fugate

    How does supplying a wedding cake to a same-sex couple affect the religious beliefs of the baker? Answer – it doesn’t. The baker is selling a product and the buyer can do with it what he or she wants. What if he or she sold a cake to someone who then gave the cake to a same-sex couple? You know that the baker’s hero Jesus is claimed to have hung out with prostitutes and supposedly wasn’t tainted by it. This is just a silly temper tantrum and no one should give in to it.

    • Joyce M

      If selling the cake to aide in the celebration of a same sex union is regarded by the religious person as participation in the sin of another, then it does affect their religious freedom. They are bound by their religion to not participate in overt and public sin, but if they refuse, they can lose their business and be charged with legal offenses, as is happening in the case quoted. Many religious people view this as a choice between damage to their immortal soul and their livelihood. No one should be put in that position. However, how will their right to practice their religion, which includes not participating in what they consider to be public sin, be protected now; I am saying that now there is no way to protect conscientious believers from refusing service for religious reasons, though they legally may refuse service for a large variety of other reasons. (This last goes to the idea that a business cannot refuse service, in fact it can for lots of reasons.)

  11. Michael Fugate

    So you are saying that Jesus was wrong to associate with sinners? I thought this was Christians showed everyone how superior they are, no? There is absolutely nothing in Christianity that says you can’t sell a cake to a sinner. According to Christianity everyone sins, so how can they sell anything to anyone? Businesses can refuse service, but not for things that people cannot change – like skin color, or gender, or sexual orientation. I realize it is fashionable amongst religious conservatives to claim homosexuality is a lifestyle choice, but it is not. Science is not on the conservative’s ally. This has so many parallels to refusal of service to people of color and these people are simply on the wrong side of history. Just replace same-sex with inter-racial and see if their behavior passes muster.

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