National Gay Marriage & Religious Rights

Many on the anti-gay religious right now claim, apocalyptically so, a national, constitutional right to same sex marriage necessarily means an infringement on their rights. See this article by J. Matt Barber of Liberty University’s School of Law for the most extreme kind of such rhetoric.

Barber’s article deals with the thorny issue of how Christians ought to live in a civil society whose legal rules disrespect their consciences. He notes:

So let’s see if we can make this abundantly clear. Christians, true Christians – regenerate, Bible-believing Christians who strive their level best to maintain fidelity to the word of God and honor His commands – will not, indeed cannot, participate in, approve of, facilitate or encourage certain behaviors deemed by the Holy Scriptures to be immoral or sinful. This is both our constitutionally affirmed human right and our Christian duty.

This is what I wonder: How the Supreme Court’s ruling on same sex marriage will lead to such?

Before we begin to answer, let’s lay a foundation. Both Jesus and St. Paul gave believers instruction on how to make peace with a secular civil government whose principles didn’t perfectly line up with theirs.

When St. Paul said in Romans 13 “government” was a minister of God that believers ought to honor, obey and submit to, the ruler to whom he instructed believers to submit was the pagan psychopath, Nero. Jesus, of course, said “Render unto Caeser….” And the Caeser to whom Jesus said to render unto also wasn’t much of a good guy either.

Yet lines were drawn. Obvious lines. If “man” (including government) tells you to disobey God, then obey God and disobey man. Never are believers instructed to revolt and overthrow government. Simply disobey. Jesus never revolted against Caeser or called on His people to so do. Indeed, He seemed to tell Pilate his most unjust act of crucifixion had civil legitimacy from above.

Jesus did disobey and drove the money lenders out of the Temple, a sacred place.

So the way I put this together, if government forces its way into an anti-gay church demanding believers perform same-sex marriages, disobedience would be justified and mandated (just as if the shoe were on the other foot and pro-gay churches were forbidden from performing same-sex marriages).

Is that likely to happen?

A trickier issue is when a believer occupies a place in the civil government whose function is to marry people civilly and their secular job requires them to facilitate what they believe to be sin. It seems to me the same sex marriage ruling doesn’t present a new dilemma. Government for some time has been granting civil marriage licenses to, for instance, folks whose marriages couldn’t possibly meet strict biblical standards on when (if at all) a remarriage is permitted after divorce.

But even still, there is no need to panic under current law. Government workers qua government workers do have statutory rights to religious accommodation. There is, alas, no right to accommodation, under the First Amendment, ala “Smith.”

But statutory law protects what the First Amendment does not in this circumstance. Shortly after “Smith” Congress passed RFRA, and what survives of it grants religious believers the right to “accommodation” under federal laws. Some state and local laws grant such accommodation; some don’t. However, current interpretation of The Federal Civil Rights Act of 1964 grants religious employees (including those who work for state and local governments) rights to accommodation.

What that means is — if I understand it right — that if a clerk doesn’t want to issue a marriage license for religious reasons, they have a right to be excused provided they can be “reasonably accommodated.” That means, someone else has to do it, and management has to “work things out” (meaning you still have to pull your weight at work).