CAN SAME-SEX MARRIAGES COEXIST WITH RELIGION? Josh Friedes

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1 CAN SAME-SEX MARRIAGES COEXIST WITH RELIGION? Josh Friedes I. INTRODUCTION Thank you, it is a real pleasure to be here today. As Valerie 1 said, I am filling in for someone. 2 What I am going to do today is share some comments that I have built over the last seven years working with the Religious Coalition for the Freedom to Marry 3 and working in grassroots advocacy, on the issue trying to create the intersections between religion, law and government. What I see are emerging issues that we have found as we seek equal civil marriage rights for same-sex couples in the state of Massachusetts. Interestingly, I think an awful lot of the obstacles are created as a result of both the legislature s and the public s perception of some of our legal traditions in this country. There have always been some Josh Friedes holds a law degree from the University of Colorado in Boulder, and a degree in history and political science from the University of Rochester. Mr. Friedes serves as the Political Advisor and Strategic Planner to the Religious Coalition for the Freedom to Marry. He is also the Advocacy Director for the Freedom to Marry Coalition of Massachusetts. He sits on a committee for MassEquality.org, which is the campaign for equality for the umbrella organization of the coalition of several groups seeking to defeat the anti-gay Defense of Marriage Act (DOMA) constitutional amendment. 1. Valerie Fein-Zachary, M.D., is a volunteer chair of the Freedom to Marry Coalition of Massachusetts. Professionally, Dr. Fein-Zachary is a radiologist specializing in mammography. She is a former partner of Commonwealth Radiology Associates and former Chief of Mammography at Union Hospital, North Shore Medical Center in Lynn, MA. Dr. Fein-Zachary lives in Boston with her wife, Jacqueline. They met in 1991 and were married in a Jewish religious wedding ceremony by Rabbi Elias Lieberman in Dr. Fein- Zachary acted as a moderator for the panel entitled Can Same-Sex Marriages Coexist with Religion? 2. Mr. Friedes replaced Reverend Maureen Reddington-Wilde, who is co-chair for the Religious Coalition for the Freedom to Marry. 3. A non-profit grassroots advocacy and lobbying organization working to secure equal civil marriage rights for gay and lesbian couples in Massachusetts. 533

2 534 NEW ENGLAND LAW REVIEW [Vol. 38:3 paradoxes, going back to our colonial days. There have been I guess some would call them public conflicts between what some people term our charter culture and our civic culture. For example, at the time of the creation of this nation we had certain values and certain aspirations, yet at the same time we obviously did not follow this; slavery, treatment of women, and so on, being obvious examples. But this clash between the aspirations and beliefs that we are taught first that all people are created equally and the reality, continues to plague us as we try to win equal civil marriage rights for same-sex couples. One of the most interesting things that I find is that as we talk about the issue to the legislature, religious norms are changing very quickly on the issue of equal civil marriage rights. One of the questions I think we have to ask ourselves is how does government deal with something that really has been universal for so long in many faith traditions, as opposition to samesex marriage disintegrates and a new norm within religious society begins to emerge? As Rabbi Lerner 4 said, there are today many faith traditions that support equal civil marriage rights for same-sex couples, and almost all those faith traditions at one point opposed equal civil marriage rights. Today, what we hear, both from members of the legislature and conservative faith traditions, is that marriage always has been the union of one man and one woman and always will be. But that, of course, is not in fact a true statement of where we are. People like Valerie Fein-Zachary, for example, have a valid religious marriage which is recognized by their faith tradition. So what we really have is an incredible problem that the universal norm from religion, which essentially was adapted into the civil law of states, is no longer in fact a universal norm, but continues to be applied by the state without question. I think that is one of the most interesting aspects that we see, and I think it is related to what I consider the paradox of the establishment clause. II. THE ESTABLISHMENT CLAUSE 5 A. The Paradox of the Establishment Clause Today, we look at the establishment clause and think of it as saying that religion could not be established either in the federal government or the state government. But I would posit that it is probably not what the establishment clause meant at the time of the signing of the Declaration of 4. Rabbi Devon Lerner also participated in this panel. Her remarks entitled Why We Support Same-Sex Marriage: A Response from Over 450 Clergy can be found in this symposium book. 5. See U.S. CONST. amend. I. ( Congress shall make no law respecting an establishment of religion. ).

3 2004] CAN SAME-SEX MARRIGES COEXIST WITH RELIGION? 535 Independence of the United States, because it was not applied to the states until the reconstruction amendments. In fact, what appears to me to be quite clear is that what the establishment clause said was that you could not have had a federal religion, and that each state would be able to decide for itself whether or not it wanted to create a state religion. If you look at the Constitution of the Commonwealth, which of course was drafted before the federal constitution, there are provisions in it that require the payment of religious teachers who, of course, had to be Protestant, not Catholic. 6 So I think one of the things we allowed, as we look at our earliest colonial days, was for religious values to be incorporated into our civil law and then we later reinterpreted these provisions. That is why we have many paradoxes. I also think that our understanding of the establishment clause has changed greatly over time. At the time of the creation of the Declaration, there were not a significant number of persons in this country who were not Christian. There was a very small Jewish population, and almost no other religions. And so, I think it is questionable as to whether the establishment clause was meant to protect people who were not Christian. Happily today we have a very, very different view. Unfortunately, this has created a paradox because at some level, for a very long time we did in fact allow sectarian values, particularly Christian values, to dominate the way our civil law developed. Over time, however, we began to expand and say, wait a minute, there are other faith traditions; the Jewish faith tradition, Islam, and agnostics or atheists. We state very clearly when we talk to legislators that the real tension is between the types of traditions that are appropriate within our civic laws. That is personally what I find really interesting as we lobby against the legislature. B. The Cultural War The second thing that I want to talk about, similar to what Justice Scalia referred to as the culture war in his dissent in Lawrence v. Texas, 7 is that there is a cultural war going on. One of the biggest battles is, of course, is what I call the gender front. An awful lot of this debate is really about gender; whether or not there are going to be strict roles described based on sex. This is being played out very much within religious traditions, and I think the question here is: can same-sex marriages coexist with religion? Well the answer is absolutely yes, if you re from a liberal faith tradition; for example, if you re from reformed Judaism, or constructionist Judaism, the United Church of Christ, Unitarian Universalist, or Quaker. All of these faith traditions already have same-sex marriage and see themselves as religious, although they see themselves very much oppressed, and 6. See MASS. CONST. Part I, art. III S. Ct. 2472, 2488 (2003) (Scalia, J., dissenting).

4 536 NEW ENGLAND LAW REVIEW [Vol. 38:3 furthermore, see this as a matter of religious freedom. On the other side are more conservative faith traditions that have not yet gone through a lot of the gender questions that these liberal faith traditions have gone through. I think one of the things that we are seeing here is, in fact, an enormous discussion of gender identity within religion, which is being reflected in the conversation about our civil law. So, what has happened here, as you go speak to legislators who are Jewish or Unitarian Universalists or from other faith traditions, is that they do not have a problem with equal civil marriage rights. It is very interesting that when you talk with legislators, there is a direct correlation between peoples faith traditions and where they stand on the issue. There is one very significant exception. There are a lot of Catholic legislators who are supportive despite where the church stands on the issue. What a lot of this is also about is that we are seeing same-sex marriages today. It is almost a proxy issue for the larger issues that are being played out in religion over gender-driven roles of men and women in society, and the attempt by orthodox religious traditions to be able to justify their position by saying, this is what the civil law says. The problem for a lot of faith traditions is that they will appear to some people to be prejudiced or bigoted if the civil law does not agree with where they stand and that is, I think, driving an awful lot of conservative faith traditions to want civil law to be in conformity with their religious traditions. I do not think that the fundamental issue is really about same-sex marriage. I do think the fundamental issue is about the role of women, and this has a lot to do with the split between the conservative or orthodox religions and the more liberal traditions. Faith traditions which have given women full equality tend not to have a problem with equal civil marriage rights or, for that matter, religious marriage. But faith traditions that have yet to give or may never give equality to women, which of course is their right within their tradition, have a great deal of opposition to equal civil marriage rights. Again, this is really about gender and sex, and to the extent that we are having trouble having that conversation very frankly makes the marriage debate a proxy for it in society and at the legislature. We have been confronted with some very interesting questions and perceptions. The first is that all faith traditions oppose equal civil marriage rights. One of the most interesting things that we find as we lobby, as we talk to people, as we talk to the public, is that there is this widely held view that all faith traditions are opposed to equal civil marriage rights. People are genuinely surprised to find out that there are so many faith traditions that have same-sex religious marriage. This reality forces people to rethink the issue. I would posit that this civil rights struggle that we are having today about civil marriage rights for same-sex couples has, in fact, been

5 2004] CAN SAME-SEX MARRIGES COEXIST WITH RELIGION? 537 allowed because so many religious faith traditions have first had religious marriage for same-sex couples. And here again I think we know there is this suggestion that having civil marriage for same-sex couples would be a radical notion. But, if there was a revolution that revolution happened long ago. That revolution happened when women in many faith traditions became equal, and when many faith traditions started to perform religious marriage of same-sex couples. Today, the question is whether or not our law is going to catch up with society and respect our new interpretations of freedom of religion and the establishment clause. III. FREEDOM OF RELIGION I have talked a little bit about the establishment clause and now I want to talk a little about freedom of religion. We take it very, very seriously in this country and one of the interesting things is that we have not been able, at the legislative level and at the general public level, to separate out the issue of civil marriage on the one hand and religious marriage on the other. Civil marriage, of course, is a gateway to a basket of about 1400 legal protections. Religious marriage is a blessing that confers no legal rights or benefits. But there is a common perception that these two things are the same, and that if one were to grant equal civil marriage rights to same-sex couples then this would force religious traditions to also have their clergy bless and recognize same-sex marriage between same-sex couples. Because we take separation of church and state so seriously, we are genuinely troubled by this notion; however, this is in fact an incorrect perception. If we were to legalize equal civil marriage rights for same-sex couples, no faith tradition would have to recognize or perform marriages for same-sex couples, much in the same way today that the Catholic Church and other faith traditions often do not recognize civil marriages. For example, if a person is divorced and then enters into a second civil marriage, the church may not recognize that. Orthodox Judaism very often does not recognize civil marriages nor for that matter religious marriages. But there is an incredibly strong perception that it is not that there is an opposition, per se, to same-sex marriage the right of gay and lesbian couples who have entered into loving, lasting, committed relationships to receive the legal protections of marriage but that we will force faith traditions who do not believe that there should be marriage for same-sex couples to perform these weddings and recognize these marriages. If we can get people to understand the difference, that our principle of separation of church and state in fact is not threatened by legalizing civil marriage rights for same-sex couples, then opposition to same-sex marriages dramatically decreases. What we have done here is to confuse people into thinking that people oppose same-sex marriage because of their religious beliefs as opposed to because they perceive it as a threat to the separation

6 538 NEW ENGLAND LAW REVIEW [Vol. 38:3 of church and state. If we could just get people to understand the difference between religious and civil marriage, that, in fact, faith traditions will be able to continue to operate independently of the civil law as they always have, we will see dramatic increases in support for equal civil marriage rights for same-sex couples. One of the things up in Congress is that people are very troubled by the fact that reformed Jews and Quakers and people married in the United Church of Christ, that their marriages, their same-sex marriages, do not receive the benefits of civil marriage. And again, I think this also supports the notion that what we have is a problem within both the legislature and the general public, of our understanding of separation of church and state, how it works, and how incredibly protected, in fact, faith traditions are by this legal construct. One of the interesting things that we hear from the Republican camp of the legislature is that there are these conversations about things like monogamy, and I find this very, very interesting because what has happened very often is that there is an idealized view of what marriage is or what marriage should be. We have a huge problem talking about the reality of marriage today in America, because to have an honest discussion is to recognize that it does not meet the ideal. What we find very easy to do is have a conversation about these issues, in the context of same-sex marriage. That is, we have all sorts of breakdowns in family structure in heterosexual society but we cannot really talk about, for example, infidelity in the marital relationships, because we all know that marriage is a monogamous relationship, so we are told. So what we do is talk about it in the context of same-sex marriage. I want to see by a show of hands, do people understand what I am talking about here when I say this? I see some hands going up and some hands going down. What I am trying to convey here is that there are ideas about marriage that we have that are held sacrosanct by many faith traditions; for example, monogamy. The reality of course is very different. There is so much infidelity. How do we talk about that in a society which says, by definition, that marriage is a monogamous union between one man and one woman? What we do instead, by proxy, is to say that same-sex marriage cannot be marriage because of problems such as potential lack of monogamy. But that already exists on the other side; we just will not recognize it. We cannot recognize it there, but we can talk about it here. It is really fascinating to me as we go up to the legislators that people are constantly saying to us, you cannot have same-sex marriage because of X, Y, and Z problems. However, these problems completely exist in the institution of heterosexual marriage.

7 2004] CAN SAME-SEX MARRIGES COEXIST WITH RELIGION? 539 IV. CONCLUSION We may, as a society, want to make the institution of marriage evolve in one way or another way, but that should be inclusive. All we are seeking in equal civil marriage rights for same-sex couples is to be included in an institution that already exists. There is nothing about including same-sex couples in the institution of civil marriage that would in any way alter it, because the revolution, if there was a revolution for civil marriage, occurred during the century when men and women became equal with equal status. If there was anything that was constant in marriage until this century, it was that marriage was a relationship between one person who was male with superior equal rights and one or more people with inferior legal rights, and that one or more person was female. That changed in this century such that for the first time marriage became egalitarian. When marriage became egalitarian, the exclusion of same-sex couples became an obstacle for GLBT 8 equality. I think that it is important if we go back and look at it both in religion and civil law. It was not something that the gay and lesbian community was struggling for, especially with civil law, say at the time of Stonewall. 9 It is only as the institution of heterosexual marriage became egalitarian that we began to seek equal civil marriage rights because it became an obstacle. For the first time it became something that gays and lesbians seek and in fact need because it is a barrier. Ultimately, I think it is religion, the liberal faith traditions, that are making this issue possible because they have already said, from Judaism to the United Church of Christ, that gay and lesbian couples can marry. So when people say there is not marriage for same-sex couples, well, there is marriage, as we have heard in Belgium, the Netherlands, and Canada. More importantly, there is marriage in Judaism, religious marriage, and there is marriage in many Protestant faith traditions. Thank you very much. 8. Gay, Lesbian, Bisexual and Transgender. 9. In 1969, the Stonewall Bar in Manhattan, which was comprised of a predominantly gay crowd, was raided by police officers for allegedly lewd acts. The patrons of the bar fought back against the police brutality. It is considered a landmark occasion because it marked one of the first times that the gay community had fought back for their rights.

8 540 NEW ENGLAND LAW REVIEW [Vol. 38:3

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