www.byzcath.org Forums News & Events Church News Same sex marriage

SPDundas
An excellent book!
And people overlook that marriage is a two legged institution, you have to have the sexual act open to BOTH of theseprinciples.
Look in the first two chapters of Genesis.
1 Marriage is unitive (Sexual)
2. Procreative
You cannot walk without two legs.
Hence the Churches opposition also to artificial birth control. You excluded the openness to life.
Stephanos I

And that is why a lot of people cannot understand or refuse the Churches teaching on same sex marriage, because they have rejected the moral truths contained in Humanae Vitae.

TN,

Bob is correct. Article IV, Section 1 of the Constitution commonly referred to as the "Full faith and credit provision" provides that:

A federal law attempting to leave the matter of recognizing same sex marriages to the discretion of individual states would be unconstitutional, inasmuch as it would violate the Full Faith and Credit provision.

The only practical solution from the federal perspective would be the adoption of a constitutional amendment defining marriage as an act between two persons of opposite genders. It isn't feasible to amend the Full Faith and Credit provision, since that provision is absolutely essential to the effective functioning of government and assurance of citizens that their rights in any given matter will not be abrogated or abridged by interstate transit.

The situation described above by Incognitus vis-a-vis divorce is precisely why Reno became the divorce capital of America, because Nevada had essentially no residency requirement and, therefore, the legality of a divorce obtained in Reno was not successfully contestable in the courts of any other state. Ultimately, the broadening of grounds for contested divorce, the reduction in waiting time between preliminary and final decrees, and the development of no-fault divorces in most states arose as a reaction to this.

A slightly different twist has been put on the situation of same-sex marriages in Massachusetts, inasmuch as there was a pre-existing, unenforced statute that forbade the marriage of persons residing, and intending to continue residence, in another jurisdiction if the marriage thus contracted would be void if contracted in the parties' jurisdiction of residence. (The original intent of this statute, enacted early in the 20th century, has been speculated as an abortive effort at anti-miscegenation legislation.) Obviously, the present decision to enforce it has only denied the grant of licenses and the performance of same-sex marriages when out-of-staters are involved.

Many years,

Neil

Scripturally, ethically, and morally I think our consensus is clear.

It is the legal ramifications hwere we differ.

If a "married" same sex couple move to a state which does not recognise their marriage, what are the ramifications? Does it "mean anything" not to recognise the marriage?

Bob,

I've heard this argument before, but I think it is a red herring. The specifications as to who qualifies as a member of the clergy for purposes of performing a marriage varies from state to state, and range from relatively restrictive to very liberal. To the point that you raise, in probably half of the states, members of the clergy are required to provide certain documentation to the state to assure their legitimacy and, in some cases, are then "certified" to do so. See:

Requirements to Officiate at Marriages [usmarriagelaws.com]

However, in no state are members of the clergy required to perform a marriage for any persons presenting themselves and requesting same - in this they differ from Justices of the Peace - who are officers of the state.

There is an arguable legal presumption that the performance of marriage by a member of the clergy is done in furtherance of his/her religious capacity and in accord with the religious tenets of his/her church or denomination. An effort to impose a requirement on clergy that they perform marriage ceremonies that would violate the religious principles of his/her church would violate the constitutional provisions relative to freedom of religion and separation of church and state and be unenforceable.

The analogy sometimes drawn to hospitals being precluded from refusing to perform abortions doesn't hold. Hospitals which accept Medicare or Medicaid reimbursement, Hill-Burton grants, or other federal or state funding may become subject to participation requirements. Clergy in the performance of their ministerial/sacerdotal duties are not recipients of federal/state funding and, therefore, not subject to other than "reasonable" regulation; it would require a showing of "a compelling governmental interest" in the matter to require that they perform any marriage ceremony. The stretch to establish such a showing would boggle the judicial reasoning of even the most liberal court. If we are there, the performance of such marriages would be among the least of worries for any of us.

Many years,

Neil

Roger,

Yes, it does. Many of the major "practical" considerations cited by same-sex marriage proponents relate to everyday matters such as:

• inheritance;
• tax filing status;
• spousal rights of decision-making in matters of health (i.e., emergency authorization for surgery or authorization to terminate life support);
• visiting in hospital ICUs when family-only restrictions are imposed;
• spousal relationship for purposes of health insurance coverage;
• community property, in states where such applies; and,
• joint property ownership in states where the legal principle of "joint tenancy" (which gives specific protections to realty jointly owned between spouses, as opposed to that jointly owned between unmarried persons) applies.

And, as stated above, the option on the part of any state to not recognize such a "marriage" doesn't exist if the "marriage" was legally contracted in the state in which the parties entered into it.

Many years,

Neil

Dear Neil:

Not exactly. While you are correct that the "Full Faith and Credit" clause of the United States Constitution does provide that one State is to respect the laws of a sister State.

However, there is a judicially-recognized exception to that rule. Specifically, if a law enacted in State A is contrary to an articulated fundamental public policy of State B, then States B does not, under Supreme Court precedent, have to render "full faith and credit" to that particular State A law. It's a difficult standard - but not insurmountable.

Of course, you are more than correct when you indicate that the recognition of same sex "marriage" opens up a whole litany of issues.

One very interesting legal point is on the issue of Federalism. What happens when a "married" gay couple decides to file a joint tax return as "married."

Better yet, will committed homosexuals in a "no gay marriage state" be able to file as singles and not pay the marriage penalty while those that are legally "married" in a pro gay "marriage" State do not.

This, of course, is to say nothing of the moral implications, but I am wearing my lawyer's hat today so I will limit my remarks to the law today.

Yours,

hal

Hal,

Am I correct in remembering that an "articulated fundamental public policy consideration" requires a showing that must be more formally articulated than that embodied by the term of art "compelling state interest", a concept most frequently relying on natural law, common law, or a reasonable man's perception, and infrequently supported by codification or statute. If so, I would see it as requiring that it should be expressed in a constitutional provision, rather than merly being the subject of a legislatively enacted codification or statute declaring any such union to not constitute a "marriage" in the eyes of State B. (Or, in the affirmative, declaring that a marriage has to be the union of two oppositely-gendered persons).

Since there is no federal marriage statute and the IRS code defines marriage in terms of recognition of the relevant state statute (to the point of acknowledging 'common law unions' only in those states that provide for such), I see such a joint return as validly filed under existing law, with all the attendant benefits.

I would certainly think so, under the same reasoning as above.

Many years,

Neil

Dear Neil:

While I do not think there are any hard and fast rules, I cannot imagine the Supreme Court saying that a state consitutional provision is not a statement of the fundamental policy of a particular State.

However, I believe that the standard can be satisfied by the State legislature enacting a statute explicitly saying something to the effect of:

"It is the fundamental policy of this State that marriage is to be defined as, and limited to, the union of one man and woman and all other forms of union between natural persons are hereby declared unlawful and unenforceable in this State as contrary to its public policy."

As for the tax implications, your analysis bumps up against Equal Protection and other "equality issues." While homosexuals are not a "protected class" under the 14th Amendment, the danger of widely divergent views of what consisutes marriage among the States might be sufficient for the government to step in and define marriage.

That, in turn, raises the political question of how far Congress wants to take the issue. Does it limit the defintion to the Internal Revenue Code, or to federal statutory law or, does it hang the issue on the Commerce Clause and force the States to comply with a federally-mandated defintion of marriage under the Supremacy Clause.

When they say that our Consitution is a living, breathing document, they're not kidding.


Yours,

hal

Neil:

I hope that your faith in the legal system and the tradition of reasoned thinking is justified and continues to be so.

On the other hand, with so many legal opinions deriving from judicial activisim--the finding of new "rights," for example--I am not so sure. Recently there have been citations from foreign courts reported as the basis of some court decisions at various levels. Being that many of these other countries have already moved toward the assumption that the parts of the Christian Bible that speak against the sort of activity discussed here are "hate speech," I wonder how long it will be before we are in that same situation.

Further, I have read accounts by ministers of the Gospel in places like Sweden where it is a crime to preach against homosexuality from the pulpit or teach that it is a sin in catechism classes.

Maybe I've become a bit too cynical about the trustworthiness of human nature. But the onward push to the political correctness that demands we accept this behavior and enshrine it in our culture as acceptable makes me wonder.

In Christ,

BOB