Of “Revision” of Marriage Rites

The debate over whether the proposed marriage rites authorized under Resolution B012 of the 2018 General Convention constitute “a revision of the BCP” or “trial use in accordance with Article X” is moot. Article X provides for the authorization of trial rites "throughout this church" as part of the revision process of the BCP. 

So when someone says these rites were "not proposed as a revision" that only means they were not proposed under the first part of Article X as a “first reading” to be approved finally at the next session of General Convention. That is a procedure only undertaken when rites have been tested and are ready for their final form

It is not at all unusual for a rite to be authorized in the manner of B012. Since the early 60s, in the leadup to the wholesale revision of the BCP in 1976/79, the various revisions of individual liturgies were published, promulgated, and authorized “for trial use” until, in 1976, the “first reading” of the whole new BCP was approved, and the same (with only a couple of minor emendations to take account of the approval of the ordination of women) ratified in 1979. The marriage rites are now in the exactly the same situation as the numerous revisions of other rites, including matrimony, that were published from 1964 on; that is, as Article X says, they are authorized “for trial use throughout this  Church, as an alternative at any time or times to the established Book of Common Prayer or to any section or Office thereof,” as “a proposed revision of the whole Book or of any portion thereof...” (emphasis mine.)

Meanwhile, part of the reason Bishop Love of Albany has been found wanting is due to the marriage canon (I.18.1), which states that all clergy may solemnize marriages using “any of the liturgical forms authorized by this Church.” The rites are unquestionably authorized, and Bishop Love interfered with that clerical right, though he had absolutely no need to do so. 

Tobias Stanislas Haller BSG

On Originalism

Originalism is a useful tool in determining authorial intent, but apart from that it is self-defeating as a legal philosophy. To understand the intent of the framers of a document by examining the original meaning of the words they used in the context in which they wrote is so obvious as scarcely to need defense. To give a trivial example, if you want to understand a first century BC text in Latin you had best begin by realizing that first-century BC Latin is neither fourth-century BC Greek nor twenty-first-century English, and the cultural contexts of these different languages also play a role in any attempt at discerning what, for instance, Julius Caesar was writing about. Just because the US Constitution is written in English doesn't mean any of the words have the same meaning they do today. I can guarantee that not one of the authors intended "arms" to mean "snub-nose revolvers" or "tactical nuclear weapons" when asserting a right not to be infringed by the state.

So originalism has its purpose as a hermeneutic tool. But it is less helpful — perhaps disastrous — when it is raised to the level of a philosophy, or worse, ideology. The notion that the Constitution should be set in 18th-century stone, and be inapplicable to later circumstances is belied by the fact that the document provides for its own amendment. The framers were intelligent men, aware of the fact that language changes, as do the times. To suspect they regarded their words as inviolable and unalterable, fixed in meaning and application only to what they intended, is to attribute an almost sacral quality to the Constitution, which is nothing short of idolatrous. I will confess I imagine that even some of the authors of Scripture itself would be shocked to think people of a later time would regard what they intended as topical advice to be unalterable divine mandate for all time. How much less would the men of Enlightenment America regard their efforts to be immutable and fixed for all time?

So go to the sources, read the contemporary commentary, study the lexicons and dictionaries by all means. But remember these are but the starting points for understanding and application. If the Constitution is to live — let it live. Do not suffocate it in the bonds of originalism's lack of imagination and understanding.

Tobias Stanislas Haller BSG

Spectrum of Norms and Customs - And Laws

Early morning thoughts led me to thinking about the range of how norms and customs -- and even laws -- might be expressed in adjectives. This is what came to mind:

Forbidden
Deprecated
Tolerated
Allowed
Encouraged
Expected
Required

Obviously many synonyms could be lined up next to, or in-between, several of these, but the nice spectral number of seven seems just right. It also seems to me that most norms and laws fall somewhere on the ends of this spectrum, but many customs lie closer to the middle. And all of these move about a bit as time passes, custom stales and norms and even laws fall into desuetude.

Anyway, such were my early morning thoughts.

Tobias Stanislas Haller BSG

Web of Tragedy

I have been in Baltimore since Monday, to be met with the unrest following the tragic death of Freddy Gray. This strikes close to home, literally. My Baltimore neighborhood (Bolton Hill) shares the same zip code with the neighborhood in which Freddy Gray lived and was taken into custody, and in which much of the unrest and protest and violence has taken place. This was highlighted in a recent story on the PBS Newshour.

The helicopters have been a nightly accompaniment to lost sleep, and have led me to sundry thoughts, which I share with you in no particular order.

• The War on Drugs has had little effect on drugs but has impoverished and criminalized whole populations, here and abroad.
• Who says racism is a thing of the past?
• When looking police in the eye is a crime, who are the criminals?
• And when doesn't flight from police seem like a good idea?
• Abuse of suspects is a heinous crime, even when it doesn't result in serious injury or death. If the "rough ride" is the norm, is it any wonder people hate the police?
• Some in the BPD seem to believe in taking justice into their own vans.
• Time to reevaluate flight as probable cause for pursuit.
• When does what amounts to entrapment become the primary modality of law enforcement?
• “Resistance is futile” ought not be the motto of law enforcement.
• When does media coverage become the cause rather than the observer (cue Heisenberg... and I don't mean the meth king of Breaking Bad.) When does covering the news create the news?
• And speaking of media, since when does freedom of the press mean not obeying the law? There are more media than protestors out after the curfew. 
• I wish Elijah Cumming would run for President.
• How does the view from a helicopter differ from the view from a drone, and to what extent does it further dehumanize the populace. (Cue Harry Lime on moving dots from the top of the Ferris wheel in Vienna.)
• Who doesn't think reactions would be very different if Freddy Gray were white? Of course, were he white the whole situation would be different from the get go, so doesn't that tell us that the problem is systemic?
• Some kids need to be forcibly reminded that their grandmas now have no where to get their heart medicine.

That's the summary for now. God bless us all, and may sanity prevail.

Tobias Stanislas Haller BSG

Sabbatical Leave: How Jesus Dealt with the Law

Jesus said to them, “I will ask you one thing; Is it lawful on the sabbath days to do good, or to do evil? to save life, or to destroy it?” And they were filled with madness; and communed one with another what they might do to Jesus. (Luke 6:9,11)

One of the major conflicts between Jesus and some of the religious leaders of his time concerned the nature of Sabbath observance. It is good, first of all, to acknowledge that this dispute is not, as sometimes portrayed, a conflict between Jesus and Jews. This is a dispute among Jews on a Jewish question, concerning a law which they all would have agreed was a Jewish law. That is, although the principle of the Sabbath went back to creation itself, the ordinance to do no work — to stop, for that is the root meaning of the verb from which Sabbath likely derives — was part of the Law given to Moses on Sinai.

Where Jesus differs from his interlocutors in this conflict is in his moving outside the formal definition of the Sabbath as a time to cease all activity. Jesus recasts it as a time in which to perform acts which he holds to be virtuous in themselves: not mere work but actions that are “good” in that the works represent, in themselves, a thing that is undeniably good: release from bondage — a central theme in the Jewish story. In short, Jesus does not see the Sabbath as an end in itself, or a restriction to be maintained apart from a larger context.

In various of the encounters Jesus has over the Sabbath, he offers differing explanations, and engages in classic rabbinic debate. For example, in Matthew 12 there are two successive arguments about the Sabbath. In the first, his disciples are eating grain they pluck as they walk along (technically not a violation of the Sabbath as it does not constitute harvesting; but Jesus does not engage that quibble). Jesus offers two responses to those who object to this action: he cites David’s violation of the temple-bread taboo, and the present day violation of the Sabbath by the temple priests who go about their work within the sacred precincts. Jesus responds that “here is something greater than the Temple,” making use of a standard rabbinical exegetical tool, qal wa-homer (light to heavy, “then how much more,” identical to the classical rhetorical device a fortiori). Jesus raises the bar with a biblical citation, that God desires mercy, not sacrifice (Hosea 6:6), and asserts that the Son of Man is Lord of the Sabbath. (Mark’s version [2:27] of this controversy includes the important transitional teaching based on the sequence of events in Genesis 1, that “the Sabbath was made for man, not man for the Sabbath” as the reason, again all the more, that the Son of Man should be its Lord.) This "greater than the Temple" theme may be seen as a part of a general anti-Temple trend in the Jesus tradition (one shared with some contemporary sectarian movement such as the Yachad at Qumran), but it also begins to establish a context: that things are good and virtuous as they serve the furtherance of God’s will for human well-being, not simply in and of themselves. Even the Temple is good only in so far as it is not misused, but remains available as a "house of prayer" rather than a "den of robbers."

The point is emphasized in the following scene. Here (in Matthew) it is the opponents who pose the question about whether it is right to heal on the Sabbath. Jesus responds with another qal wa-homer comparison of the rescue of a sheep from a pit with the healing of a human being. The pericope of the woman in Luke 13 (16-17) is treated in a similar way: if you are kind to your domestic animals, releasing them to be led to water, how much more ought you to rejoice in the liberation of a woman from bondage to illness — noting once again the theme of delivery from captivity so central to the People of God.

In all of this it is possible to see how Jesus contexualizes and even relativizes the commandment to cease work on the Sabbath, by holding that acts — particularly acts of deliverance, restoration, and human flourishing — that are good are still good even when done on the Sabbath. That is, they do not become bad because they are done on the Sabbath, and it is not the Sabbath that makes them good, but the good acts which give honor to the Sabbath. Perhaps in giving honor to the Sabbath the works become even more virtuous. His opponents have come to see the Sabbath as an end in itself, not as a context for doing good, but only about "not doing" or ceasing from doing, regardless of how good the action.

In the same way, some see marriage as an end in itself, rather than as a context for the flourishing of loving human relationships, and a sanctified means (though not the only means) for liberation from the primal situation of isolation. Observe that according to the account in Genesis 2 (taking Jesus' lead in noting the sequence in Genesis 1) that people are not made for marriage, but marriage is made for them: that is, the human comes first, and marriage is instituted as a solution to the problem of human isolation, and that only after the first attempt to find a mate for Adam among the animals.

Tobias Stanislas Haller BSG

Dred Anticipation

The Supreme Court of the United States is due to issue its decisions in two important cases that will have major impact on the lives of gay and lesbian persons, whichever way the decisions go. The cases involve the Proposition 8 referendum in California that restored marriage inequality in that state, and the Defense of Marriage Act by which the Federal government chose not to recognize same-sex marriages for national purposes.

The constitutional issues involved in each case are different, linked by two common threads: who will suffer or benefit on the basis of the decisions — gay or lesbian couples who are married or wish so to be — and the constitutional concern for states’ rights. There has been considerable reading of tea leaves by legal scholars with far more experience than I possess, as an interested amateur. The Justices were hard to read during the presentations of the cases, and their comments and questions have been sifted for signs of which way the wind might blow.

Nonetheless, I will offer my assessment in advance of the release of the decisions — almost certain to appear next week, either on Monday or Thursday. I do not think the Justices will pick up the rights issue as a fundamental matter, or at least not in a majority decision. Whether one is an originalist or a strict constructionist or a revisionist, it is likely a step too far. However, when it comes to states’ rights, I think the Court has a logical and consistent hook on which to hang a pair of decisions that defer on Prop8 to the State of California (including its courts and legislature as well as its plebs) and strikes down DOMA as a rejection of the up-until-recently standard recognition that marriage law is settled by the states, and a marriage recognized in a state should also be recognized for Federal purposes. (I do not understand that the Full Faith and Credit Clause was part of this case, so this may not mean that all states will have to recognize marriages made in other states where they are made under that state’s law. I welcome correction if I have misunderstood.)

On the other hand, the Court could hold, likely by a small majority, that these cases have come too soon. How history will judge this Court remains to be seen. Will this be another Dred Scott, or a Brown or Loving? History is the only truly neutral judge, and there is no escape from its verdicts.

Tobias Stanislas Haller BSG

---

Thought for 1.23.13

Political fundamentalists read the Constitution in the same way that religious fundamentalists read the Bible: without context. While claiming to be faithful and literal, their understanding often wanders very far both from the text and its original intent.

Tobias Stanislas Haller BSG
Thinking particularly of those who imagine a militia was designed to attack the government rather than to serve it...

On the Ranking of Rights

Thinking Anglicans has a very thorough round-up of reports (including the full statement of the court) concerning the European Court of Human Rights decision on some alleged infringements of religious rights on the part of employers.

The principle upon which the court bases its decision should come as no surprise to those familiar with human rights, that is: that one's exercise of a right should not constitute an infringement of another's exercise of a right — whether the same right or a different one. In particular, it is abundantly clear that the right to one's religious beliefs and practices does not include the right to deny others a public accommodation or service simply on the basis of one’s religious objection to the manner of life or behavior of that other person — including his or her own religious beliefs.

The court found that the employer who said an employee could not wear a cross because it conflicted with brand identity had indeed infringed upon her rights; but in the case of an employee who was offered an alternative way to express her religion because the means she chose to express it constituted a possible hazard (offered a pin instead of a cross on a necklace), the court found that the offer was reasonable. The other two cases involved people whose employers required them to provide services to mixed-sex and same-sex couples alike, and the court ruled that their refusal on the basis religious objection infringed upon the rights of those to whom they wished to deny service.

This decision, taken as a whole, provides a good balance in addressing the hierarchy of rights. If we accept one legal definition of a right as not simply a freedom to carry out a given activity, but as placing an obligation upon others (whether individuals or society as a whole) it is perhaps easier to see the issue in terms of a ranking of obligations: those who provide public accommodations are obliged to provide them without discrimination; employers are obliged to protect their customers and clients, and provide services without discriminating; a religious believer who feels an obligation to profess his or her faith through the wearing of some visible symbol, or to profess a given belief, has a right to do so unless it conflicts with some other duty which they are also obliged to carry out in reference to someone else.

It is earnestly to be hoped that a similar clarity of thought can be applied to the issue of the provision of health insurance.

Tobias Stanislas Haller BSG

Cultural Dissonance

Many conservative Christians are willing to acknowledge that the Scripture reflects the cultures of its time when it comes to social and economic issues, but seem to be unable to see the same influence of long-gone culture on attitudes towards sex and sexuality. They will sometimes find ingenious ways of sheltering the latter from a social or cultural critique or amendment, such as asserting that some things are creation ordinances while others are mere management of human weakness — which doesn't hold up well on examination, since some of the commands issued at creation have since been eliminated or ignored; or by claiming that the Law of Moses can neatly be divided between "civil" and "sacred" matters — a notion the theocrat Moses would have found to be very odd indeed.

It is fine to say that the church should not bend to the culture of this age, but also fair to point out that the church need not bend to the culture of some former age, merely on the grounds that the culture in question was dominant at the time the scriptures were recorded.

Tobias Stanislas Haller BSG

Going Courting

A collection of cases is heading to the European Court of Human Rights concerning alleged infringements on religious liberty by people forbidden to wear crosses in the workplace and being required to perform civil partnership registrations for same-sex couples, among other related matters.

The thing that strikes me in this is the question of how deeply Christian it is to be concerned about articles of religious clothing or decoration, and the ability to make determinations about the moral status of other parties, refusing to have anything to do with them. WWJD? Perhaps more directly, WDJS (what did Jesus say?) about such matters. Critique of broad phylacteries and fellowship with outcasts seems rather to have been his metier.

Tobias Stanislas Haller BSG
hat-tip to Thinking Anglicans

Supreme Court on Freedom of Religion

In an earlier post, I had said that I did not think the requirement that health insurance including contraceptives being available to the employees of church-related institutions violated the constitutional right to the free exercise of religion. This afternoon I came across a passage from the SCOTUS Opinion on Employment Division v. Smith (1990) and think it supports my view, though the circumstances of the case were very different. The Opinion was penned by Justice Scalia.

Here is a portion I think relevant to the contraception discussion (read the full document if you wish.) :

We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases).

I would argue that this seems that the general health care insurance requirement, which is valid and neutral, and not explicitly religious, would not be held as a prohibition of the free exercise of religion. I'm also pleased to see that Justice Scalia makes the argument I did concerning withholding ones taxes out of a religious objection to the fact that some of those taxes are used for warfare.

Tobias Stanislas Haller BSG

Jesus and the Law

It is sometimes said — I think I’ve said it myself in the past — that Jesus extends the scope of the Law in his moral teaching. An early morning train of thought leads me to want to revisit this concept. Jesus does not expand on the Law, in the manner of the Rabbis; he deepens it by finding the moral foundational spirit behind and under the letter.

To contrast the two: the Rabbis, in the interest of “putting a fence around the Torah,” enacted protective measures that helped ensure that the Law would not be broken. For example, though the Law requires that a kid not be boiled in its mother’s milk, the Rabbis, in order to prevent that possibility, ordained that no meat or milk should be prepared or eaten together; this later came to mean separate sets of cooking and serving ware for meat and dairy, and rules about the amount of time that had to pass before an item from the other food group could be consumed.

Jesus, on the other hand, doesn’t deal with such fine points of corollary laws and regulations, but literally cuts to the heart of the matter. In response to the law that says “Do not kill,” Jesus advises, “Do not hate.” In response to the law that says, “Do not commit adultery,” Jesus advises men not to look with lust at another’s wife, committing adultery in the heart.

Ultimately Jesus doesn’t just amplify the Law, he reorients it inwardly, moving it from legality to morality. He declares to be immoral things that are strictly legal (such as hatred or lust), and holds as moral things that are technically illegal (such as breaking the Sabbath to do good).

The irony is that many in our own time take the path of refined and insistent literal legality rather than looking to the heart of a generous and self-giving and spirit-filled morality.

Tobias Stanislas Haller BSG

---

No Way to Run...

Every time I come upon the passage from the 24th chapter of Acts (appointed for the Daily Office today) I am reminded of the resonance between references to the early church as “the Way” to the Rabbinic concept of Halakah: the law as a Way in which one walks.

This struck me particularly this morning because I have been thinking a great deal about the dangers of ideology, and how an ideology or a theory (properly understood as a “way of seeing”) can actually prevent one from seeing a deeper reality. The phenomenon is known as “perceptual set” in some circles, “paradigm blindness” in others. Put briefly, the way you see the world can come to dominate what you see. I referred in an earlier post to the old saying, “If your only tool is a hammer, everything looks like a nail.” If as Thomas Kuhn suggests, we need a shift in our paradigms in order to see changes in reality, it seems to me that across the board in many areas of our lives we need a whole new shift-load of paradigms!

For both in church and state these days ideology is at the forefront and reality has become deeply shrouded in veils of preconception. From conversations on climate change to sexuality, the debt crisis to marriage equality, the verbiage — I cannot in good conscience call it conversation for the most part — appears to be dominated by ideologies and theories rather than fact. (I cannot be the only one who is appalled to see what has become of journalism these days: and there are times I long for a supply of bricks next to my easy chair to toss through the television screen when a “news” program cuts from an actual live speech by a world leader to a panel of pundits even before the speech is finished!) Whatever reality there may be is cocooned in layers of opinion, and there is no sign of a butterfly emerging. Not a chrysalis, but a mummy.

But back to Saint Paul and the rabbis, and this idea of the faith being a “way” — and of course acknowledging that the Jewish tradition had long understood various “ways” as being either wicked or good, depending. (See Psalm 1!)

The major contrast I want to note is the difference between a way and a place. In this case I am particularly thinking about how Paul’s alleged insult to the Temple (in fact baseless) led to his having to defend this new Way. And what is ironic is that the old Way of rabbinic Halakah itself turned out to be the means by which this form of Judaism was able to survive the destruction of the Temple — a Temple which God appears, from the early record, not actually to have wanted all that much; God preferring the Tent and Tabernacle, or the terrifying Chariot, to the petrified establishment on the hill of Zion. (Ezekiel sees a new Temple, Revelation assures us there is no Temple in the New Jerusalem. Take your pick.)

So it appears to me that Christianity itself could well be seen as an emergent non-Temple-based Judaism (among the many Judaisms of the first century) that gets detached and takes on a life of its own; much as rabbinic (rather than Temple) Judaism continued the life of that faith because it had come to see the living out of the Way of God was not dependent upon an external institution but an internalized (both individually and corporately) Way of life under the guidance of a transcendent God.

So does this have anything to say to our current ecclesiastical troubles — say, in relation to a proposed Anglican Covenant or the Indaba Process as “ways” of working? Or to our civic, national, or international concerns — government as institution or government as way of being?

Discuss among yourselves and report back!

Tobias Stanislas Haller BSG

---

Of Starfish, Spiders, and People

This morning I listened to an NPR interview with Ori Brafman, author of The Starfish and the Spider:the Unstoppable Power of Leaderless Organizations. It got me thinking about how little I care about ideology. That is, I'm not one who goes for the starfish or the spider, the federation or the dictatorship, monarchy or democracy. Starfish are great at self-perpetuation and coral reef predation, but what else do they do? Spiders (at least some of them) build webs of astonishing intricacy. Both seem to be good at what they do.

But what about humans? People can be good or bad at governing themselves and other humans, and no system will guarantee a maximum best of all possible worlds. I reject the old saw that "democracy is a terrible form of government but better than all the others" simply on the facial evidence. There have been terrible, repressive, abusive and dehumanizing democracies; and there have been noble, righteous and humanizing monarchies.

In short, systems, as interesting as they may be, as important as they are, are not the answer. Those who put their hope in a system --- that if we just got it right --- all would be well, are fooling themselves with the dream of Utopia, which means nowhere.

I would start the Pragmatist Party if I thought starting a party would accomplish anything. But I know it would just be one more voice in the whirling storm. Yet it is ultimately how each human acts -- each human him or herself a form of government with a head and heart and hands -- that will produce the net effect of any society's worth.

And yet each one of us is living in the flesh the drama of coalescence and senescence and evanescence; each of us a little State soon subject to overthrow as the Monarch loses power, the Workers go on strike, the Resources are exhausted.

Vanity, all is vanity, saith the Preacher.

Tobias Stanislas Haller BSG

The Nature of a Freedom

The right to freedom of religion is the right to believe as one chooses, and practice those beliefs. It is not the right to insist that others conform to those beliefs.

On this distinction hangs some of the tension in the DADT Repeal vs. Some Army Chaplains, and much of the pressure from religious groups against same-sex marriage, and in the recent decision of the UK Supreme Court.

Tobias Stanislas Haller BSG
with h/ts to Episcopal Café and Thinking Anglicans

DOMA’s Irrational Basis

So I was listening to NPR this morning and was happy to hear the news that a federal suit is going to be filed in an effort to overturn DOMA —the fantastically misnamed Defense of Marriage Act. Of course, one of the opponents to a judicial overturn, a member of one of the many conservative groups out there — which one I can’t recall, something with “Alliance” in it — noted that in order to prevent the overturn, all that is needed is to show that there is a rational basis for limiting marriage to mixed-sex couples; and, of course, he said that procreation was such a rational basis.

The problem is that if something is the raison d’être (the rationale or basis) for granting a legal status, the condition for the status and all that goes with it — in this case the rights and responsibilities of marriage — should relate to all who seek that status. Even more importantly, such a rational basis for a status requires a higher standard of proof if you are going to exclude people from that status on that basis.

As I have pointed out many times before, procreation can take place apart from marriage and marriage from procreation. People who are incapable of procreation are not excluded from obtaining the legal status of marriage. In fact, in five states of the Union (AZ IL IN UT WI), the law permits marriage to first cousins only on the conditions either of advanced age or infertility or both — procreation is effectively forbidden in the case of these marriages! So it can hardly form a rational basis for them.

More importantly, many if not most of the benefits and responsibilities of marriage have no necessary connection with procreation: Social Security and disability benefits, visitation rights, pensions for surviving spouses, inheritance rights, tax status, and so on. These things all apply whether one has children or not, and whether one is capable of having children or not.

To argue that procreation is a rational basis for marriage that only applies in certain circumstances (and thus, hardly a basis), or that a factor that applies only in some marriages has greater importance than factors more likely to be important to all marriages (and thus, hardly rational) — is baseless and irrational.

The real rational basis for marriage is far simpler, though the state might want to avoid the religious overtones: it is not good for the human to be alone (Genesis 2:18) and two are better than one. (Ecclesiastes 4:9). Seems rational to me...

— Tobias Stanislas Haller BSG

---

A Follow-Up Thought

Following up on the thought from the 23rd...,

To grant special exemptions (from the need to obey laws that protect other human rights) on the basis of religion creates a hierarchy of rights in which religion trumps everything else. This is, precisely, a form of establishment of religion.

Tobias Stanislas Haller BSG

Thought for 02.23.09

When ideology interferes with human rights we tread on dangerous ground — covered, sadly, with many footprints.

— Tobias Stanislas Haller BSG,
in response to this post on Episcopal Café

Why the Courts?

Over at the House of Bishops / Deputies list there's some discussion going on about why we can't have more mediation or reconciliation instead of litigation, in addressing some of the painful controversies with dissident members or parishes and even large chunks of dioceses. Much of the litigation, of course, focuses on the property issues -- mostly real property issues.

I sympathize with those who wish we didn't have to resort to the courts. One often hears Paul's advice not to go before a civil court cited; but then when he got into a spot with his Jewish countrymen, he appealed to Caesar.

However, I think it is fair to note that in many cases the petitioners who, following Paul in his "appeal to Caesar" modality, are those who wish to remove church property from the control of the larger diocese or church. There have also been a few failed efforts at reconciliation which cast a larger shadow over the successful efforts; this is exacerbated, no doubt, by the press both "sacred" and secular.

There seems to me to be another reality at work: some people just can't be negotiated with; they don't want to negotiate even when negotiation is offered. That -- coupled with the fact that, if I'm not mistaken, about 80 - 90 percent of all such property cases end up favoring the "hierarchical church" -- presents the dissidents with three possibilities:

1) Negotiate and likely and up having to pay a fair price for the property, or

2) Litigate, spending perhaps less than the property would cost, but on the chance you might win and get it for nothing beyond the money spent to press the suit; or

3) Abdicate, walking away and starting anew, but then having to spend a pretty penny to do so.

Given that there is bound to be a cost involved, even the "logical" choice would appear to be (2), unless the legal costs become prohibitive.

This choice is, at least in some cases, also fueled by a high level of a "God is on our side and will deliver us" mentality. A perusal of some of the dissident side's reflection on their court cases, and indeed the whole course of the crisis in the Anglican Communion and environs, reveals that the Deuteronomic Historian's philosophy is alive and well ("If we do what God wants God will reward and protect us..." ) So that emotional pressure adds to the "logical" choice to risk litigation on the 10-20% chance of winning. Beats the lottery, hands down; and inclines the heart away from reconciliation or negotiation.

Tobias Haller BSG

---

Update 12/20/08

This post has engendered a number of comments, some of which seem to derive from portions of it having been quoted out of context -- and with an added gloss -- at SFiF. Fr Matt commented below as well, and I responded to his very courteous note. I want to summarize what I said and add it here as an update, to help clarify what I intended in this brief reflection. I invite you to read the string of comments for further insight.

This reflection was written in answer to the question, "Why can't we all get along" and was an effort to understand why a parish would choose litigation -- from the get-go -- rather than negotiation or abdication. I think my original statement is true in many (not "most" -- as the gloss to my comments asserted at SFiF) cases. It appears to be true in relation to Don Armstrong's parish, and in the California parishes; the story in Virginia seems to be mixed, but as "the witnesses do not agree" I'm content to set that aside. What I'm left with is evidence from past reading in the Clergy Law and Tax Report, not just from TEC cases, but other churches. Good-faith negotiation seems to be rare, and litigation common. I've also spelled out [in the comments] the pressure to litigation from the "hierarchical church" side -- I don't mean to put all of the "blame" on dissident parishes, by any means.

In part I was trying to lay out the reasons for choosing litigation over negotiation (which takes both sides' agreement, and which often fails early on) or abdication (the third option I describe) from the dissident side; which Phil dismisses as "trivial" or so obvious it doesn't require saying. To my mind, the effort to alienate property rather than walking away and starting fresh, especially in places where the track record on court decisions is against the congregation and in favor of the hierarchy, requires some explanation as to what drives the movement in that direction. And I think it is the small but real hope of winning the case, and a very firm belief in the rightness of the cause. That does not seem to me to be unreasonable.

T

Civil Union Division

A parable

Once there was a restaurant that served a wide range of foods, some with meat, and some not. A group of vegetarians asked the restaurant if they would mark the menu with indications as to which dishes contained no meat. The owners said they would not do that, but would provide a separate menu listing the vegetarian dishes. Some of the vegetarians also said they didn’t want to eat in a restaurant that served meat at all, and took up a collection to start their own restaurant.

In response to my two previous posts touching on the Roman Catholic support for the adoption of Proposition 8 in California, the conversation has wandered away from the original theme — the role of the church, and the extent of its mendacity and bad faith, in this political action — and turned to the larger question of, “Why marriage rather than civil unions?”

The question was framed by commenter Rick, who opines that CU

is an innovation whose more open and evolving nature may more flexibly address questions of how gays and lesbians see these relationships.

He bases this suggestion on his recognition that same-sex couples

are of course already there, and many have custody of children from prior heterosexual relationships. So there undoubtedly need to be social institutions and structures to address the reality. The great question is whether we should shoehorn these relationships under the rubric of marriage, or, if there is indeed something distinctive about them, whether we should create new structures to address newly-recognized realities.

He also asks about the suggestion that the notion

that couples living together, not only may get married, but should get married, one that should be imported into all relationships? I don't argue; I only ask the question. The idea of marriage is a large one, with far-reaching implications for behavior in the net of interrelated ideas — not only fornication, but incest, adultery, divorce, annulment, separation short of divorce, marriage by estoppel, sexual fidelity, exclusivity, and duration. Legal marriage is much more a set of restrictions and responsibilities than rights, and its legally enumerated contours don't even begin to address unwritten social and religious norms. I only ask the question: Are they really desired?

He then observes

One distinctive characteristic of homosexual couples is that, if one or both has custody of children, there is always a “third,” whether divorced or deceased or in prison, whether an active outside parent or a sperm donor, or anything in between, there is always someone of the opposite sex somewhere in the background. How to deal with that inevitable “third man” or “third woman”? I don't know. But it seems a matter that might possibly be better addressed in the context of civil unions than in importing the norms of divorce and custody from our current marriage law, where such is the exception, not the norm, and only comes up in the context of a breakdown of marriage.

Let me begin by responding to his final point, which I think betrays the root of his difficulties in coming to clarity on this subject. The existence of a “third party” for same-sex couples with children may be inevitable, but it is neither “distinctive” nor “characteristic” of same-sex couples taken as a whole. It is, as with mixed-sex couples, a factor only affecting some same-sex couples. And, just as with mixed-sex couples, it only involves those with adopted children, or children from a previous relationship.

This addresses Rick’s thinking about the purposes of law — and whether it makes sense, in his terms, to “shoehorn” same-sex relationships under our current marriage laws. Noting for the record that marriage laws vary significantly from state to state, still in general it seems that the laws, as written, do not in every particular of their statutory limits have application to all marriages. Obviously only marriages with children will be affected by provisions of marriage concerning children; only marriages that end in divorce will be touched by the divorce regulations. There was a time in many places where adultery was a criminal offense, and obviously that portion of the law only concerned adulterers.

So the current marriage law contains provisions that apply only to some marriages, in certain situations. Given that, why create a new “Civil Union” law — on the pretext of greater uniformity — when no such uniformity exists in the present law? Same-sex couples can be covered perfectly well under the existing marriage laws (as indeed they are in Massachusetts, and were for a time in California), the provisions on adoption, custody, divorce and so on coming into play as needed.

In short, there is no need for “separate but equal” — a separate menu, to employ my parable — even if such a separate status could truly be equal. It simply leads to an unnecessary multiplication of the laws to no apparent end other than the ability to say, “This is not that.” Thus the sole purpose is to make a separation, not to create equality.

Is separation desireable?

Rick also asks if gays and lesbians really want marriage rather than provision for civil union. It is quite true that there are some gays and lesbians who want to have nothing to do with “marriage” — feeling it to be a heterosexual artifact with little or no relevance to them. (I would also add that there are no small number of heterosexuals who feel the same way.) They are represented in my parable by the strict and doctrinaire vegetarians. However numerous such constituencies, it is also clear that there are many same-sex couples who do want to marry — just as there are many vegetarians who for social reasons wish to dine with their non-vegetarian friends. Apparently there are some thousands of same-sex couples who have taken advantage of this opportunity in the short time it was permitted under California law. My point here is that in a free country people should be permitted to make such determinations without the interference of mob rule to the contrary, unless some good reason can be shown to prevent such relationships being granted civil recognition.

Civil action is civil action

Which brings me to the other question Rick raises: What’s wrong with civil unions? Well, it seems to me to be relatively clear that a civil marriage is a civil union. It is not a religious ceremony — and no one is saying that any religious body is either forced to perform a religious ceremony for a couple joined under the civil law, or to recognize such a civil marriage. In fact, many churches are by their own law forbidden to do so — there are many civil marriages that cannot be recognized by a church. For instance, the Roman Catholics would not ordinarily recognize as a valid marriage one in which one of the parties was divorced, not having obtained a statement of nullity. Episcopalians are not permitted to perform a marriage where neither of the parties is baptized. (The fact that an Episcopal cleric can perform a marriage in which one of the parties is not baptized is recognized as a peculiar development, and stands in some conflict with the canon on marriage. But that’s a topic I’ve expanded on elsewhere). In short, there are any number of religious restrictions that do not apply in the civil sphere.

So is all of this a logomachia — a battle over words? It would seem so. Some of my conservative correspondents have noted they really don’t care if civil unions are permitted — or even civil marriage, which they will of course not recognize as marriage. And an air of inevitability hangs over the question as a younger and more tolerant generation arises, fewer and fewer of whom are interested in being part of intolerant religious bodies.

The whole idea that marriage is a religious institution is what is strange to me in all this. Marriage — in its many and various forms throughout history — is a human phenomenon with many manifestations, including variations in number, gender, and duration. Even the so-called Judeo-Christian teaching on the subject is a false summary, as Jewish law allowed polygamy, and mandated divorce and even incest in certain cases, while Christian law forbade all of these.

However, in our culture at least, this has been forgotten, and “marriage” has come to be seen primarily as a religious rather than a civil institution. Some suggest going with that flow and reserving “marriage” to the religious, and “civil union” to the civil sphere. My sense is that this is too much a case of toothpaste and tube, and we are left with a term used in both the civil and sacred realms. But it is at least clear that civil marriage is a civil union — and the law should reflect that.

To reiterate: In terms of how people should be treated under the law, there is no difference between a mixed-sex couple and a same-sex couple apart from the gender of the parties: and under the equal protection provision, to treat such couples differently on the basis of sex is a constitutional violation.

As the courts will eventually rule.

And then we can all go home.

Tobias Haller BSG

---