Same-sex marriage could spell trouble for church
U.S. bishops’ counsel speaks to Latino leaders, urges passage of Amendment 2.
Published: 10.07.08
Once the legal definition of marriage changes, it changes in each and every area of law where the church is regulated. There will be church-state conflict.”
–Anthony Picarello, legal counsel, U.S. Conference of Catholic Bishops
MIAMI | What’s in a definition?
In the case of the word “marriage,” a whole lot of potential trouble for the Catholic Church, according to Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops.
He spoke in Miami Oct. 1 to members of CALL, the Catholic Association of Latino Leaders. The subject is timely in Florida because voters will decide this November whether to enshrine in the state constitution a definition of marriage as “a union between one man and one woman.”
Picarello said problems could arise if the amendment does not pass, and the Florida Supreme Court eventually does what the Massachusetts and California supreme courts have done: expand the definition of marriage to include same-sex unions.
“Once the legal definition of marriage changes, it changes in each and every area of law where the church is regulated. There will be church-state conflict,” Picarello said.
He cited trust and estate law, family law, employment law, tax law, health law and property law as areas where “the legal infrastructure protects and reinforces marriage.”
“Once a same sex marriage amendment becomes the law, it harnesses those other protections for marriage in the service of a relationship the church has to condemn,” Picarello said.
For example, as an employer, the church is bound to follow labor laws. So what if one of the teachers at a Catholic school gets legally married to someone of the same sex? Should the church dismiss that teacher on moral grounds, he or she could sue on the basis that the firing constitutes discrimination based on marital status.
The litigation alone could drain the financial resources of the church. Or “it could end up that the state forces the church to accept that person as an employee,” Picarello said.
“The question doesn’t even arise until the legal definition of marriage is changed,” because until that time, state laws “have largely been in harmony with the church’s view of marriage. Now, (those same laws) are going to be the engine for conflict.”
The government also has tools at its disposal to enforce its revised definition of marriage, such as taking away some of its privileges, Picarello said.
For example, if priests refuse to marry same-sex couples, the state could take away their civil authority to marry. Couples would have to go to the courthouse to get married under civil law and then to church to be married under canon law. Right now, priests perform both functions during the church ceremony.
Something similar already has happened to justices of the peace in Massachusetts who were not permitted to opt out of the state’s same-sex marriage provision for reasons of conscience.
More worrisome, Picarello said, is the legal argument that not accepting same-sex marriage is a form of discrimination against a particular group of people, an argument which entirely bypasses questions of church-state separation and religious freedom.
A case in Montana, for example, sought to impose tax penalties on a church that vehemently supported a marriage amendment such as the one being proposed for Florida. The church lost the case. In Philadelphia, another lawsuit argued that opposition to homosexual conduct equated “hate speech.” That one, fortunately, was “stopped dead in its tracks,” Picarello said.
Nevertheless, he warned, “the concept that’s taking hold is that one is essentially a bigot for adhering to a traditional view of marriage. Once you’re in that category, it’s kind of open season on you.”
He added that Florida’s amendment 2 “is absolutely critical in this regard” because if it fails “it would give the Supreme Court of Florida latitude to do what the Supreme Court of Massachusetts did and what the Supreme Court of California did. It would prevent the Supreme Court from imposing marriage by judicial decision.”
“The main fight is in the culture,” Picarello added. “If the idea takes hold in the culture that it is cruel and bigoted to treat same-sex couples differently than married couples, nothing much is going to help us.”
Unfortunately, he concluded, “the law drives the culture, not the other way around.”
Florida’s bishops are urging a “yes” vote on Amendment 2.
Miami Auxiliary Bishop Felipe Estevez, spiritual director of the south Florida chapter of CALL, urged members to “mobilize the consciences of our citizenship to vote massively in favor of amendment 2.”
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