Friday, November 18, 2011

Separation of Church and State Should Mean Separation of Religious and Civil Marriage

Rabbis who work in areas where there are large numbers of retirees (Florida and Arizona in particular) are often faced with the following scenario: a widow and a widower have fallen in love and would like to get married. They may already be living together, but if they get married one or the other of the couple will lose survivor’s benefits, pension, health insurance, and so on. The combined Social Security they will get as a married couple is less than they get as two single people. It is financially disadvantageous to them to get married, but just living together without getting married doesn’t feel right. Will the rabbi be so kind as to conduct a Jewish wedding ceremony for them without them getting a civil marriage license?

Some rabbis will do this, perhaps, and some won’t. But the Rabbinical Assembly, our professional association of Conservative rabbis, strictly forbids its members to do so.

In Minnesota, clergy of many congregations have announced that they will no longer sign civil marriage licenses. The reason? In Minnesota, same sex marriage is not legal, and these clergy members feel that it should be. As a protest against “marriage inequality,” they will not sign marriage licenses for straight couples until they can do so for gay couples.

Here in Connecticut, same sex marriage is legal. But if a same sex couple were to ask me to officiate at their wedding, I would be in a quandary. The official position of Conservative Judaism supports same sex “commitment ceremonies” but cautions that they are not kiddushin, halachic marriage. Rabbis who conduct commitment ceremonies should avoid using the trappings of kiddushin so that it’s clear that what is going on is not halachic marriage. But is it possible for me to perform a wedding that is legally valid in Connecticut but not halachically valid? Frankly, for Conservative rabbis, life was simpler in Connecticut when the state recognized same-sex civil partnership but not “marriage.”

When my brother and I were both living in Washington, DC, one of his best friends asked me to officiate at his wedding. Neither the friend nor his fiance were Jewish. Neither one of them belonged to a religious community but they wanted something a bit more spiritual than being married by a Justice of the Peace. I agreed to perform their wedding, but when I sat down with them to do an intake interview I decided to back out. It turns out that the father of the bride was Jewish. While she did not consider herself Jewish, and by the halachic standards of the Conservative movement she was not Jewish, I decided that this looked a little bit too much like an intermarriage. And since I knew then that it was strictly forbidden for a Conservative rabbi to officiate at an intermarriage, I decided “better safe than sorry.” I am glad I did, because I did not know at the time that another policy of the Conservative movement prohibits Conservative rabbis from officiating at the marriage of two Gentiles.

If faced with the same request today, even if there were not a policy in place that forbade it, I am pretty sure I would tell the couple “no.” I am increasingly uncomfortable with the role of government functionary which officiating at weddings creates.

Rhode Island’s new governor announced in his inaugural address his desire to see same-sex marriage legalized in that state, just as it is legal here in Connecticut and in all the other New England states except Maine. The Roman Catholic bishop in that state, who was in the headlines some months ago with his criticism of then-Congressman Patrick Kennedy’s support for abortion rights, denounced Gov. Chafee’s speech in sharp terms. Like many other Christians, he believes that marriage was ordained by God to be between a man and a woman.

I am not unsympathetic to his perspective. As I wrote above, my own understanding of kiddushin is that it is a relationship which can only exist between one Jewish man and one Jewish woman. The difference is that as a Jew, I recognize that I am a member of a minority group. I do not ask or need state support for my particular moral or ritual perspectives. I have no problem with Bishop Tobin being critical of same-sex marriage, teaching his flock that it is wrong, telling the priests who report to him that they are not to officiate at such ceremonies. But the state is not obligated to conduct itself according to Catholic teaching, any more than the state should ban the sale of pork or require stores to close on Shabbat. That is a matter for each religious community and each individual conscience.

Religious people should not expect the state to reinforce their specific religious beliefs. But neither should the state expect religious people to ignore their own religious beliefs. When a clergy member serves a dual role, as marriage officiant for both the religious community and the state, these lines get blurred. On occasion, when I have been faced with telling a couple that I cannot perform their wedding, they have reacted with anger. “Who are you to tell us we can’t get married?” Of course, I am not really telling them they can’t get married, I am simply telling them that I personally cannot be the officiant. But since as a rabbi the state has given me the authority to make a marriage civilly valid, it is easy to see why the couple reacts as they do.

In 1971, the U.S. Supreme Court issued the famous Lemon v. Kurtzman decision on Church-State issues. In this ruling, the Court decided that a government action is only constitutional if it meets the following three criteria:
1.) It must have a secular purpose;
2.) It must not have the primary effect of either promoting or inhibiting religion;
3.) It must not foster an “excessive government entanglement” with religion.

Of course, the Supreme Court also considers history in making its decisions. Cases dealing with government chaplaincies have often noted that, despite the prima facie impression that having government-salaried clergy violates the Constitution, the fact is that the very same Congress which passed the Bill of Rights also had a paid chaplain. Clearly, clergy of all denominations have been registering marriages with the government for a long time, and I doubt that any court is going to rule that this practice is suddenly unconstitutional.

Nevertheless, the consensus in American society about what is or is not a proper marriage, who should marry whom, and so on, is quickly unraveling. Rather than having marriage as another battlefront in our society’s culture wars, I think both religion and state would benefit by separating civil and religious marriage. Let every couple that wants government recognition register their partnership at City Hall. And let every clergy person or religious community conduct whatever weddings they consider to be in accordance with their conscience, without government interference or oversight.

As always, I welcome your thoughts!

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