51

First They Came For the Bakers, And Then the Photographers, And Then the Ministers and Next….

Liberal Tolerance 2

Poor silly man, d’you think they‘ll leave you here to learn to fish?

Lady Alice to Sir Thomas More, A Man For All Seasons

Contrary to the popular idea that the success that the gay rights movement has had through the imposition of gay marriage by judicial fiat means the ending of a culture war, this is actually the beginning of a much greater one, as Robert Tracinski, a secularist, at The Federalist is wise enough to understand:

 

On Friday, city officials in Coeur d’Alene, Idaho, informed Donald and Evelyn Knapp, ordained ministers and proprietors of the Hitching Post Wedding Chapel, that they would be required to perform gay weddings or face fines or possibly jail time under the city’s “public accommodations” statute. Their religious views are expected to adjust to the edicts of the state.

So it’s official: a new religious orthodoxy is sweeping across the nation, imposed by government and backed by force. It’s a religious orthodoxy required by secular authorities for a secular purpose, but no matter. Heretics will be found out and forced to recant.

No one ever expects the Secular Inquisition.

Except that we actually did expect it. In fact, it’s inherent in the fundamental basis of the left’s arguments for gay marriage.

I’m speaking here of the argument for gay marriage. It may be hard to remember now, but not very long ago there were compromise proposals for same-sex “civil unions” that were legally equivalent to marriage but under a different name. Gay rights activists consciously rejected these unions in order to specifically demand the use of the term “marriage,” insisting that the state legally recognize and enforce the equality of these marriages with old-fashioned, outmoded heterosexual ones.

Personally, I have no problem with gay people getting hitched, having weddings, and saying that they are “married.” I don’t have any religious objection, on account of not being religious, nor do I think gay marriages, given their very small numbers, will have any particular impact on the state of marriage as an important social institution. (Which, alas, has all sorts of problems of its own.)

But the test of liberty isn’t what happens to people who agree with the intent of a particular edict. The test is what happens to people who disagree.

That brings us to the reason why gay rights advocates insisted on the government granting same-sex unions the title of “marriage.” The theory behind this was that homosexuals suffer from a lack of social acceptance, and gay marriage would put the government’s imprimatur on their status as social equals—along with the promise that this equality is to be backed by government force.

Go here to read the rest.  The battle over gay marriage was never really about gay marriage.  It was about gay activists getting a stamp of approval from government and the ability to use the power of the State to punish those who dissent.  All heresies, secular and religious, begin as movements against orthodoxy and frequently end by attempting to impose their own orthodoxy if they gain the power to do so.  The forces of tolerance in this nation will not rest content until everyone has to bend the knee to their cause or face an ever ratcheting series of punishments.  You may not be interested in this culture war, but rest assured that this culture war is very interested in you, and your children if you have any.

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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.

51 Comments

  1. In England & Wales, the Same Sex Couples (Marriage) Act 2013 does not authorise the marriage of same sex couples according to the rites and ceremonies of the Church of England and any such attempted marriage would be void. This was designed to protect incumbents from a claim of discrimination under the European Convention of Human Rights (ECHR), on the grounds that their position as ministers of the established church means that they are public functionaries.

    In Scotland, the same considerations do not apply. Parliament made clear in the Church of Scotland Act 1921 that ministers of the kirk are not state officials – “This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline in the Church… Recognition by civil authority of the separate and independent government and jurisdiction of this Church in matters spiritual, in whatever manner such recognition be expressed, does not in any way affect the character of this government and jurisdiction as derived from the Divine Head of the Church alone, or give to the civil authority any right of interference with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction.” Any application to the civil courts would be incompetent for want of jurisdiction.

    Other churches (including the Catholic Church) in both England and Wales and Scotland are voluntary associations and they are protected by the provision that only those bodies or celebrants that apply for authorisation to marry same sex couples are able to do so. They cannot be guilty of discrimination for refusing to officiate at a ceremony they have no legal power to perform.

  2. I’d think that nay number of Constitutional forces can be brought to bear to shoot this idiot blob down. It may be that the venue must be open to all, but that non-Christian couples shall provide their own “ministers.”
    .
    Or, if the chapel is recognized as private property, then the owners can do what they like.
    .
    Yes, I know those are now theoretical concepts, but they existed in force once upon a time, and if now isn’t the time to punch back, hard, fast and accurate, then that time will never come.

  3. WK Aitken wrote, “if the chapel is recognized as private property, then the owners can do what they like.”

    A lunch counter is private property, but the owners cannot operate a “whites only” policy. The notion is a very ancient one; the Roman law obliged nautae caupones stabularii, [shipowners, innkeepers and livery stables] to offer their services to all and the notion of “common calling” is derived from that.

    I imagine the authorities picked the Hitching Post Wedding Chapel as a soft target, on the grounds that it is as much as business as the blacksmith’s shop at Gretna Green.

  4. “A lunch counter is private property, but the owners cannot operate a “whites only” policy.” – true, if it’s a licensed business which I suppose it must be. I know of places that are not but are “open” to people who simply want to avail themselves to the locations, but that’s a different story.

  5. Mark my words, the tax exempt status of any church that will not perform, bless, approve homosexual marriages will be gone in a couple of years. That’s the next step for the “intolerant tolerants”.

  6. “I imagine the authorities picked the Hitching Post Wedding Chapel as a soft target, on the grounds that it is as much as business as the blacksmith’s shop at Gretna Green.”
    You are precisely correct MPS. These people want to establish a precedent here that a ‘religious business’ is a business and that the anti-discrimination laws apply just as in any other business. Once done they will move on to sue a traditional church, and the ‘religious business’ will be transformed into a ‘church’ in their brief.

    However, one of the hallmarks of law regarding religion in the U.S. is that the government is deemed to be not competent in judging the relative merits of one faith against another. Hence, the legal standing of the Knapps is no different than that of any other minister in any other church. They as clergy cannot be forced by the government to do anything their beliefs proscribe. The city has an uphill battle ahead of them. I hope the Knapps sue the city for legal fees and court costs.

  7. TomD

    Of course, but if one wanted to pick a test case, it would be easier to use the Knapps than, say, an Haredi Shul, which has more exacting requirements, shall we say, of whom they will or will not marry.

    Perhaps, there is something to be said for the French rule of mandatory civil marriage (le mariage civil obligatoire) Only an officer of civil status (the mayor or his adjunct) can perform a marriage and it is a crime – an attack on the civil status of persons (un atteinte à l’état civil des personnes) for a minister of religion habitually to conduct marriages for people not legally married (Code Pénal Art 433-21) “Habitually” is intended to make allowance for death-bed marriages and “marriages of conscience.” There can be no question of compeling a minister of religion to marry a same-sex couple, for the simple reason that they cannot marry anyone.
    Catholic wedding invitations typically invite one to “assist” at « Le mariage » (civil) and « La bénédiction nuptiale » (the religious ceremony) or only the latter.

  8. Evil actions / sexual perversions will not have the last word! Disordered reality will be seen in the Light for what it is.
    Jesus, I trust in you.

  9. “Of course, but if one wanted to pick a test case, it would be easier to use the Knapps than, say, an Haredi Shul, which has more exacting requirements, shall we say, of whom they will or will not marry.”
    But that’s just my point. The perception of ‘ease’ in the minds of the city is false, because U.S. law cannot make any distinction. How the Knapps became ‘ordained’ or even what precisely constitutes ordination, and who they allow or not allow to marry under their religious views is not material. At worst the city could prevail regarding their chapel’s fees and internal physical arrangements by arguing these are more ‘businesslike’ than a church, but considering that other churches often have fees and even gift shops (all major cathedrals do) the Knapps could easily circumvent any challenge by rearranging the furniture to match other churches’ arrangements, if necessary. The only way the city can win is if the Knapps’ attorneys are incompetent, or if the U.S. judiciary has been totally corrupted.

  10. Alliance Defending Freedom (ADF) is involved in the Knapp’s defense, as I understand. They’re frequently on the front lines against militant secularist forces in the U.S. and generally seem to be competent.
    .
    As for the French vs U.S. methods related to marriage, there’s two questions at play here. One is philosophical: from where do rights originate? The second is practical: how well is such philosophy understood and expressed in each country?
    .
    Generally speaking, the U.S. tradition and original founding has declared rights to be pre-existing, endowed by the Creator…marriage, in this regard, was viewed as an institution which the government did not create but acknowledged. I grant historical caveats and the like, but as I said: “generally speaking”…
    .
    I’m not as intimately familiar with how French philosophies of rights were originally articulated, but from Michael’s description of civil marriage, the government seems to be the ultimate grantor (if not absolutely, at least in practice) of rights at least in respect to marriage. It’s been my understanding that while French political philosophy mirrored / shared much from the American founding, there was a more secular interpretation of natural law and theories of natural rights.
    .
    As to how well this philosophy is put into practice in France, I cannot say. I can say that the U.S. philosophy has become disconnected if not utterly forgotten from modern practice, in light of these types of lawsuits. This case is precisely a manifestation of the delta that has been created between practice and philosophy.
    .
    I submit this: if we, as Catholics, are one of the few (if not only) Christian traditions that hold that marriage is a sacrament, and yet we will submit to the words “By the power vested in me by the [insert name of governmental authority], I pronounce you [insert politically correct term for two (or more) spouses]”…then whom do we call master? God or the world? Maybe I’m over-analyzing or possibly over-simplifying, but in light of this past weekend’s Gospel reading about rendering unto Caesar what is Caesar’s, I think it’s fair to ask in the intersection of Catholicism and political philosophy: does the sacrament of marriage belong to God or to Caesar?
    .
    In that view, and in my humble opinion, I do not think that the French model offers a positive alternative to the U.S., even in light of the dissonance between U.S. philosophy vs practice with respect to rights and marriage.

  11. Let me add that what Michael described as a civil marriage followed by a religious marriage seems to be somewhat analogous to the practice of marriage licenses in the U.S. While the requirements are different for different states and so forth, I’m generally under the impression that the license does not, in fact, confer the marital status until the religious ceremony occurs.
    .
    Now, perhaps a lawyer from the U.S. perspective might offer a correction if I’ve mucked this understanding up.

  12. No religious ceremony is needed. For example in Illinois couples can be married by judges or by the Circuit Clerk of Cook County. I can think of no place less romantic than a courthouse for the locus where a marriage is performed!

  13. When Catholic clergy become persecuted in this country for refusing to perform homosexual marriages, will Pope Francis call them unmercifully traditionalist or will he have mercy on them?

  14. PS, I like T Shaw’s comment about Muslims. Those fanatics for whose beliefs the homosexual-supporting left makes every excuse to give deference would behead both homosexual and his leftist supporter alike. On the other hand, because I insist on leaving homosexuals alone so long as they leave me alone, I am accused of the most heinous crime of all: intolerance. Darn straight I am intolerant – of liberalism, progressivism, modernism, hedonism and all the other ISM’s – the I, Self and Me’s.

  15. Thanks Don, and agreed about the “marriage certificate” ceremony. My question is if one is having a religious ceremony, then am I correct in saying that the marriage license isn’t equated to the marriage certificate in a civil marriage?
    .
    Let me put it this way… When I was in graduate school, a friend of a friend was married in front of a historic train station by the mayor…not something that I found appealing. I presume that this is entirely consistent with what Michael describes in France.
    .
    However, I know from my own wedding, we obtained our marriage license a few days prior to the ceremony. And I know that the priest, my wife, our witnesses and I signed the marriage certificate, right after the wedding ceremony. So, I guess in that sense, the priest was acting as an official on behalf of the state. However, this order of operations (as well as the officiant) appears to be illegal in France.
    .
    Further, the license had nothing to do with the official date of our marriage. This, to my point, would make the French civil marriage not analogous to a marriage license in the U.S. in the context of a religious ceremony. Also, as an aside: if a Catholic couple in France obtain the civil marriage first, are they considered married in the eyes of the priest and the ceremony is therefore nothing other than a blessing? I would assume they wouldn’t be married twice, as it were.
    .
    Back to the discussion at hand: Idaho was one of the states which recently had their laws on marriage overturned by judicial fiat, by way of abstention. I am sure that a homosexual couple could pick from any of a number of venues, including some professing to be Christian, which could have performed the ceremony. I am in complete agreement with Michael and Tom that this was a trial balloon.
    .
    If the couple really was there only because they loved the venue, then why are there no legal precedents of, say, a good and decent Southern Baptist couple suing for permission to have a Catholic priest marry them, despite not being members of the parish? I mean, I’m sure there are some Southern Baptists who would appreciate an old fashioned pipe organ, stained glass, and the occasional phrase in Latin as the perfect backdrop for their most special of days. And the only reason the priest would deny it, the tyrants of tolerance would tell us, is due to their religious bigotry. There’s surely no way the priest could oppose on sincerely-held religious convictions regarding sacramental theology.
    .
    While some would point to the fact that the Knapps made their ministry their business as well, the Hobby Lobby decision by the same black-robed oligarchy should provide some precedent in their favor. And the Knapps aren’t what I’d consider unique…I know that, according to my wife (who used to help with wedding planning), some churches of various denominations do charge fees of some sort for weddings conducted in their facilities.
    .
    But, yes, the next step will be a similar couple demanding a Catholic priest marry them. The only variable that I see is how long it is until that happens…and I suspect that the Knapp case will be the predictor of whether it happens sooner or later.

  16. “My question is if one is having a religious ceremony, then am I correct in saying that the marriage license isn’t equated to the marriage certificate in a civil marriage?”

    In the US marriage is a two step procedure. First the marriage license, then having someone authorized to do so perform the marriage. If the marriage is not performed, the marriage license does not constitute a legal marriage. The fact that in the States a multitude of people can perform a marriage would weaken a law suit to compel someone to perform a marriage. When someone provides a service, the law in the US has traditionally not required someone to do so to all and any comers where there is no shortage of people providing the service. For example as a private attorney I can choose which cases I wish to take. Anti-discrimination laws have weakened this traditional privilege of service providers, but if no reason is given for an unwillingness to provide the service, it would not be an easy case where a discriminatory reason would have to be proven. Of course, the first amendment protection of churches probably would render such a suit against a priest, minister, rabbi, etc, unconstitutional.
    .

  17. Meanwhile, Abp. Charles Chaput has suggested that maybe the time has come for priests to consider “principled resistance” to the imposition of same-sex civil marriage by, basically, getting out of the civil marriage business altogether:

    http://www.patheos.com/blogs/deaconsbench/2014/10/chaput-clergy-might-stop-signing-marriage-licenses-as-principled-resistance/

    “In a lecture delivered Monday evening in Manhattan, Chaput also suggested that in the wake of the rapid series of court decisions legalizing same-sex marriage in more than 30 states, Catholic priests might consider opting out of certifying civil marriages as a sign of “principled resistance.”…

    “….By long-standing U.S. practice, a Catholic priest, like any licensed clergy, acts as an agent of the state when signing a couple’s marriage certificate.

    “It’s hard to see how a priest or bishop could, in good conscience, sign a marriage certificate that merely identifies ‘Spouse A’ and ‘Spouse B,’ ” Chaput said in his prepared remarks.

    “Refusing to conduct civil marriages now, as a matter of principled resistance, has vastly more witness value than being kicked out of the marriage business later by the government, which is a likely bet,” he said.

    “Chaput said he wasn’t necessarily endorsing that move yet, but “in the spirit of candor encouraged by Pope Francis,” he said the American bishops should “discuss and consider it as a real course of action.”

    If that were to happen, then American Catholics would be basically in the same position as Catholics in foreign countries that only recognize civil marriage — they would have to have two weddings, one civil and one religious, if they wanted their union to be both legally and sacramentally valid. And though I understand what Abp. Chaput is getting at here, some of what he said is problematic:

    — If Abp. Chaput really believes that it is morally wrong or potentially scandalous for a priest to cooperate in or endorse a system of civil marriage that is no longer in conformity with natural law, then why is he “not necessarily endorsing that move (refusal to sign civil marriage licenses) yet”? Either it’s wrong or it’s not; if it’s wrong, then the practice should stop now.

    — If a priest or bishop cannot “in good conscience, sign a marriage certificate that merely identifies ‘Spouse A’ and ‘Spouse B,’” what about the couple? If they fully believe in what the Church teaches about marriage, how can they, in good conscience, sign THEIR names to such a certificate? If they cannot, does this mean that believing Catholic couples can no longer enter civil marriages in any jurisdiction that allows same-sex civil marriage? This would put them in the rather awkward position of being sacramentally married in the sight of God but merely cohabiting in the eyes of the State.

  18. John by any other name

    Mandatory civil marriage was introduced in France on 9 November 1791, after 10 million tenant farmers (vassals) had been turned into heritable proprietors.

    The Civil Code contains no definition of marriage, but Article 312 “The child conceived or born in marriage has the husband for father” has been treated as a functional definition by jurists, including the three most authoritative commentators on the Civil Code, Demolombe (1804–1887), Guillouard (1845-1925) and Gaudemet (1908-2001). This led one of the greatest modern commentators on the Civil Code (Carbonnier) to remark that “The heart of marriage is not the couple, but the presumption of paternity.” This is rooted in Roman law, with Paulus declaring, ” is est pater quem nuptiae demonstrant. ” [marriage points out the father] (Dig. 2, 4, 5; 1)

    That is why the Pécresse Commission that reported to the National Assembly in 2006 insisted that “Mandatory civil marriage makes the institution a pillar of the secular Republic, standing clear of the religious sacrament.” [le mariage civil obligatoire, qui fait de cette institution un pilier de la République laïque au-delà du sacrement religieux]

    In other words, marriage is viewed primarily as a public institution that determines civil status. If a couple wish to have their union blessed, that is a private matter.

  19. Donald R McClarey wrote, “as a private attorney I can choose which cases I wish to take”

    In Scotland, a solicitor may choose his clients, but an advocate may not. The acts 1537 c 61 and 1587 c 91 oblige an advocate to plead causes whether he chooses or not, if in the one case a client and in the other the court pleases to insist on it. This is sometimes referredd to as the “cab rank principle.”

  20. Luke 17:34-37
    .
    I tell you, in that night there will be two men in one bed; one will be taken and the other left. There will be two women grinding together; one will be taken and the other left.” And they said to him, “Where, Lord?” He said to them, “Where the body is, there the eagles will be gathered together.”
    .
    Fundamentalists and Dispensationalists of the CI Scofield variety suppose this refers to the Rapture. They are mistaken. The person who is taken is the one dragged away into prison and torture by those whose banner is SPQR (Senatus Populusque Romae) above which rests the Eagle, and the person who is left behind is the one not taken into prison and torture.
    .
    What is the American national symbol if not the Eagle? As liberal progressivism has assumed ascendency and we have become a national democracy instead of a constitutional republic, we should well remember what our Blessed Lord said:
    .
    “Where the body is, there the eagles will be gathered together.”

  21. Elaine Krewer.

    Great link….thanks. Abp. Chaput is making excellent sense in principled resistance. The timing is right however resistance to principled resistance will be evident, but so what! Jesus did not ask the money changers be fair in their exchange of coin for sheckel’s…He turned their tables over and took a whip to drive them out. Chaput’s idea is less violent and yet is bold enough to send the right message.

  22. No more than radios and cassette disc players make a car, do flowers, cakes, pictures, and wedding receptions a “marriage” make. These things are peripheral accessories.
    .
    The Sacrament of Holy Matrimony may be performed by a priest in the rectory, with two attendants as witnesses. It may be even that only one attendant is required. The good will and informed consent of the couple is the only necessary requirement for the Sacrament. The cost is nothing.
    .
    Proprietors of bakeries, photographies, florists, and halls are not required to allow just anybody, but do have some control over whom they serve as their insurance may not allow persons with no shoes, shirts or ebola virus to enter their premises, because in the first place, the proprietors are the final arbiters of whom is permitted or prohibited into their personal space, allowed access to their face.
    .
    When the proprietor denies access to his/her face, a contract cannot be signed.
    .
    When the same sex couple is admitted into court, the first person they will meet is the judge who has the authorization of the state “by the power vested in…” him/her, to perform the fulfillment of the law. Therefore, the same sex couple is not denied or being denied any civil right required by the law and have no plaint against any other person/citizen.
    .
    If, in the absence of good will, the same sex couple demands of another citizen certain amenities for himself, he is not acting in good will and his demands may be denied by the other person and not supported by the court since the same sex couple is not acting in good will towards the state. (and the court). (and the citizen).
    .
    “GET OUTTA MY FACE” is more than slang. “GET OUT OF MY FACE” is the right of every sovereign person who happens to also be a citizen.
    (If the same sex couple tries to contract any amenities by lying or cheating or swindle; subterfuge, the contract is not valid and may not and will not be supported in a court of law.)

  23. Michael Paterson-Seymour:
    “Any application to the civil courts would be incompetent for want of jurisdiction.
    Other churches (including the Catholic Church) in both England and Wales and Scotland are voluntary associations and they are protected by the provision that only those bodies or celebrants that apply for authorisation to marry same sex couples are able to do so. They cannot be guilty of discrimination for refusing to officiate at a ceremony they have no legal power to perform.”
    .
    The absolute mind of John Henry Cardinal Newman and Thomas Jefferson.
    .
    John Henry Cardinal Newman said:
    “It in no way depends upon the caprice of the Pope, or upon his good pleasure, to make such and such a doctrine, the object of a dogmatic definition. He is tied up and limited to the divine revelation, and to the truths which that revelation contains. He is tied up and limited by the Creeds, already in existence, and by the preceding definitions of the Church. He is tied up and limited by the divine law, and by the constitution of the Church. Lastly, he is tied up and limited by that doctrine, divinely revealed, which affirms that alongside religious society there is civil society, that alongside the Ecclesiastical Hierarchy there is the power of temporal Magistrates, invested in their own domain with a full sovereignty, and to whom we owe in conscience obedience and respect in all things morally permitted, and belonging to the domain of civil society.”

    .
    Thomas Jefferson said: Jan. 1. 1802.
    Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

  24. Michael Paterson-Seymour:
    WK Aitken wrote, “if the chapel is recognized as private property, then the owners can do what they like.”
    A lunch counter is private property, but the owners cannot operate a “whites only” policy. The notion is a very ancient one; the Roman law obliged nautae caupones stabularii, [shipowners, innkeepers and livery stables] to offer their services to all and the notion of “common calling” is derived from that.
    .
    Being “black” is an act of God, as is sexual orientation. Sodomy is an act of man against God. Inflicting immorality on another person by scandal and calling evil as good is a lie and perjury in a court of law.

  25. John by any other name: “I submit this: if we, as Catholics, are one of the few (if not only) Christian traditions that hold that marriage is a sacrament, and yet we will submit to the words “By the power vested in me by the [insert name of governmental authority], I pronounce you [insert politically correct term for two (or more) spouses]“…then whom do we call master? God or the world? Maybe I’m over-analyzing or possibly over-simplifying, but in light of this past weekend’s Gospel reading about rendering unto Caesar what is Caesar’s, I think it’s fair to ask in the intersection of Catholicism and political philosophy: does the sacrament of marriage belong to God or to Caesar?”
    .
    “Render unto to Caesar what is Caesar’s and unto God what is God’s.” Caesar belongs to God. And Caesar must exist in the Truth, the whole Truth and nothing but the Truth. Therefore, anyone entering into a covenant with God must be in the Holy Sacrament of Matrimony. God is living in every true marriage as a covenant. Anyone entering into a contract of legal marriage must also be living in the truth. Marriage consists in informed consent and the marital act. If either of these components or requirements is missing the marriage is invalid no matter when, where or whom does officiate.

  26. Elaine Krewer wrote, “This would put them in the rather awkward position of being sacramentally married in the sight of God but merely cohabiting in the eyes of the State.”

    It would also have a profound effect on the legal rights of their children. The father would have no parental rights or responsibilities; the mother would be sole legal guardian. It coud also have repercussions on succession; a great deal of land is held under special destinations – “to x and the heirs-male of his body lawfully procreate, whom failing &c” Here the children would be excluded from the succession, in favour, it may well be, of a distant cousin. Also, such settlements usually contain a power to grant a liferent to the surviving spouse, but not to a mere cohabitee, so the heir could turn out both the surviving spouse and the children.

    I am sure it could be argued that the couple’s signing the certificate would be a permissible remote material cooperation, which is permitted for grave reasons. That does not mean that a refusla by the clergy to participate would not be an excellent form of protest. It would be, in fact, the French system, with two ceremonies, a system that exists in most of Europe.

  27. “This would put them in the rather awkward position of being sacramentally married in the sight of God but merely cohabiting in the eyes of the State.”
    .
    An interesting contra-position of the current norm, and, of course, subject to common-law statutes after a time.
    .
    Nonetheless, it would be an interesting “principled resistance” on the part of observant Catholic laity to do so.

  28. Elaine Krewer: “— If a priest or bishop cannot “in good conscience, sign a marriage certificate that merely identifies ‘Spouse A’ and ‘Spouse B,’” what about the couple? If they fully believe in what the Church teaches about marriage, how can they, in good conscience, sign THEIR names to such a certificate? If they cannot, does this mean that believing Catholic couples can no longer enter civil marriages in any jurisdiction that allows same-sex civil marriage? This would put them in the rather awkward position of being sacramentally married in the sight of God but merely cohabiting in the eyes of the State.”
    .
    A state’s marriage license is an instrument, a vital statistic. The priest acts as an agent of the state in participating in the regulation of the state, but so is the priest’s citizenship. The state has legalized human sacrifice and decriminalized sodomy and is working on cloning a slave race of human beings. The state does not deserve the recognition of real persons. The priest signs the marriage certificate for the protection of the decent person and the priest’s citizenship in performing a sacramental marriage may be viewed as an act against such a criminal or plain ignorant state, as well as an act of religion and conscience.
    .
    Your perception in this matter, Elaine Krewer, is great.

  29. In old times, in Europe, the only records or vital statistics belonged to the church, who kept records of births, deaths, and marriage.
    .
    Vital statistics kept by the state do not convey ownership of the person to the state. But it does convey some power to the state over its constituents, that may be used to the benefit of the citizen but never to the state against the citizen. FWIW

  30. WK Aitken wrote, “subject to common-law statutes after a time.”
    Well, no. According to Lord Glenlee, “marriage is founded on consent, and there may be single facts so strong as to supersede everything else. But a man’s allowing a woman to take the station, and be called his wife, is a constant and continued declaration of consent, and after this has gone on for a considerable time is sufficient proof that they are married” [Elder v McLean 1829].
    But, in the case supposed, there would be a clearly expressed intention not to enter into a legal marriage. As Lord Curriehill explained, “A woman cannot grow insensibly from a concubine into a married wife by any natural process of accretion or of accession. Such a metamorphosis cannot be legally effected by such means. Marriage is a consensual contract; and although there are different ways of proving that such a contract is entered into, yet the thing to be proved, whatever be the nature of the evidence, is that the parties entered into a mutual contract accepting of each other as spouses.” [Breadalbane Case, 1867, L.R., 1 Sc. App. 182]

  31. MP-S:
    “According to Lord Glenlee, “marriage is founded on consent, and there may be single facts so strong as to supersede everything else. But a man’s allowing a woman to take the station, and be called his wife, is a constant and continued declaration of consent, and after this has gone on for a considerable time is sufficient proof that they are married”
    .
    May hap’s. In the Great State of Indiana where I live, the “considerable time” is seven years, after which a couple is considered “legally married” in every sense that would be if a civil function had been performed.
    .
    The simple declaration during Marriage Mass should be the only requirement, but then lots of things “should be” that aren’t . . .

  32. Other thoughts: The granting of or the refusal of a sovereign person to countenance another individual in his personal space or by proxy is a right to peaceable assembly in the First Amendment. If the Knapps refused, as the new reported, “politely declined”, to countenance the gay couple, to refuse to allow the gay couple into their personal space, into their face, there is no contract, no sexual discrimination, no violation of the gay couple’s right to public accommodation. To demonstrate their good will, the Knapps could refer the gay couple to other accommodations (short of hell).

    Michael Paterson-Seymour: ““ Donald R McClarey wrote, “as a private attorney I can choose which cases I wish to take”
    In Scotland, a solicitor may choose his clients, but an advocate may not. The acts 1537 c 61 and 1587 c 91 oblige an advocate to plead causes whether he chooses or not, if in the one case a client and in the other the court pleases to insist on it. This is sometimes referred to as the “cab rank principle.”
    .
    If an attorney, as is Donald McClarey, is order to defend a criminal, it is because the defendant is a criminal. In civil court a person may act “pro se” for him/herself, to speak for himself. And it seems that, like jury duty, the attorney may be excused by the court for life situations, such as sickness or dependent’s sickness. A revulsion of sodomy may excuse an attorney from defending the sodomist’s claim as being a victim. A revulsion of sodomy may excuse the Knapps from supporting the sodomists’ demands to a countenanced contract.

  33. The notion is a very ancient one

    The ‘notion’ may be an ancient one, but the practice in this country does not antedate 1946. None of these enterprises are monopolistic common carriers.

  34. My point in referencing whether marriage belongs to Caesar or to God was to ask whether it’s fundamentally a civil institution or something that predates society.
    .
    If we start from a profession of faith that God, whether through theistic evolution, intelligent design, or young-earth creationism, created everything…we must assume that marriage predates society and therefore civil institutions. It is not incompatible that regulations, practices and other such things surrounding marriage developed or were grafted on to the fundamental notion presented in Genesis 1:

    27 So God made man in his own image, made him in the image of God. Man and woman both, he created them. 28 And God pronounced his blessing on them, Increase and multiply and fill the earth, and make it yours; take command of the fishes in the sea, and all that flies through the air, and all the living things that move on the earth.

    Now, while the “unitive” aspect of marriage wasn’t fully articulated until relatively recently, I claim it’s self-evident that without the “procreative” aspect of marriage, none of us would be here to discuss the nuances of legal tradition surrounding matrimony throughout the ages. This is why the family is regarded as the fundamental unit of society. Society came after the family, and, as such serves the family…not the other way around. It is only recently that the widespread availability of contraception has contributed to the transformation of marriage to only have a value for the “unitive” in the eyes of much of Western society, something that seems at least implicit in Paul VI’s predictions in Humanae vitae. It’s only this transformation which makes the argument “love is love” even viable for marriage revisionists.
    .
    The only alternative to this that I can see is that somehow procreation was only what God intended in Genesis and was separate from marriage. Marriage is therefore merely an institution of man, and was, as modernists would assert, a “social construct”. But I’m not sure that squares with sources that have studied this, from an anthropological perspective I would tend to trust.

    We may say that the positive arguments in favour of the theory of primitive promiscuity seem insufficient to give it any degree of probability, while the biological, economic, psychological, and historical arguments brought against it by many recent writers, e.g. Westermarck (op. cit., iv-vi) seem to render it unworthy of serious consideration. The attitude of contemporary scholars is thus described by Howard: “The researches of several recent writers, notably those of Starcke and Westermarck, confirming in part and further developing the earlier conclusions of Darwin and Spencer, have established a probability that marriage or pairing between one man and one woman, though the union be often transitory and the rule frequently violated, is the typical form of sexual union from the infancy of the human race” (History of Matrimonial Institutions, I, pp. 90, 91).
    – “History of Marriage”, Catholic Encyclopedia
    http://www.newadvent.org/cathen/09693a.htm

    .
    Please do not misunderstand me that I’m claiming there aren’t legitimate roles of civic authorities. I understand that the need to establish paternity for the sake of inheritance has a role in the civic order. But it’s my understanding that these expressions are only legitimate when they are acting in accordance with or subordinate to natural law…which ultimately was authored by God. Or to put this another way: Is murder wrong because the government said it was or because God said it was and the government followed suit?

  35. “I am sure it could be argued that the couple’s signing the certificate would be a permissible remote material cooperation, which is permitted for grave reasons.”

    Good point. The officiant’s abstention/withdrawal from participating in the civil marriage ritual is, as I see it, mainly for his own protection — so that he cannot be compelled by the state to not “discriminate” against same-sex couples. An opposite-sex couple that has every intention of entering a sacramental, valid marriage, faithful and open to life, however, wouldn’t be “protecting” themselves from anything by forgoing civil marriage; if anything, they would be doing exactly the opposite — depriving themselves, and their future children, of important legal rights and protections.

  36. WK Aitken wrote, “The simple declaration during Marriage Mass should be the only requirement,..”
    Usually, of course, it is; but not always. As Lord Dunpark said, “Scots civil law has always applied the consensual principle to the contract of marriage so that, if it be proved that, notwithstanding the trappings of a formal marriage ceremony, the parties thereto did not exchange their consent for the purpose of obtaining married status, the ceremony must be denied the legal effect which it was designed to produce.” [Akram v Akram (1979 SLT (Notes) 87)]
    Likewise, in Hakeem v Hussein (2003 SLT 515) Lord Penrose, giving the judgment of the Inner House (Court of Appeal) said “formal compliance with the procedural requirements of regular marriage is not conclusive of the contraction of a valid marriage”

    The rule is thus .stated by Lord O’Hagan : “In all inquiries of this sort, I apprehend the true rule is not to regard singly and apart the one transaction on which reliance is placed as constituting the marriage. It is necessary to exercise “a large discourse of reason looking both before and after,” and from all the antecedents and all the consequents to ascertain the true mind and purpose of the parties whose intention determines the character of their act.” Robertson v Stewart 1875 2 RHL 80 at p 108

    Marriages celebrated in facie ecclesiæ have frequently been avoided on the ground of force, fraud or error and these are only so many ways of proving want of mutual consent.

  37. John by any other name & Elaine Krewer

    Lord Stowell described the two aspects of marriage, civil and religious, very well, when he said, “Marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent not the child of civil society. In civil society, it becomes a civil contract regulated and prescribed by law and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded; it then becomes a religious, as well a natural and civil, contract; for it is a great mistake to suppose that because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God.”

  38. The state does not own the proprietor of the public accommodations that the state licenses and regulates. Therefore the state cannot regulate whom the proprietor allows into his personal space and allows to be countenanced by himself. As I wrote earlier, It is only the individual citizen who may decide who enters into his personal space even after the other has entered into his establishment, that establishment, regulated and licensed. As I wrote earlier, if a customer is not allowed into the personal space of the citizen proprietor, if the customer is prohibited from being countenanced by the proprietor of a public accommodation, a contract cannot be made and will not be made by fiat of the state.
    .
    In the matter of the same sex marriage, if the state decrees that it must be done then the state can and may perform the ss marriage.
    .
    Michael Paterson-Seymour: “Heaven itself is made a party to the contract and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God.”
    .
    Only if or when the individuals, the couple, consent to make a covenant with God is marriage a Sacrament. When the couple admits to no belief in God, the state witnesses to a contract between two consenting adults. Atheism explains this better than I might. However, here we have a situation where a ss couple might not be able to consent to a civil, secular contract because of the inability of the ss couple to copulate, to perform the marital act, a necessary condition of marriage.

  39. Anzlyne: “”“Being “black” is an act of God, as is sexual orientation.” ? ? ?”
    .
    Homosexuality was once diagnosed as “arrested development” by the American Psychiatric
    Assn. that is, before the North American Man Boy Love Assn forced the APA to change their diagnosis to “normal”. NAMBLA practises medicine without a license.
    .
    Being born African American or with arrested development is an act of “their Creator”. Acting out homosexuality in homosexual behavior and blaming God for having created a person with this condition is sodomy and blasphemy, both sinful acts of the free will that require consent.

  40. Mary De Voe wrote, “The state does not own the proprietor of the public accommodations that the state licenses and regulates….”

    True, but as Rousseau says, “Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign [the People] is sole judge of what is important,” for “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.”

    His conclusion is well known, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; [« ce qui ne signifie autre chose sinon qu’on le forcera d’être libre »] for this is the condition which, by giving each citizen to his country, secures him against all personal dependence.”

  41. Rousseau:
    “but it must also be granted that the Sovereign [the People] is sole judge of what is important,” for “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.”
    .
    So when the collective People is the sole judge of what is important, how is that not also tyrannical when it imposes that judgment upon those who disagree?
    .
    I originally started responding to this equating Sovereign as “State” but then noticed the inclusion of “[the People]” in your quote…but I think the substance of my objection still stands.
    .
    I think that when the People determine, in a democratic (here I mean the mob-rule aspect of the “tyranny of the majority”) sense, that a particular course is in order and they make no appeal to any moral foundation (either through God’s law or at least through natural law), they do so arbitrarily and, in my view, illegitimately.
    .
    Put another way: murder is wrong not because the People deemed its prohibition important, but because, either through an appeal to God’s law or through an intellectual understanding of natural law, it’s wrong. The People are just restating a truth that precedes them and, thankfully, agreeing with it.
    .
    However, when the People determine that it is important that anyone of any biological gender can choose to “identify” as whatever they desire, so as to use the bathroom facilities of the opposite biological gender…this isn’t consonant with at least natural law as it gives license for sexual predators to abuse the system…forget the plumbing questions, whether biological or facility. Further, when the representatives of the People, in the form of the city government of Houston, not only reject a valid voter petition on corrupt charges but also subpoena speeches and personal communications from pastors unrelated to the lawsuit brought against the city by the organizers of the voter petition, this is precisely a tyrannical situation…as it derives from no legitimate authority other than being created out of the whim of the People.
    .
    Rousseau appears to suggest that the People is answerable to no one, as he labeled them “sole”. That’s clearly wrong, if I am understanding him. Rousseau correctly identifies the consequences of relativism with respect to laws, but his solution is just that the will of the People stands supreme…which is also tyranny absent any legitimate appeal to, at the very least, natural law. His solution invariably shifts the chaos of relativism from the legal realm to the moral realm; he hasn’t solved it.
    .
    How would Rousseau handle the hypothetical situation where the People are following a societal / legal route that imposes something on all, and an Individual stands up, makes a coherent and rational appeal to natural law to argue against said course? I would interpret that Rousseau would admit to no such appeal could exist in the first place and that the will of the People would overrule the protest of the Individual.

  42. Getting into a person’s face without his admission is assault. Demanding a person’s countenance without his consent is slavery, piracy… tyranny. Hauling a person into court for denying his countenance and his personal space to another is legal assault…legal harassment.
    .
    The gay couple pursuing the Knapps in a court of law are inflicting legal assault and battery; refusing to acknowledge the Knapp’s freedom to come and go in good will; the Knapp’s civil right to assemble peaceably and be secure in their Blessings of Liberty.
    .
    We know that legal assault and battery in a frivolous lawsuit and being charged legal fees and the cost of defending themselves in a court of law and not being acknowledged as having any civil freedom, and being hauled into court to give a good account of themselves and their citizenship, the Knapps are being victimized.

  43. John by another name: “How would Rousseau handle the hypothetical situation where the People are following a societal / legal route that imposes something on all, and an Individual stands up, makes a coherent and rational appeal to natural law to argue against said course? I would interpret that Rousseau would admit to no such appeal could exist in the first place and that the will of the People would overrule the protest of the Individual.”
    .
    I am oversimplifying your great scholarship and I may even be mistaken. However, with atheism, the individual human person is overruled by the mob mentality. Without God and God’s natural law, the people become a mob of unruled mercenaries.
    .
    Michael Paterson-Seymour: “” This means nothing less than that he will be forced to be free; “”…in another person’s choice of freedom, not his own individual choice of freedom. We have here the right to choose, freedom of abortion or else…,
    .
    People of Faith come together to constitute our nation through good will and the Holy Spirit of Peace. The people have good will towards one another, our neighbors. Atheism inspires anarchy: “You will be free according to how I tell you to be free.” The transparent Great Liar. Only God can make sense of freedom.

  44. John by any other name asked, “How would Rousseau handle the hypothetical situation where the People are following a societal / legal route that imposes something on all, and an Individual stands up, makes a coherent and rational appeal to natural law to argue against said course?”

    Rousseau has already answered it: there is no common superior to decide between the individual and the public, no one who can arbitrate the question.

    Of course, Rousseau is thinking of democracy, as practiced in the cantons of his native Switzerland, “The idea was that the grown men met in the market-place, like the peasants of Glarus under their trees, to manage their affairs, making and unmaking officials, conferring and revoking powers. They were equal, because every man had exactly the same right to defend his interest by the guarantee of his vote. The welfare of all was safe in the hands of all, for they had not the separate interests that are bred by the egotism of wealth, nor the exclusive views that come from a distorted education. All being equal in power and similar in purpose, there can be no just cause why some should move apart and break into minorities.”

    He spoke of representative government with biting contempt. “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall. When it is necessary to march out to war, they pay troops and stay at home: when it is necessary to meet in council, they name deputies and stay at home. By reason of idleness and money, they end by having soldiers to enslave their country and representatives to sell it.”

  45. Amendment 9 – Construction of Constitution. Ratified 12/15/1791.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  46. Michael Paterson-Seymour: “John by any other name asked, “How would Rousseau handle the hypothetical situation where the People are following a societal / legal route that imposes something on all, and an Individual stands up, makes a coherent and rational appeal to natural law to argue against said course?””
    .
    Conscientious objectors are citizens who respect their neighbors, and who object to their neighbors’ views, and who cannot participate in or support human sacrifice, sodomy, slavery and human rights violations, in Justice. Conscientious objectors are recognized and respected by the government, and are given the freedom to conscientiously object.
    .
    Only those people who are trusted are allowed admission to the personal space and countenance of each and every citizen. The government regulates and licenses public accommodation to secure freedom and safety for consumers. The Knapps have refused to countenance ss couples, thereby, the government regulation and licensing are not put into effect until such time as the proprietors open themselves up to any potential customer. Otherwise, the ss couple are invaders into the personal space and countenance of the proprietors of any business.
    .
    Sovereign personhood endowed by “their Creator” at the onset of existence guarantees conscientious objection through the human beings’ ability to reason. To reason that an action may be detrimental to one’s eternal life and decline participation is to exercise Freedom of Religion and conscientious objection. People who choose to have no religion may not infringe on the freedom of believers.

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