An Issue on the Marriage Question

In 1992, Justice Anthony Kennedy, who carried a key vote on the recent Supreme Court decision on same sex marriage, gave his definition of liberty: “The right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” There is nothing wrong with what Kennedy said.

There is, however, a great deal wrong with what Kennedy did not say. Taken by itself, Kennedy’s definition is license, not liberty. It acknowledges no limitation on “one’s own concept of existence.”

Limitation, however, is a key element of liberty, if only to prevent the idea that “might makes right” from prevailing. Generally, the limitation imposed on liberty is the obligation not to harm one’s self, other individuals or groups, or the common good as a whole by the exercise of one’s rights.

For example, if my “concept of existence” includes the obligation to carry out daily ritual human sacrifice to ensure that the sun comes up and the harvest is adequate, another’s rights to life and liberty preclude my acting in a manner consistent with that particular “concept of existence.” The obligation on me not to harm others also permits others to defend themselves against the harm I offer.

My personal sovereignty and human dignity — recognition and protection of my natural, human rights — is thereby necessarily limited in its exercise. I may possess my natural rights absolutely, but only exercise them in limited fashion, with that exercise generally determined by current conditions, common sense, the needs of other individuals and groups, and the common good as a whole, as well as the obligation not to harm others. Consequently, assuming that there is a right to same sex marriage, it cannot include a right to violate the rights of others, or punish them for their opinions, right or wrong.

To illustrate, let’s consider two issues that have been in the news, baking cakes for same sex wedding receptions, and forcing ministers to perform same sex marriage ceremonies. First, does a right to marry someone of the same sex permit you to force a baker to make you a cake to celebrate the event?

Given that the baker is offering a product or service to the public, and he or she may not legally discriminate among members of the public as long as they otherwise meet the requirements of a customer, the answer is probably “yes.”

Why you might feel it necessary to humiliate others to celebrate “the happiest day of your life” might raise questions about your motives and your sanity, but, yes, you can probably legally force someone to bake you a cake. Whether you can justly demand damages all out of proportion for the alleged harm you suffered by not being able to force someone to act contrary to his or her conscience is another issue.

And, frankly, how safe would you really feel eating a cake that you forced someone to bake for you?

What about the ceremony itself? Does a right to marry someone of the same sex permit you to force a priest, minister, rabbi, or imam to perform the ceremony? In justice, the answer would appear to be “no.” (That, of course, would not stop a court from enforcing an unjust law, but that is another issue.)

A minister of religion is not offering a public service. His or her services — more accurately, “ministrations” — are normally reserved for fellow believers, on whom certain conditions may be imposed in order to qualify to receive those ministrations. A rabbi, for example, may refuse to allow a Christian to read from the Torah as part of a synagogue service, an Orthodox priest may deny communion to members of another Christian church, or a minister may refuse to baptize a Muslim who is not converting to Christianity.

Each of these groups defines these ministrations according to specific religious beliefs. They are meaningless if performed without the intent to comply with those religious beliefs.

That is why, for example, some rabbis teach that, while Passover and Easter share a common origin, they are not the same. Christians cannot have a valid Seder, any more than a rabbi can celebrate a licit Mass. The participants may perform the rituals down to the tiniest detail and say all the correct words, but do not mean the same things by those actions and words as their Jewish and Christian brethren, respectively.

Thus, a State may use its coercive power to force a minister of religion to perform a marriage ceremony between persons of the same sex, but no marriage as defined by that religion could result. Participants may go through the prescribed ritual, not deviating in anything, but mean entirely different things.

This is because what the Catholic Church calls a sacrament requires four things: 1) Valid form (i.e., the correct words must be used). 2) Valid matter (i.e., the “material” or matter out of which the sacrament is confected) 3) Valid person particular to the sacrament (i.e., “authorized personnel” to perform the ritual). 4) Finally, the person or persons performing the rite must have the intent to do what the Church does. Ministers of other faiths would probably change the language and disagree on certain particulars and definitions, but agree in substance with what the Catholic Church teaches in this regard.

Of these four requirements, the only one that would be valid if a minister whose religion defines marriage as being exclusively between persons of the opposite sex is forced to perform a marriage ceremony contrary to the teachings of his or her religion is form.

The matter would clearly be invalid, as persons of the same sex are not, at the same time, persons of the opposite sex.

The “authorized personnel” would, in Catholic belief, also be invalid: a man and a woman administer the sacrament of matrimony to each other. The priest merely officiates. Persons of the same sex are not authorized to marry each other. The fact that the priest does not administer the sacrament simply makes the ceremony doubly meaningless, even if the priest were to officiate willingly.

Finally, given that the Catholic Church defines a marriage as being between persons of the opposite sex, two persons of the same sex obviously do not have the same intent as the Church.

Given these qualifications, it appears evident that for a State to require ministers of religion to perform meaningless rituals in violation of their own beliefs violates religious freedom in two ways. One, it permits the State to dictate religious beliefs and practices, violating any anti-establishment provision in a constitution. Two, it permits the State to force people to violate conscience.

The only remaining question is why anyone would want to force another person to go through the motions and do something so utterly meaningless, a question that probably answers itself.