MARC GELLMAN REPLIES TO ANDREW SULLIVAN: part one

Andrew Sullivan is a senior editor at TNR.

Rabbi Marc Gellman is the past President of the New York Board of Rabbis.

Gellman writes: My annotations of Andrew Sullivan's recent piece in The New Republic. I consider Andrew Sullivan to be by far the most important defender of gay rights today. His mistakes are common, but influential. I hope my notes respond adequately to his accusations.

[From here on in, Sullivan will be in plain text and Gellman will be in bold text.]

Faith Heelers
by Andrew Sullivan
Post date: 11.25.03

We may be on the verge of a divisive and bitter struggle over the Constitution of the United States. Alarmed that the U.S. Supreme Court has upheld the equal dignity of homosexual citizens and struck down laws barring gays from private consensual sex, and appalled that the Supreme Judicial Court of Massachusetts has ruled that the right to marry cannot be denied to gays any longer in that state, the religious right has a constitutional amendment within its sights. The president hasn't yet endorsed such an amendment; and would be extremely wise not to. But it's now floating out there, subject to several changes demanded by various factions on the far right.

Here's the proposed text:

"Marriage in the United States shall consist only of the union of a man and a woman."

This sounds simple enough. But the word "marriage" is extremely broad. Its main problem is that it conflates both civil marriage and religious marriage. By not being specific that it refers to civil marriage and civil marriage alone, the wording of this first sentence could be subject to considerable doubt. Could this mean that a church that decided to marry two people of the same gender would be violating the Constitution? Isn't civil regulation of religious marriage against the First Amendment? Take one large church in the United States: the Metropolitan Community Church. MCC performs weddings and marriages on a regular basis for gay couples. Episcopalians are increasingly blessing same-sex unions and calling them marriages. Ditto reform Jews, and many other denominations. Are they now going to be prevented from doing so? Is their right to do so somehow in doubt? To make clear what's going on here, the amendment should surely be corrected to say "civil marriage." The government has absolutely no right to interfere with anything else.

Gellman: AS misses the most essential point of the FMA at the very outset of his critique. It is precisely the fact that only marriage is restricted to opposite-sex unions that enables states, against the desires of the far right, to enact legislation providing for civil unions which will guarantee the rights of homosexual couples while also preserving marriage as a union of a man and a woman. Furthermore, no clergy I know have the temerity (read chutzpah) to call the same-sex ceremonies they perform marriages. As agents of the state (like notary publics and lawyers) clergy are legally forbidden (except now in Mass.) from registering the same sex marriages they officiate at as marriages. They are or are not religiously entitled to perform a religious ceremony but they are not entitled to call it a marriage as an agent of the state. This is not a violation of church state separation but rather an explicit and legally binding agreement by the clergy to conform to the laws of the state where they have registered their credentials with a state agency when they are performing marriages. I am often asked to perform "social security marriages" in which the couple wants a religious ceremony that they want me not to register with the state. This is fraud. It is similarly illegal for clergy to call these same-sex rituals marriages. Most clergy who do them in fact refer to them as commitment ceremonies or something of the sort, but not marriages, and if they do refer to them as such it is only in a colloquial way, not in a legally binding way. These commitment ceremonies will no doubt continue for all clergy who feel that same sex unions deserve sanctification as a valid act of committed love.

The fundamental and incontrovertible reason to support the FMA and constitutionally limit marriage to opposite sex unions is the realistic legal fear that the full faith and credit clause of the Constitution will require all states to recognize the same sex marriages performed in Massachusetts. This will deprive citizens of this country of the right to discuss and debate and decide through their representatives in their own states whether or not to create in addition to marriage other forms of state sponsored unions with the same or similar rights granted to married couples. The notion that this morally and politically divisive issue ought to be settled by the Massachusetts judiciary (and in a close and divided decision at that) is unfair, presumptuous, and elitist. In any event the rights of clergy to perform any non-state recognized union and call it whatever they want, except marriage, will remain unaffected and untrammeled).
posted by Eve at 6:04 PM | link

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