And what is the psychotropic "pill" that Americans are being given?
NOM's campaign for "traditional marriage" continues to push down our throats the idea that it's okay to permit a long-standing violation of the Constitution's establishment clause. This violation is bigger than just helping the right to manipulate marriage the way they do. It actually gives the clergy special powers and privileges. Today the violation screams to be challenged.
Dark Side of Our History
The fact is -- during and after our nation's formative period, the believers among our founders and national legislators saw to it that religion was quietly cut a deal.
Nothing was overtly granted in the U.S. Constitution, of course. The Constitution was put out there in plain view, making its bold statement in the First Amendment that "Congress shall make no law respecting an establishment of religion." But quietly, ever so quietly, back in the shadows of government, Congress actually did just that. It made laws and regulations that favor religion -- especially through our tax code as it evolved.
Today the United States is noticeably absent from the list of 61 countries that have disestablished an old religion formally. We are on a longer list of countries that are "secular," without an official religion.
But our presence on that "secular" list is a joke. Every day, every year, as conservative Christians tighten their hold over national policy, we are heading closer to a formal re-establishment of religion. The right keeps sending bills into Congress that inch us in that direction. DOMA is certainly one of those pieces of legislation -- but there are others.
Historically, our government's closet establishment of religion went beyond allowing churches and religion-related organizations to be tax-exempt, A special niche was actually carved out for clergy. Not only were they granted the right to visit prisons and keep confessions "confidential," but they were exempted from jury duty. They were subsidized by being able to travel free and claim certain tax breaks. They are even allowed to hold public office, thus creating a conflict of interest.
Last but not least, clergy were made government officials for a day by granting them the power to make a marriage legal by conducting a church nuptial ceremony.
The Danger of Clerical Powers
So what we have today is really a "pretend separation of church and state."
The church powers have owned their comfy niche for over two centuries and now they're greedy to make it bigger. As they clamor for the right to dictate how and why and if all Americans should have the right to marry, without discriminating against a particular group, they are also claiming the right to dictate to us in other areas of our personal lives -- in sex, reproduction, sexual orientation, gender identity, child rearing, education, the arts and other areas of concern.
Now and then, organizations that advocate REAL separation have challenged facets of clergy privilege. For example, American Atheists was involved with a 2002 lawsuit over a 1921 IRS regulation that allows clergy to get a tax break on housing costs. The religious lobby screamed foul over this attack on what they view as a cherished "tradition." The IRS regulation was finally declared to be constitutional, and Congress fell over itself to pass new legislation buttressing the practice.
So it is time for those middle-of-the-road Americans --the ones that the Post is talking about -- to wake up and see what the poison pill of disinformation from the religious right is doing to their thinking.
I am convinced that clergy privilege and legal powers, especially where marriage is concerned, is unconstitutional and should be stopped. The only people who should legalize a marriage are secular officials -- mayors, justices of the peace, etc.
Threat to LGBT Marriage Strategy
Our own demographic is obviously awake to the extreme danger of growing conservative church privilege in American life. Unfortunately we are torn by disagreement about how best to fight it.
Much as I want us to win the state-by-state battles over marriage -- whether in 2010 or 2012, or whatever -- I fear that the religious right will eventually grind us into the ground.
We have agreed to fight with them on the state-to-state battlefield. But they are more numerous than we are. They have more access to massive amounts of money. If we win a state on the legislative front, the right simply organizes a ballot challenge to nix the legislation -- as it did with Prop 8. When we win a court decision, the right call it "judicial activism" and threaten to recall the judge. They can keep us running from local battlefield to local battlefield for decades on end.
Will the torturous California Prop 8 debacle now be repeated in Maine and other states where same-sex marriage is now legal? Probably. And the effort will surely leave the LGBT community financially and emotionally exhausted.
All the while, the Establishment Clause problem is not being addressed. We are trying to trim the monster's toe-nails with nail clippers, when we should really be looking for a sword big enough to cut off its head.
How the Machinery Works
Recently I ran across a book that lays out the religious right's position on Christianity's relationship with U.S. law. It's titled Ministry and the American Legal System, by Richard B. Couser (Fortress Press, 1993).
Couser is an attorney and Yale Law School graduate. Essentially his book is a manual for Protestant clergy and lay people. It aims to help churches deal safely with the machinery of U.S. law -- property ownership, taxation, hiring and firing, who they can discriminate against, funds and trusts, clergy-penitent privilege, etc. But for a non-church person like me, the book is very revealing as to how the religious righters see the vast machinery of state being put to work for their benefit.
Marriage doesn't have a chapter of its own in Couser's book. Instead the author has sandwiched "conducting a marriage" into Chapter 5, which unfolds all the "legal privileges and obligations of clergy." Clergy are precisely defined by federal law so they can claim their tax breaks, conduct marriage ceremonies and interact with various state laws. To claim they're "clergy," a person has to be formally ordained and meet a dozen different criteria.
From that core definition, ministers and priests and rabbis and imams get their power to be a government official during those minutes that they stand there marrying a couple in church.
True, a marriage ceremony in church is subject to the laws of each state, and must be licensed by the state. But here is the most eye-opening statement of Couser:
"In performing marriages, clergy are considered to function as public officers for limited purposes. The concept is a carryover from English law and the notion of established churches. It seems to have been universally accepted and apparently never challenged as a violation of the Establishment Clause. In this particular area, a religious ceremony results in a valid civil marriage that carries rights and responsibilities enforceable by the secular legal system. Performance of the marriage ceremony stands as a universally accepted reminder that 'we are a religious people' and also recalls the time when established churches in America had public functions as arms of the state."
So...by the religious right's own admission, they are vulnerable to a well-targeted challenge to the constitutionality of clerical powers. Isn't it time to launch that challenge?
Couser claims that this official power of clergy is "universally accepted." Really? Accepted by whom? It is certainly rejected by the hundreds of thousands of Americans who wed in secular ceremonies in the U.S. According to state statistics, there are more and more civil marriages every year. These people are voting with their feet -- they can't be counted as yes votes in that alleged "universal acceptance."
Nor do all non-religious people in the U.S. agree with the righters that "we are a religious people."
Europe Shows the Way
Europeans are way clearer about the evils of state religion. After all, Europeans fought a series of long and horrible wars over religion. During the revolutions that jarred Europe between 1500 and 1920, enormous hatred of churchly privilege and abuse was expressed by long-suffering peoples and minorities.
Today some countries in western Europe, including France, Germany, Italy and Netherlands, recognize only civil marriage as legal. So, on the big day, you go to city hall and get married. The secular ceremony is what makes your marriage legal. Then, if your personal choice is to have a marriage ceremony in the Catholic Church, or the German Lutheran Church, or whatever faith you follow, you can go on to your church and do that. But the church ceremony confers no legality. Why? Because the clergy have been stripped of secular powers.
For sure, American religious righters will have a tantrum if anybody tries to take away their plethora of pet privileges.
But Couser notes (in that quote above) that U.S. marriage practice is a carry-over from English law. Long after the U.S. went through motions of separation of church and state, England clung stubbornly to established religion and church-controlled marriage. Well into the 1800s, English marriage law mandated that no marriage was legal without a ceremony in the Anglican Church. Grudging exceptions were granted to Quakers and Jews, whose marriages in their own forums were recognized as legal. Not till 1863 did Britain finally allow civil marriage for those who wanted it! But it preserved the custom of granting official powers to clergy. To this day, England still has a state religion, Anglicanism, and the church continues to occupy a position of enormous privilege, political power and wealth -- to the great irritation of those English who would like to see religion disestablished in their country.
But why should the United States stay slavishly chained to the example of English law? Especially after we fought a revolution to be independent from England?
So "sanity with a smile" is really "insanity with a leer." Our own legal eagles need to be looking for the right case to put on a track to the Supreme Court. We will need to make common cause with all those non-LGBT groups who share our concerns about the Establishment Clause.
I also hope that Congress will get up the courage to stop pandering to religion so pathetically.
Once the monster's head has been cut off, there might be a better chance for same-sex marriage to be legalized -- and to be protected from counterattacks -- in all 50 states.