Just because a lawsuit is weak – with no precedent to support it – does not mean a plaintiffs’ lawyer won’t try to bring it. It is a miscarriage of justice when any defendant must spend money defending a frivolous lawsuit, but the harm is even greater when the defendant is a church or other charitable organization. Litigation over marriage ceremonies that churches perform or refuse to perform could potentially add to this problem.
Ever since legal restrictions on divorce and remarriage disappeared decades ago, churches and other religious organizations have sometimes refused to celebrate marriages recognized by the civil authorities. Same sex marriage – now recognized in Minnesota and eleven other states – makes it even more important to distinguish between civil marriages on the one hand and religious marriage rites on the other.
What would happen if a church or member of the clergy were to be sued for refusing to celebrate or allow the church sanctuary to be used to celebrate, a second, third or fourth marriage between a divorced man and a -- sometimes decades younger -- woman or a same sex marriage. Such a lawsuit would ultimately fail anywhere in the United States because courts understand that the right to a civil marriage recognized by state law does not create an entitlement to particular religious services celebrating that marriage. Forcing someone to participate in such religious services or to allow their church sanctuary to be used for such services would be directly contrary to the First Amendment right of free exercise of religion.
That Constitutional right, however, will not prevent a plaintiffs’ lawyer from filing such a suit to harass a church or its clergy, arguing perhaps that as service providers they are no different from a hotel or restaurant that under anti-discrimination laws cannot refuse a room or a table to the honeymooning couple. Never mind the fact that the Constitution includes no provision protecting the freedom to run boarding houses and taverns, whereas there is a First Amendment protecting the free exercise of religion. Plaintiffs’ lawyers might sue and worry about such niceties as the Constitution later.
Such suits are extremely rare because they ultimately will fail. In the pantheon of frivolous lawsuits they would rank toward the top. But such suits could occur and the universe of potential plaintiffs has expanded with the advent of same sex marriage. Clergy who disapprove of a marriage -- whether between a man and a woman or a man and a man-- could be threatened with a lawsuit.
This possibility of frivolous litigation is now even more remote in Minnesota, however, thanks to a critically important amendment introduced two weeks ago by State Representative David FitzSimmons.
His amendment to Minnesota’s same sex marriage statute expressly states that the Minnesota statutes refer only to “civil marriage.” The plain meaning of the language is clear -- civil marriage is not religious marriage. A legal right to a civil marriage does not create a legal right to a marriage in any church or other religious institution. A civil marriage in Minnesota means that two people are legally married under the laws of the State of Minnesota; it has nothing to do with whether the couple is legally married under the canon law of the Catholic Church or in the eyes of any other religious organization. The parishioner who asks his priest to officiate at his wedding has no legal right to anything other than a civil marriage. And this means that the priest can tell him where to go to get his civil marriage (city hall). The priest can even tell the parishioner exactly where he will go ultimately if he makes this choice to enter into a relationship that the priest believes to be morally wrong. Civil marriage is the domain of the State of Minnesota; religious marriage is the domain in which the priest and his parishioners discern for themselves a definition of marriage that they believe conforms to the will of God.
The FitzSimmons Amendment is welcome relief for Minnesotans of faith in an age when plaintiffs’ lawyers run rampant with frivolous lawsuits and government agencies sometimes run roughshod over our religious freedoms (the Obama Administration’s brazen attempt to force Catholic institutions to include birth control in employee health plans is the most recent example of infringement on religious freedom). Representative FitzSimmons had made himself a hero for the cause or religious freedom by confronting this long standing problem head on in Minnesota marriage laws, rather than taking the easy way out of requiring the State to withhold its recognition from some civil marriages because some churches do not recognize those same relationships as religious marriages.