Protecting families in the wake of Proposition 8

Recently, the step-mother of a prominent member of our congregation died suddenly. This member of our congregation happens to be gay. His partner of many years, who is also very active in the parish and who considered the deceased his mother-in-law, was unable to take bereavement leave from work. 

That hurt this family deeply. Such is the state of the civil law in Virginia, where only one type of family, between married people of the opposite sex, is recognized. Make no mistake: the civil law matters and has an impact on the everyday life of families.

I'd like to start there in reading yesterday's decision by the California Supreme Court on Proposition 8, banning gay marriage. We ought to be concerned with strengthening families, and to do so we need to recognize that there are a variety of families in our community -- straight, gay, and those with single parents. 

The tragedy of yesterday's ruling is it creates more outcasts in our society when we ought to be working to achieve unity. Inevitably, the decision will be read as affirmation by those who think their type of family is threatened by the existence of other types of families. That is simply wrong and has nothing to do with the Gospel of Jesus Christ.

Last night, I took the chance to re-read the California Supreme Court carefully (see post below from yesterday for my initial impressions, and for a link to the opinion). The court maintained that even with the repeal of the designation "marriage" for gay people, there remains in place a structure of rights to protect families -- all kinds of families -- in California. 

Nothing remotely close to that exists in Virginia. 

The ruling is likely to please no one. The court appeared to reverse itself from last year when it said that marriage is a right that cannot be confined to one class of adults. Yet yesterday the justices argued that the word "marriage" is simply a designation with no underlying rights. On pages 34-37, the opinion sets up a legal designation for gay unions with all of the rights of marriage as long as it is not called "marriage." Here's the crux of the court's opinion:

The new constitutional provision cannot properly be interpreted as having repealed, by implication, the preexisting state constitutional right of same-sex couples to enter into an officially recognized and protected family relationship except insofar as that preexisting constitutional right included the right of access to the designation of marriage...

[A]lthough Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.”

In other words, if the proponents of Proposition 8 believe they were peeling back all legal protections of gay people, they are wrong. What the court appears to have done is set up a new designation without name for legal unions among people of the same sex. The word "marriage" ends up with an unclear legal meaning.

Not to put to fine a point on this, but such legal verbal gymnastics do not pass the duck test: If it walks like a duck, quacks like a duck, it is a duck. If it looks like marriage, has all the rights of marriage, isn't it marriage? The California Supreme Court wrote a decision that might work in a law school classroom, but it lacks basic common sense. At best it creates more legal confusion around who is married, who is not, and what marriage legally looks like. There is no doubt that California voters will be asked once again to decide who can and cannot be married.

And that brings me back to Virginia. Yesterday evening, Lori and I joined a gathering of 35-40 people at "Free Speech Wall" in front of Charlottesville City Hall to show our support of our gay brothers and sisters who have been denied the basic right to be married, and to show our opposition to the California Supreme Court ruling. It was one of two demonstrations in Virginia on the issue last night. We then marched up to the federal building and stood with signs for about a half hour. Motorists driving by signaled support, and more than a few quizzical looks.

We were there for a simple reason: It is time that our gay and lesbian brothers and sisters in Virginia are afforded the same legal protections for their families that Lori and I enjoy. Churches may marry whom they wish to marry, but that should have no bearing on our basic legal rights as American citizens.

It is time to protect families in this state. It is the right thing to do.

California Supreme Court ruling on Proposition 8 and gay marriage

As you probably know by now, the California Supreme Court handed up its ruling this morning on Proposition 8, which amended the state constitution to define marriage as between opposite-sex couples. The court ruled that the amendment was valid, but also ruled that the 18,000 same-sex marriages that were performed up until last November remain legally valid. You can read the full decision in Strauss v. Holton by clicking HERE.

I have read the decision, and I am struck by a number of items. In one sense, the court ruled narrowly, saying that its responsibility was confined to deciding whether the voters had amended the state constitution validly: "It bears emphasis in this regard," the court wrote, "that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

The court noted that, unlike the U.S. Constitution, amending the California Constitution is relatively easy. There have been only 27 amendments to the federal constitution since 1789 while there have been more than 500 amendments to the state's constitution in barely a century.

Here is where today's ruling gets interesting; the California Supreme Court rested its decision on the premise that Proposition 8 did not, in fact, limit the rights of same-sex couples other than to remove the designation of "marriage" from such unions. The court said that to have limited rights would have been a constitutional "revision," and that the voters cannot do.

The Supreme Court maintained that the legal rights of couples, same-sex or opposite-sex, remain unchanged regardless of whether it is called "marriage." Proposition 8, the court said, left "undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Yet is that true? Last year, the same state Supreme Court ruled that marriage was so inherently important that it could not be denied couples based merely on their gender or gender preference.

Therein is the crux of the moral, legal and political argument that will continue to take place. Are rights (not privileges) being denied, as the court ruled they were only a year ago? The stories of real human beings must be told -- again. Those with open hearts, I pray, will listen. No church, no member of the clergy, is being forced to perform any kind of marriage ceremony he or she does not agree with. I also pray that those of us who support equal access to marriage will do so in a way that is without rancor, that looks for the best in people, and not their worst, and seeks always to bring healing and reconciliation among all people.

As religious people, as followers of Jesus Christ, I pray that compassion will be our guide. And compassion should bring us to a place of support for those who wish to live in loving, committed relationships called marriage, with the full protection of the law. What would Jesus do?

Reactions to the California Supreme Court ruling on property

Let me share a few reactions to yesterday's ruling by the California Supreme Court. In case you missed it, the California Supreme Court ruled in favor of the Episcopal Church in its lawsuit to regain control of three breakaway congregations in Southern California. The breakaways maintained they were justified in splitting from the church, and taking property with them, because of the consecration of Gene Robinson, the first openly gay bishop. The court ruled otherwise, that the local congregations hold property in trust for the mother church and cannot take property with them if they chose to leave the denomination. You can read the full opinion HERE.

Also please scroll down to my post from yesterday for my own reaction to this. You might also look at the dialogue I had in the comment section with a polite anonymous poster.

A few reactions:

From the Rt. Rev. Jon Bruno, bishop of the Diocese of Los Angeles:

"The Episcopal Diocese of Los Angeles is overjoyed with the conclusive opinion of the California Supreme Court.

"We have prevailed in all areas of law addressed in this case.

"We look forward to the possibility of reconciiation with these congregations, and we assure that this Diocese and the people of The Episcopal Church that we will continue mission and ministry in the areas of these congregations.

"The mission of The Episcopal Church in the Diocese of Los Angeles continues, as our prayer book states, 'to restore all people to unity with God and each other in Christ.' We will continue to seek this reconciliation with fellow Christians in the communities of Long Beach, Newport Beach, and North Hollywood, as well as La Crescenta, where Episcopal church properties continue as part of the Diocese of Los Angeles in accordance with the Court's opinion announced today.

"We acknowledge that this opinion establishes a precedent. We further note the pastoral concerns at this time within The Episcopal Church, which continues in its mission of service, especially in providing food, shelter, medicine, and pastoral care to those in greatest need locally and globally, respecting the dignity of every human being."

And this from the Los Angeles Times reporting the reaction of the breakaway churches:

But some breakaway parishes remained defiant. 

The Rev. William Thompson of All Saints Anglican Church in Long Beach called the ruling "a disappointment," and said that reconciling with the Los Angeles diocese was not an option for his parish of 350 to 400 members. 

"Our congregation will survive and, I think, thrive, no matter what the outcome," he said. "We are not anticipating somebody coming tomorrow and removing us. We don't think that's going to happen. Beyond that, I just don't know."

Eric Sohlgren, an Irvine attorney who represented All Saints and St. James, said the ruling might deter congregations from joining national denominations in the first place. He said the St. James parish would introduce new evidence in trial court to try to demonstrate that it should prevail, even under Monday's ruling, and might appeal to the U.S. Supreme Court.

California Supreme Court rules in favor of Episcopal Church

This just in: The California Supreme Court ruled a few minutes ago in favor of the Episcopal Church in its property dispute with two break-away congregations in Southern California (Newport Beach and Long Beach). This is a huge decision for those of us who have been involved in these disputes for several years, and I pray this will prompt a settlement in other cases in California. Here is the pertinent paragraph from the Court this morning:

"Applying the neutral principles of law approach, we conclude that the
general church, not the local church, owns the property in question. Although the
deeds to the property have long been in the name of the local church, that church
agreed from the beginning of its existence to be part of the greater church and to
be bound by its governing documents. These governing documents make clear
that church property is held in trust for the general church and may be controlled
by the local church only so long as that local church remains a part of the general
church. When it disaffiliated from the general church, the local church did not
have the right to take the church property with it."

You can read the full decision by clicking HERE.

It should be noted that the breakaway congregations won at the trial court level, but lost on appeal. The California Supreme Court is upholding an 88-page decision of the California 4th District Court of Appeal. The case in which I have been involved, with a breakaway congregation in Petaluma, Calif., has been on-hold pending the decision in the Southern California cases. I hope the Petaluma case can now go forward, or even better, if the renegade Petaluma congregation will hand over the keys or rejoin the Episcopal Church. This decision could also have an impact on the lawsuit seeking to regain control of the Diocese of San Joaquin.

While the decision of the California court has no direct bearing on the nine cases yet to be decided in Virginia, it should be noted that California decisions historically have been cited by other state high courts. The California Supreme Court in its ruling also cited cases from the United States Supreme Court which should have a bearing on Virginia and other states. The Virginia cases are still in the trial court stages, where an 1867 law has, so far, been used with success in allowing the breakaway congregations in Virginia to retain property that Episcopal Church claims that it owns. 

By the way, though no one seems to mention this much, the 1867 Virginia law in question was passed after the Civil War to allow local churches to disaffiliate from national denominations rather than allow African American ex-slaves to join their churches. It is upon that law, with roots in the history of white supremacy, that the breakaways of Virginia now rest their case. Perhaps the higher courts of Virginia will see this as California Supreme Court now sees it.