Bishops File SCOTUS Briefs

By Lee Penn

Twenty-nine bishops of the Episcopal Church filed two Supreme Court briefs Feb. 28 supporting same-sex civil marriage. These bishops, acting at the invitation of the Rt. Rev. Marc Handley Andrus, Bishop of California, have asked the High Court to overturn two laws that restrict civil marriage to heterosexual couples. They have been joined in their plea by a number of liberal Christian and Jewish groups, and by gay caucuses within several of these denominations.

All Episcopal bishops in California — six ordinaries and two suffragans — support a challenge to the constitutionality of Proposition 8, the 2008 ballot initiative that ended civil marriage for same-sex couples. Twenty-nine bishops (from California, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia — the jurisdictions which allow some form of same-sex civil union) filed a similar brief disputing the constitutionality of the 1996 Defense of Marriage Act (DOMA).

DOMA bars federal recognition of same-sex marriages, and allows states to deny recognition of same-sex unions from other states. Among ordinaries serving in these 10 states, only one refrained from joining the brief in support of same-sex marriage: the Rt. Rev. William H. Love, Bishop of Albany. The full text of the brief against DOMA is available here, and the full text of the brief against Proposition 8 is here.

“We have signed these briefs because the Episcopal Church is on the side of integrating human rights and respect,” Bishop Andrus said in a diocesan press release. “We are honored to be supporting these Supreme Court briefs and view our participation as one line of our overall support of the rights of LGBT people. That support also includes advocacy and the development of supportive structures within the church to offer welcome into loving Christian communities.”

The bishops’ briefs against Proposition 8 and against DOMA are almost identical. They hold that Americans are religiously diverse, and that an increasing number of American religious institutions accept same-sex unions as a reflection of God-given human dignity. The bishops emphasize the distinction between civil and religious marriage, and claim that acceptance of same-sex civil unions will not infringe on the freedom of conservative religious organizations to deny religious recognition to such unions.

The bishops argue that “types of conflicts forecast by certain other amici already can and sometimes do arise under public accommodation laws whenever religiously affiliated organizations operate in the commercial or governmental spheres. Courts know how to respond if enforcement of civil rights laws overreaches to infringe First Amendment rights.”

The bishops and their allies hold that “in our vastly diverse and pluralistic society, particular religious views or definitions of marriage should not be permitted to influence who the state permits to marry or how legally married couples are treated by the federal government. Such rights must be determined by religiously neutral principles of equal protection under the law.”

In a February 28 column for The Washington Post, Bishop Andrus offered a forthright defense of the stand that he and other liberal Episcopalians have taken on same-sex unions and other cultural conflicts: “[We] are a church that believes Christ continues to be with the world, moving with us, helping us find meaning in moments of joy and also loss and pain. The Christ whom we recognize is the one who speaks in John’s Gospel, saying, ‘There are many things I would teach you but you cannot bear them now … the Sprit will lead you into all truth.’ For Episcopalians, tradition is a moving force that is not only dynamic but that changes quality over time, and we might liken the change to be one of more light being cast into the world.

Bishop Andrus discussed the filings further with TLC via email:

What reaction, if any, have you received from the Presiding Bishop, or her staff, or other Episcopal bishops?

There has been no official reaction from the Presiding Bishop or her staff to the filings. We of course kept the Presiding Bishop informed prior to the filings.

Is there any conservative opposition to these filings from within the Diocese of California? If so, how do you address their concerns?

We have received no negative communications from within the Diocese of California.

Has this filing created new difficulties with those who are in ecumenical or interfaith dialogue with the Diocese of California? If so, how do you address these concerns?

As of yet, these filings have not created new difficulties with those with whom are in ecumenical or interfaith dialogues and partnerships. The Diocese of California’s participation in the amici curiae briefs is a continuation of the Diocese of California’s ongoing participation and work for full inclusion of lesbian, gay, bisexual, and transgendered people both in the church and civil society. Filing these briefs comes as no surprise to those with whom we continue to be in ministry.

The amicus filings reiterate the distinction between religious and civil marriage. For the Episcopal Church at this time, what is this distinction? Is same-sex marriage considered a sacrament in the way that opposite-sex marriage is?

The distinction at this time between the sacramental and civil acts of marriage is ambiguous. The Episcopal Church is, in this triennium, currently studying our theology of marriage. This summer we approved a rite for blessing same-sex unions that is explicitly not a marriage ceremony, but could be used to bless a civil marriage (similarly to the blessing of a civil marriage in the Book of Common Prayer). Currently some bishops do not allow their clergy to officiate at same-sex weddings and sign marriage licenses, while others have modified the Prayer Book rite of celebrating and blessing a marriage so that the full sacramental service may be used for same-sex couples.

For you, what is the theological difference between (a) a marriage between a man and a woman, and (b) a same-sex marriage, as it would be conducted in a state where same-sex unions are legal?

In my opinion, and in my opinion alone, the sacramental quality of the marriage or blessing emanates from God, is comprised of God’s divine energy. It seems that God would grant the grace of the sacrament to any who faithfully entered into the sacrament seeking that blessing and grace. “If you, then, though you are evil, know how to give good gifts to your children, how much more will your Father in heaven give good gifts to those who ask him” (Matt. 7:11).


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