Of separation of church and state

I believe in separation of church and state. Both ways.

The state should not tell the church whom to consider men, women, ministers, eligible for marriage, and what not. The only exception is if the church would facilitate crime, such as concluding a marriage between persons where sexual union between them would break age of consent laws.

The church, in turn, should understand that the state’s definition of men, women, marriage, mother, father and what not can be different from the church’s. Roman Catholics had to learn this lesson way before the present debates – when states permitted divorce and remarriage. So if A was married in a Roman Catholic church to B, divorced B in a court, then married C, A is now married to B in the eyes of the church but C in the eyes of the state. We’ll come back to this example later.

These discrepancies are natural, because in the modern Western state the laws come from the People – or, like in the UK, from the Monarch but by democratic control. On the other hand, rules of the church (or mosque, or synagogue, or coven) come from a deity or deities in the way that the church (etc) believes. In particular, in Christian churches they come from the Lord, inasmuch as we believe we can understand the Lord’s will. Of course, the will of the People and the will of the Lord will sometimes diverge, that’s what free will is about.

(And of course any particular judgment about the will of the Lord can also be wrong, but that’s a huge separate debate.)

There are thorny issues at the borders of this separation. So I’ll put in some opinions on those.

To start with. anything that is being done commercially is on the “state” side of the separation – end of story. Jesus Christ said “freely you have received, freely give”; He was famously not very happy about sellers at the Temple. So no exceptions in anti-discrimination law for Christian (Jewish, Muslim, etc) bakers or hoteliers because of their religion. But if someone receives people in their home (or other property) for free or makes a cake for friends etc, the law does not apply. This also means the church can run its own guesthouses/hostels with whatever segregation they fancy – but they have to finance those by voluntary donations.

(This does not mean I always approve of every anti-discrimination decision. I very much agree with the UK Supreme Court on the Ashers case. Nobody can be forced to express a political view – and same-sex marriage is a political question, in fact, a few miles down the road a referendum campaign on it was going on at the time). It’s just that this question is still on the state side of the separation wall; whether anyone involved was Christian, Shinto, or Atheist does not change the situation.)

Also, anyone agreeing to take a State position must obey the laws of the State or leave the position. That’s the Kim Davis case. I really felt for Judge Bunning, who was adjudicating the case, as he is Catholic and I imagined he had to sign his name to a lot of divorces (see example above). I found just now that this was not so: he is a federal judge and US legal tradition keeps federal courts out of family law. Yet I assume many other Catholic judges, who sit on state benches, do sign their names to divorces.

I would argue, moreover, that in business (commerce!) the state can enforce pronouns, recognition of marriage and the like – all because this is on the state side.

There is a further issue, however – of social life of people from certain religions. Some want to cover their faces in public. Some want sex segregation in pretty much everything, like swimming etc; and trans exclusion with that of course.

I think this one is the most tricky, but it is my view that religions who want to push such rules on people should pay for the resources. Yet on the othe rhand the state should not be obnoxiously making rules just to make religious life harder.

Secular schools, or schools with any state financing, should not permit face-covering, as the Western mode of socialization involves seeing the face. BUT: there is exactly zero reason to disallow headcoverings or to disallow body-suits for swimming, whether they are called “burkini” or not. (Except when there is a specific safety reason, but that’s rare).

EDIT September 2020: I retract my former position about facecoverings. Western social norms have changed because of the pandemic, and facecoverings are now widely welcomed and sometimes mandated. There is no more reason for opposition to the niqab or for any restrictions on it.

I would say sex-segregated trans-exclusive swimming, gym, etc sessions can be provided in private establishments, at least if they are booked in entirety by a religious group and then spaces are allocated non-commercially (thus getting over the separation wall). I would even stretch this to provision by the establishment for a primarily religious audience, but then the establishment has to announce the trans exclusion (and justify it by the religious audience, there’s special exception in laws for that).

But no taxpayer funded segregation for religious practices. The only taxpayer funding to religion can concern maintenance of historical buildings. And even there some questions exist as to use of buildings so financed…

In fact, this is how I would resolve the same-sex church marriage conundrum. If, and only if, taxpayer money goes into maintenance of the building, or as in England the state (or Crown) outright owns the building, why not require the church to *rent the building out* outside service hours on a Reasonable and Non-Discriminatory basis? They already rent them out for concerts anyway.

(If an organ is present, the rules would probably require that the parish organist have first refusal on the job, but the organist should never be forced to play – they might not agree with the ceremony or merely have other appointments. My wife is a very good organist and would play for anyone for a reasonable fee, but her schedule can be chock full. If the organist refuses, the organizers of the ceremony should get another organist).

No church ministers are involved, no church doctrine is compromised. The ceremony is to be clearly advertised as held, say, by the Humanist or Unitarian or MCC or whatever other group, *in the building of* St. this-or-that. By the state mandating this as strings attached to maintenance money, the question of church responsibility for the decision is resolved. People who want the beautiful surroundings and, fi present, the organ music get their wish. The church keeps its faith. Win-win?

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