Groups Say Ban on Gay Vows Breaches Religious Freedom

By Nacha Cattan

Published March 19, 2004, issue of March 19, 2004.
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In an unusual move, a local prosecutor’s effort to stop ministers from performing same-sex marriages is drawing fire from Jewish civil rights agencies not only on grounds of privacy or gay rights, but also of religious freedom.

Officials with the American Jewish Congress and the Religious Action Center of Reform Judaism charge that the district attorney in upstate Ulster County, N.Y., wrongfully interfered in religious ceremonies when he filed criminal charges against two Unitarian Universalist ministers performing same-sex marriages in the town of New Paltz.

The Religious Action Center described the action as part of a larger trend of government intrusion in religious affairs. “This is part of a pattern where we see the government more willing to regulate the activities of religious entities and cut back on constitutional protections,” said the director of the Religious Action Center, Rabbi David Saperstein.

The criminal charge has touched off a wave of protest by liberal members of the clergy who are framing the event as an attack on religious freedom. In response, clerics are risking arrest to sign up by the dozens to perform same-sex religious weddings.

Ulster County District Attorney Donald Williams argued that the misdemeanor charge leveled against the two ministers was not a violation of church-state separation because the two ministers “have publicly proclaimed their intent to perform civil marriages under the authority vested in them by New York state law, rather than performing purely religious ceremonies,” he said in a statement. Williams charged the ministers with solemnizing a marriage without a license, which carries a fine of $25 to $500, or up to a year in jail. The same charge was filed last month against New Paltz Mayor Jason West.

Marc Stern, AJCongress general counsel and assistant executive director, said the district attorney overstepped his authority by charging the ministers. At issue is whether these ministers committed fraud by claiming to marry a same-sex couple legally although the law clearly does not recognize such a marriage, Stern said. Unlike a mayor, who is a public representative of the law, Stern argued, the ministers could not have misled the public into thinking that they performed anything beyond a religious marriage, especially after the controversy in New Paltz over the mayor’s arrest.

“They are not in violation,” Stern said, “unless they did something like fill out a license form or represent to a third party like the Social Security office that these people have been married under the laws of New York.”

“The idea of using criminal sanctions to regulate what everyone understands to be only of religious significance is very scary,” Stern continued. “It’s not the place of district attorneys to police what religious organizations do in a purely religious vein.” Stern, however, said that the New Paltz charges are essentially about gay rights.

But Rabbi Avi Shafran, spokesman for Agudath Israel of America, an Orthodox advocacy group, said the ministers should have seen it coming. “They have to follow rules of civil authorities,” he said. “And if they didn’t, they’re subject to civil penalties.”

Rabbi Ellen Lippmann of Kolot Chayeinu/Voices of Our Lives, a progressive congregation in Brooklyn, announced that she would officiate at a same-sex wedding on March 18 on the steps of City Hall in New York City. She is one of nearly 100 clergy-members who have signed a pledge to marry same-sex couples that is posted on the Web site of New York City’s Congregation Beth Simchat Torah, the largest gay Jewish congregation in the world.

Lippmann told the Forward that she views this ceremony as a civil marriage and that she will invoke the power of the state. “I will say some version of ‘by the power vested in me by the state of New York.’ I’m looking at it as a civil wedding as much as it can be.”

She acknowledged that same-sex couples are not allowed to obtain marriage licenses, “so it’s not a full legal ceremony.” But, she continued, if she is charged with performing a wedding without a license, she would be “perfectly happy” to get arrested.

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