New Jersey Divorce and Family Lawyer Blog
Recent matters in the news this month have had me thinking about the intersection of religion and law. Earlier this month, Rowan County Kentucky clerk, Kim Davis, was jailed for contempt because she refused to issue marriage licenses to same sex couples despite the June, 2015 decision of the U.S. Supreme Court which decided that states cannot ban same sex couples from marrying. Ms. Davis, an elected official, indicated that she could not sign marriages licenses in which her name appeared without violating her conscience and her Christian religion. She was released from jail with the proviso that she not interfere with the clerks in her office who were issuing marriage licenses to same sex couples. Ms. Davis’ decision created discussion in the press and in the public about religious freedom. Ms. Davis had many supporters, the most vocal of whom was Republican presidential candidate, Mike Huckabee. Recently, Senator John McCain also has expressed support for Ms. Davis, stating “I think she was right in that she can exercise the dictates of her conscience and everyone should respect that. . . . I do not believe that therefore she should violate the law. She should have just said, ‘I refuse to do it.’. . .”.
Issues involving family law often involve social issues and how we address family law reflects the contemporary values of our society. While many thought that the dispute over same sex marriage had ended with the Supreme Court decision in June, the refusal of a government official to enforce a secular law that violated her personal religious principles not only continued to the debate over same sex marriage, but created further debate about religious freedom and whether the government can punish a government worker for not following a law that interferes with their religious beliefs.
On the heels of this continued dispute, Pope Francis visited the United States this week in a historic visit. He not only conducted religious services at Madison Square Garden and St. Patrick’s Cathedral in New York and prayed at Ground Zero with religious leaders of varying faiths, but he attended a Conference on Families in Philadelphia. Pope Francis is considered not only a popular and fairly progressive pope. The Pope can be, however, political as well. He met with President Obama at the White House, and addressed both Congress and the United Nations.
Pope Francis appears to be presenting a Catholic Church that is more merciful, inclusive, less divisive and more loving. For instance, Pope Francis has been critical of the Catholic Church for being “obsessed” with issues such as abortion, homosexuality and birth control, saying that it is more important for the Church to focus on love, making the Church a “home for all” and to prioritize service to the poor and marginalized in society. He has made comments about matters that involve either family law and/or how families operate that appear conflicting in their seeming acceptance of all people while at the same time not altering Catholic doctrine.
Pope Francis has numerous statements about the need for the Church to change which suggests he is a progressive thinker, something else that has endeared him in this county. In a 2014 assembly of Catholic bishops in which the Pope addressed homosexuality, gay marriage, divorce and remarriage, Pope Francis was reported to have stated that the Catholic Church should not be afraid of change, that the Church should be less rigid and more merciful and that “God is not afraid of new things. That is why he is continuously surprising us, opening our hearts and guiding us in unexpected ways”. The Pope this week stated: “I would like to think . . . that the history of the church in this city and state is really a story not about building walls, but about breaking them down.” He also said: “This will require creativity in adapting to changed situations, . . . carrying forward the legacy of the past not primarily by maintaining our structures and institutions, which have served us well, but above all by being open to the possibilities which the spirit opens up to us.”
The Pope in his visit to the United States has emphasized devotion to families and family life, telling the crowd gathered to see him in Philadelphia: ““You know what God loves most?. . . To knock on the door of families and to find the families who love each other – families who bring up their children to grow and to move forward. Who create, who develop a society of truth, goodness and beauty.” He also expressed an awareness of difficulties in family life, stating that families “carry a cross”, that “Families face many difficulties. . . . Families fight. And sometimes plates fly, and sometimes kids get knocked on the head. And let’s not even talk about mothers-in-law.” He expressed the need for more laws that protect families – such as laws that help the poor. In the speech he planned to deliver, he wrote that “We cannot call any society healthy when it does not leave real room for family life. . . . We cannot think that a society has a future when it fails to pass laws capable of protecting families and ensuring their basic needs, especially those of families just starting out.”
Pope Francis has not changed the Church view that Catholic couples who obtain civil divorce decrees and then remarry in civil ceremonies are committing adultery. However, before his current visit to the United States, the Pope announced plans to make it easier for divorced couples to obtain annulments in the Catholic Church.
He has not changed Catholic Church’s opposition to abortion, but has stated that priests may absolve women during the coming Year of Mercy if they confess their abortions and are contrite. However, during his trip to the United States this past week, the Pope made an improptu visit to The Little Sisters of the Poor, a visit which has been interpreted as Pope Francis’ support of their legal battle with the Obama administration over the requirement in the Affordable Leave Act that requires insurers to offer free contraception coverage to employees.
Pope Francis has also made statements with regard to homosexuality and same sex marriage. An article in the publication Irish Catholic, examined Pope Francis’ views on homosexuality, noting that in 2013 he stated that Catholics need a Church that will “heal the wounds and warm the hearts of the faithful; it needs nearness, proximity”. The Popes expressed his awareness that homosexuals feel “socially wounded” due to the feeling that the Catholic Church excluded and alienated them, with the Pope expressing that the Catholic Church should not do so. Pope Francis stated in July, 2013: “If a homosexual person is of good will and is in search of God, I am no one to judge… it is not right to interfere spiritually in the life of a person.” He explained: “Tell me: when God looks at a gay person, does he endorse the existence of this person with love, or reject and condemn this person? We must always consider the person. Here we enter into the mystery of the human being. In life, God accompanies persons, and we must accompany them, starting from their situation. It is necessary to accompany them with mercy.”
The Pope, however, does not support same sex marriage. The aforementioned article in Irish Catholic noted that Pope Francis expressed the need to preserve the concept of “family” as an institution based on marriage between a man and a woman, that Pope Francis views the issue not as a political one but as one of “human ecology”, that he has described efforts to redefine marriage as a form of “ideological colonisation” and that the Pope believes that “children have the right to grow up in a family with a father and mother creating a suitable environment for the child’s development and emotional maturity.” Just this week, The New York Times reminded us while that Pope Francis has expressed mercy and lack of judgment for gay people, he does not accept gay marriage nor changed Catholic thinking that homosexuality is “intrinsically disordered”.
Before leaving the United States this week, Pope Francis also expressed his support for Kim Davis without mentioning her by name, but by stating that “government workers have a ‘human right’ to refuse to carry out a duty if they have a ‘conscientious objection'” and that anyone who prevents someone from exercising religious freedom is denying them a human right.
The First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” Can or should the government favor a particular religion such as Christianity, the faith of the founding fathers? How do we as a diverse country filled with many different cultures and faiths protect religious freedom that the First Amendment provides, yet still be governed by a secular government that governs all? How can the secular government make laws in the face of various religions that do not welcome change as quickly?
It is the separation of church from state that allows for religious freedom. Evangelical writer Brandan Robertson, who argued that the arrest of Kim Davis was a protection of religious freedom and not an attack on it, has pointed out that the separation of church and state ” . . . is the fundamental principle that ensures that all Americans will be able to practice their religious convictions freely and openly without fear of government regulation or prohibition. . . . While religious institutions are guaranteed protections against any government regulation or involvement in their religious life, the government is also protected from religious institutions’ attempt to garner political power over the nation. This separation is one of the fundamental pillars of American society. The Church will never overtake the government and the government will never overtake the Church. This is what our founding fathers fought for.”
Our religious institutions and beliefs influence our values and how we live our daily lives, and it has become increasingly common for religious figures to make political statements and for our politicians to express and share their religious beliefs when courting voters. We are, however, governed by the Rule of Law, and hence we are governed by laws enacted by our elective Legislature, interpreted by the Judiciary, and enforced by the Executive branch in an effort to protect our religious institutions from the government, and to protect our government from religious institutions. In this way, no religion is supreme to another, thus ensuring our religious freedoms. Thus, we can rejoice in the Pope’s visit and his spread of an inclusive, loving spirit, but also rejoice in the notion that our religious freedoms are allowed by a secular government enacting laws.