Don't Worry, No One's Going to Force You to Marry Anyone

04/27/2015 04:02 pm ET | Updated Jun 27, 2015

Last week former Arkansas governor and once, and perhaps current, presidential hopeful Mike Huckabee warned a group of conservative pastors over a conference call of the threat that legalized same-sex marriages supposedly pose to clergy. "If the courts rule that people have a civil right not only to be a homosexual but a civil right to have a homosexual marriage," he said, "then a homosexual couple coming to a pastor who believes in biblical marriage who says 'I can't perform that wedding' will now be breaking the law." Huckabee went on to suggest that not performing such weddings may subject clergy to "civil . . . and possible criminal penalties for violating the law."

Huckabee is not a lone voice crying in the wilderness, here. Also last week, a group of pastors gathered at the Texas Capitol to voice their support for H.B. 3567 , titled "Freedom of Religion with Respect to Recognizing or Performing Certain Marriages." Filed by Scott Sanford (R-McKinney), who is also Executive Pastor of Cottonwood Creek Baptist Church in Allen, Texas, the bill is designed to protect members of the clergy from performing marriages and related ceremonies that may violate sincerely held religious beliefs:

Sec. 2.601. RIGHTS OF CERTAIN RELIGIOUS ORGANIZATIONS. A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage, provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage, or treat any marriage as valid for any purpose if the action would cause the organization or individual to violate a sincerely held religious belief.

The Oklahoma legislature passed similar bills last week as well. Nevertheless, commenting on H. B. 3567, Sanford notes, "Pastors and churches should not have to live in fear that the government will force them to perform marriages that violate their sincerely held religious beliefs."

I agree in principle, though not, I want to emphasize, with the subtext. Clergy, when acting specifically in that capacity, shouldn't be compelled by government entities or anyone else to perform marriage or other ceremonies that ostensibly violate their religious beliefs. Thankfully, there's no reason that members of the clergy have to "live in fear" in Texas, Oklahoma, or anywhere else, since no one is seriously suggesting otherwise.

The reason is that members of the clergy aren't generally required to marry anyone, at all. That was the case before same-sex marriage became legal in 37 states and the District of Columbia, and it will remain the case if and when it becomes legal in the rest.

Under the law, clergy certainly have the right to perform marriage ceremonies, and such marriages are considered legally binding so long as they conform to the laws of the state in which they occur. Such laws, of course, vary from state to state, though across the board the bar isn't necessarily set that high. Nevertheless, there's a world of difference between having the right to marry individuals and being compelled to marry them, and clergy generally retain the right to refuse to perform marriages, for numerous and varied reasons. Whatever one thinks about that right, no one is really arguing that it should change.

Opponents of same-sex marriage may counter that claim with examples of, say, magistrates being forced to issue marriage licenses or perform same-sex marriages in states where bans have been overturned, such as in North Carolina But this and similar situations are completely different, and do not, strictly speaking, involve clergy acting in a religious capacity but individuals acting in a civil capacity.

Although historically, conceptually, and in practice, there's obviously overlap between the two (in the United States, for instance, the civil provides an umbrella for the religious), but at the end of the day they're not necessarily the same thing theologically speaking, because how we understand marriage varies in, between, and across religious and non-religious traditions and over time. Nevertheless, so long as marriage grants certain rights and benefits, respecting differences actually entails adopting an expansive understanding of marriage at the state and federal level. An expansive civil understanding, which in many cases now includes same-sex marriages, actually allows for and protects particular religious understandings of marriage, for better or worse. That includes the right of clergy to decide whether or not to perform them, even if that right can and often is used for exclusionary purposes.

As ordained ministers, Huckabee and Sanford certainly know all this. It's hard to see, then, how their "fears" amount to little more than fear-mongering and political posturing.