What a state might do is condition the power to solemnize marriages on the cleric’s agreement not to discriminate on the basis of race, ethnicity, gender, religion, or sexual orientation in exercising the authority. This strikes me as theoretically possible but poltiically very unlikely, and problematic under other constitutional theories such as freedom of association amd church autonomy (which the Court has never bothered to reconcile with Smith). Really, does someone out there think it likely that the federal courts would uphold a state’s power to make a Catholic priest perform a Catholic wedding for nonCatholics, even if the statute is religiously neutral and generally appilcable?

But even if other protective theories failed, it would always be open to a church to opt not to have its clerics exercise the state’s power of solemnization. In case of Latter-day Saints, that would mean we’d all have to have a quickie civil marriage by the mayor or a judge or that Elvis guy in Vegas before heading off to the temple for what to us would be the main event, shorn of *legal* but not theological significance. As others have observed before, this is the situation for Saints already in many other countries.

There is bad discrimination and good discrimination. There is bad judgment and good judgment. Sometimes I wonder if we have found it politically expedient to forget those basic truths.

I believe that if marriage is defined “in terms of personal affection and commitment rather than in terms of social duties and gender relationships”, it will be more like to “end in painful suffering half the time”. The two are related – just not necessarily with a straight line.

You make good points. I shouldn’t look at it in terms of what affects my own marriage, because you’re right, what Mr. and Mrs. Smith do with their marriage also won’t affect my own.

However, my point about divorce being far more destructive on the social institution still stands. If we show that marriage doesn’t end in painful suffering half the time, more people will be more willing to go through it than not, I think.

I’m a Mormon too. And yes, our church is probably an exception to the religious conservative rule in that they really do press hard for the sanctity of marriage within the heterosexual world.

I’m just saying, church members spent $20 million dollars on something that really doesn’t threaten traditional marriage all that much. I wonder how many marriages could be saved if that $20 million were spent on saving failing marriages. Were any ACTUAL marriages saved by the $20 million spent on Prop 8? Were any actual marriages even threatened by gay marriage? I know my own marriage is in no way shape or form threatened by gay marriage. I know my own family is in no way shape or form threatened by gay marriage. But the threat of divorce IS there. Divorce CAN actually destroy my marriage and my family (it did my parents’ marriage).

And I think you’re right that Smith and Lukumi sufficiently eviscerate the Free Exercise clause, that Congress could pass a law requiring churches to perform gay marriages, and it would pass muster. It’s Lukumi that says:

“A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

And remember, Lukimi had no dissents (!).

It did have a wacky web of concurrences, though. And who were the two justices who took a stand against the limits on free exercise? Justice Blackmun and Justice Souter, that’s who.

Justice Scalia? He was the author of the Smith opinion. :)

Dan: Perhaps it might be worthwhile to re-read “The Family:A Proclamation to the World” before painting the LDS Church and all religions with a broad stroke of condemnation over gay marriage. Moreover, I would submit to you that there are several other world religions who put an equally strong focus on preserving marriage and family.

This, I think, is absolutely right. The only difference I think that I have with Kaimi is that I think that In re Marriage Cases strengthens the claims of discrimination laws in cases like Benitez. I am also probably less sympathetic to a dignitary understanding of discrimination law than is Kaimi.