A recent thread of comments on this blog has touched upon the potential legal implications of the ELCA pro-gay CWA09 resolutions on individual congregations that refuse to call or hire gay clergy or to perform any type of blessing service on same gendered partners. For my part, I have insisted that CWA09 resolutions are entirely irrelevant to the legal rights and responsibilities of congregations, especially in light of the long standing constitutional and statutory doctrine of the “ministerial exception”. Succinctly, this doctrine prevents courts from interfering in the hiring and employment practices of churches even when the practice would constitute illegal discrimination in the secular realm. CWA09 will certainly not change or soften that doctrine. Neither the courts nor ELCA synods will force local congregations to hire gay clergy over the objections of the local congregation. Any suggestion to the contrary is either misinformed or demagoguery.
On the other hand, when a congregation enters into the secular realm as a landlord or accepts governmental funding for particular programs, then the situation can become blurry. Without exploring the nuances of such instances, the point remains, CWA09 resolutions didn’t change the law. The legal rights and responsibilities of local congregations toward gay and lesbian persons will be determined by the courts according to their policies, procedures, and precedents, and the resolutions of CWA09 will not control the courts nor lessen the legal prerogatives of individual congregations.
Switching to another legal matter, marriage equality for gays and lesbians, the court decision last week that overturned Prop 8 in California was the subject of a couple of the Sunday morning network news talk shows. Since I’m usually busy on Sunday mornings, like many of you, I seldom watch these programs live. Thus, I’ll imbed a couple of videos of a pair of key discussions involving the two attorneys who successfully led the Prop 8 challenge. In case you hadn’t heard, these two high profile attorneys were the same two who opposed each other in the Supreme Court decision in 2000 that stopped the Florida recount thus allowing George Bush to become President. While many conservatives might be unimpressed by the involvement of Democratic attorney David Boies, his teamwork with well-known Republican attorney Ted Olson has been noteworthy. Each of these esteemed lawyers spoke yesterday.
First, I offer Ted Olson’s interview with Fox News’ Chris Wallace:
Second, I offer the debate between David Boies and Tony Perkins, the conservative leader of the Family Research Council on CBS’ Face the Nation.