The Same Sex Marriage case is often defended on the following grounds.
1. Legalizing behavior that is religiously forbidden doesn't imply that such behavior is beyond religious reproach. It simply implies that such behavior is beyond secular reproach. Though such behavior violates religious values we must not bring such concerns to the public arena as it violates the separation of Church and State.
2. Same Sex Marriage provides the best of both worlds. It protects the civil rights of same sex couples by legalizing same sex marriage. It also protects the religious right of clergy by respecting their right to refuse officiation or validation of same sex marriage ceremonies.
Separation of Church and State
I am in total agreement with the Church and State separation because it strengthens the independence and viability of all religions. I cherish religious freedom and never want to see the State involve itself in religious affairs or prosecute crimes of a religious nature.
The separation provides clear lines of demarcation. The State is guardian of societal, secular values and religious bodies are guardians of religious values. The State has no jurisdiction over religious values and should not police them.
To this end I was glad to see many States reverse old standing laws that prohibited sodomy and other behaviors that are objectionable only from the standpoint of religious thought. The State should never have established these laws and reversing them was consistent with both the letter and spirit of the Church and State separation.
However, legislation of same sex marriage is an entirely different matter. To equate the lifting of a ban against such behavior with legal endorsement of such behavior is to my way of thinking a faulty proposition. This legislation does not separate Church from State, on the contrary, it introduces the State into religious territory by instituting a quasi-religious rite by dint of secular law.
Marriage is a religious matter and for religious reasons has never been offered to same sex couples. The State ventures onto religious grounds when it sanctions, at least from a secular point of view, a matter that is religiously forbidden.
This doesn't violate the letter of the Church and State separation but it is inconsistent with its spirit. Religious independence and viability is undermined when a State sanctions the rejection of religious teaching in favor of alternative secular institutions. While this legislation is not illegal it raises a troubling specter and should be opposed.
The Right of Refusal
Why does any of this matter if the State ensures the clergy's right to refuse such marriages on religious grounds? Is the integrity of the Separation not preserved by the State’s careful avoidance of dictating religious standards?
For the moment the answer is yes but I am concerned that this road will lead to an inevitable clash of values. Allow me to explain.
The Clash of Freedoms
In the belief that all men are endowed with inalienable rights and in a commitment to protect these rights from abuse, our laws entitle us to two distinct freedoms. The freedom to practice religion according to the dictates of our respective religions and the freedom to pursue happiness as long as it does not impinge on the rights of others.
This second freedom is widely interpreted to include the right to an alternative lifestyle. An attempt is now being made to widen this interpretation to include entitlement not only to an alternative lifestyle but also to alternative marriage. If this wider interpretation is accepted then opposition to such marriage should, by definition, be illegal.
This raises a serious dilemma. If same sex marriage is deemed an inalienable right then refusal to recognize such marriage is discriminatory and must be outlawed. Yet applying this law to religious authorities, forcing clergy to recognize same sex marriage, would impinge on religious freedom.
Both rights are seen as moral imperatives yet they travel in opposite directions. The road we travel is too narrow to accommodate both, making this legislation a virtual traffic accident waiting to happen. A clash of rights seems inevitable.
A rabbi who won't sanction same sex marriage and a Synagogue that doesn't offer family membership to a same sex couple discriminate against the same sex community. If same sex marriage is deemed an inalienable right then such discrimination should be outlawed. Yet that would impinge on another inalienable right, namely religious freedom.
For the moment we have resolved the problem by ignoring it and looking the other way. We'll have our cake and we'll eat it too. Same sex marriages will be legalized yet religious authorities will not be bound by this law. It may work for the present but if we should follow this road to its logical conclusion we will eventually have to confront its absurdity.
At some point a same sex couple will file suit in the courts claiming discrimination by a major segment of the population, namely the religious community, and the claim will be logically consistent. At that time we will have to confront the incongruity of this position and deal with it.
Legislation of same sex marriage is inconsistent with the spirit of the Church and State separation. The Separation is for the moment respected through the protection of religious freedom. However, the logic that supports this protection is ridiculously incongruent and will need to be confronted sooner or later.