Implications of SCOTUS in Obergefell for the policies of Bahai institutions

Implications of the ruling of the US Supreme Court (SCOTUS)
in Obergefell versus Hodges (same-sex marriages),
for the policies of Bahai institutions. (updated July 1, 2015, see last item)

This thread, on an email list, began with a suggestion that Bahais should discuss how same-sex marriage can be accommodated within the Baha’i community. The writer posited that Baha’u’llah’s reluctance to discuss the problem of “youths” in the Kitab-e Aqdas cannot be stretched to mandate a ban on same-sex marriage. Bahais can (and do) object to the sexual exploitation of minors, but need not regard it as immoral for two loving adults to enter into a committed relationship. Then he asked whether Baha’i scholars and intellectuals could work for change.

Please note that in what follows I do not say that Bahai (or other) institutions are going to be forced to provide same-sex wedding ceremonies. Scaremongering of that type has been going on, in forums where the paranoid style of politics has become a form of entertainment, but I am no part of it.

I replied to the original suggestions (June 28, 2015):

I think the Bahai communities in countries where same sex marriage is legal, should recognize those marriages simply because they are legal.

Obedience to the law and government, for Bahais, is not without limits. There are cases in which Bahais should refuse to bend to government decrees that violate their consciences, on an essential point. But I do not think that our right as a religious community to discriminate against same-sex couples is such an essential point of the Bahai teachings that we should be prepared to ignore properly made state laws.

Accepting the government’s (Supreme Court’s) decision in this case would mean ending two present policies: that individuals in same-sex marriages cannot enroll in the Bahai community, and that enrolled Bahais who enter a same-sex marriage lose their voting rights. These are administrative measures, susceptible to change.

In addition to the points you made [regarding the “subject of boys,”] and the principles of obedience to government, and that what is not forbidden is permitted, there is a tablet of Abdu’l-Baha translated on my blog which says that the forbidden degrees of affinity for marriage are to be decided by the National Spiritual Assemblies:

“In short, whatever ruling the House of Justice makes in this respect [the forbidden degrees of affinity], is the decisive decree, it is God́s sharp sword. No one may transgress that limit. If you consider, it will be apparent how much this rule (that is, referring cultural laws to the House of Justice) is consistent with wisdom. For whenever a difficulty may arise in relation to the local context of an issue, since the House of Justice delivered the previous ruling, the secondary House of Justice can issue a new national ruling on the national case and instance, in the light of local contingencies. ‘Consultation with all, wards off danger.’ This is because the House of Justice is entitled to abrogate what it itself has decided.”

What I would suggest therefore is that the National Spiritual Assemblies should be empowered to make rules and procedures appropriate to their countries, taking into consideration all of the Bahai teachings, including the respect that we owe to government, and in every case ensuring that employment policies are not discriminatory, and that the NSA and its agencies are not at risk of causing a scandal or exposed to prosecution on this point. And of course they are not to allow themselves to become associated with any partisan group, in fact or in the public mind. At the moment, a decision to ignore the SCOTUS decision would put the Bahais shoulder to shoulder with Rick Santorum, so a little discretion is warranted.

Among the options open to NSAs would be
(1) to deal with same sex marriage by analogy with polygamous marriage: you can bring it with you into the community, but not have a same sex marriage yourself, or
(2) state that the marriage laws (or a subgroup of them) are matters of personal conscience, where behaviour does not harm others, breach the law, or cause a scandal that reflects on the name of the community. However no provisions have been made for matters such as dowry that incorporate the assumption that the couple are a man and a woman, therefore a Bahai ceremony is not possible, or
(3) make the necessary rulings so that a Bahai ceremony is possible.

I do not think that Bahai scholars and intellectuals should or need to take any leading role in this. Bahai parents who have, or suspect they may have, a homosexual child will inevitably take the lead, for the lioness defending her cubs is fiercer than the grown cub will ever be. And the children should also be the focus of our attention: whatever solutions are found they must be judged not by doctrinal purity or political correctness, or intellectual cleverness, but by how much they actually ameliorate the anguish of children who find they are homosexual, in a community that treats that as a handicap and a distortion of human nature.

~ sen

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Another participant brought up the “slippery slope” argument, asking what ‘our’ position would be if the next group coming out of the closet want to practice incest. I take it that ‘our’ here refers to rational discourse in society in general.

There is also “raison d’etat.” The state can ban polygamy because the state accords benefits to married couples, and it has an interest in not spreading that support too broadly. The state accords benefits to marriage because of the role of marriage in producing virtuous and capable citizens, and because the state benefits from the duty of primary care that each of the partners assumes for the other and for any children. But most of the benefits the state gets out of this bargain are achieved from a monogamous marriage. Numbers 2 through to 72 don’t add much, from the state’s point of view. So the state can ban polygamy without intending to support the moral views of any group of citizens.

The same is true of marriage within degrees of consanguinity that raise the likelihood of handicaps in the children. The state needs most of its citizens to be virtuous AND capable. This does not apply to degrees of affinity by marriage: in Scotland for example a man may marry his mother in law but (illogically) only if his wife and father in law are deceased. I think it was also in Scotland that I heard of a court allowing a civil union between two elderly brothers.

The important thing is that discourse in the sphere of politics and law cannot be based on the moral views of any one group, it has to be rationally based and universal, and the laws that are made must have the object of promoting the ends for which the state was established (primarily, security and prosperity) and increasing the capacities it needs (primarily, wealth and people).

~ Sen

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Another participant felt that the ruling would have no effect for the Bahais, asking rhetorically whether Baha’i law should allow the drinking of alcohol, where it is legal.

I replied:

Civil law does not require the drinking of alcohol, it merely allows it. But the Supreme court’s decision has the effect of forbidding the individual states from disallowing same-sex marriages, or refusing to recognise those made in other states. If the decision stands, as I expect it will, its implications for businesses (as regards their customers), for employers and for civil society bodies will be worked out gradually. The trend will be that they too are forbidden from discriminating against same-sex couples. One relevant precedent will be the 1983 Bob Jones decision, in which the court allowed the IRS to withdraw the tax-exempt status of Bob Jones University because its practices were contrary to a compelling government public policy, i.e., eradicating racial discrimination.

The states have always been primarily responsible for matters of personal status, and the Supreme Court could have chosen not to intervene. Clearly they felt that there was a compelling public (federal) interest in forbidding states from discriminating in this respect. So when courts at all levels deal with future cases in which religious bodies claim to have a religious exemption allowing them to discriminate, the burden of proof will be on the plaintiff.

However, it could also be that Congress reacts to this ruling by providing specific exemptions. That has been the pattern in recent decades: religious bodies are given exemptions from generally applicable legal requirements more easily than was the case 30 years ago. The Religious Freedom Restoration Act (1993) and its state-level counterparts is a case in point. I’m not a congress-watcher, but I would think that new legislation to allow discrimination by religious bodies is quite likely. But in the 1993 Act, the requirement of strict scrutiny is waived if the burden imposed on the religious group is necessary for the furtherance of a compelling government interest. Federal government’s interest in ending discrimination is not going to go away. If a new Act was framed more broadly than the 1993 one, it would risk making every individual a law to him or her self, since everyone can claim that a legal requirement is contrary to his conscience.

My fallible forecast is that the Bahai institutions will deal with this as they dealt with the military draft, not by defying the law (as the Jehovah’s Witnesses did) but by using whatever exemptions are available and negotiating an understanding, without elevating the individual conscience above the will of society.

A letter on behalf of Shoghi Effendi endorses such a pragmatic approach to conscription for military service.

“Our position as Baha’ís is not that we won’t obey our Government or support the country if attacked, it is that we do not believe in, or wish to part in, killing our fellow-men. We are not conscientious objectors at all, we will serve, but wish, as there is a provision in the law in the U.S.A. covering our attitude, to be classified as non-combatants. …” (On behalf of Shoghi Effendi to an individual believer, July 15, 1952)

But in some other matters, the state and its laws could be defied:

“In matters, however, that vitally affect the integrity and honour of the Faith of Baha’u’llah, and are tantamount to a recantation of their faith and repudiation of their innermost belief, they are convinced, and are unhesitatingly prepared to vindicate by their life-blood the sincerity of their conviction, that no power on earth, neither the arts of the most insidious adversary nor the bloody weapons of the most tyrannical oppressor, can ever succeed in extorting from them a word or deed that might tend to stifle the voice of their conscience or tarnish the purity of their faith..” (Shoghi Effendi, Baha’i Administration, p. 162)

Is it a vital matter of honour for the Faith, that we must refuse to allow people in same-sex marriages to enrol in the community? I think that’s almost a rhetorical question. Pragmatism will prevail. But others think other-wise.

Sen
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I was asked to provide chapter and verse for my statement that the current Bahai administrative policy is that individuals in same-sex marriages cannot enroll in the Bahai community.

I replied:

Sorry, I should have footnoted that. The policy has evolved in several steps. A letter on behalf of the UHJ in 1990 said:

As you know, Baha’u’llah has clearly forbidden the expression of sexual love between individuals of the same sex. However, the doors are open for all of humanity to enter the Cause of God, irrespective of their present circumstance; this invitation applies to homosexuals as well as to any others who are engaged in practices contrary to the Baha’i teachings. Associated with this invitation is the expectation that all believers will make a sincere and persistent effort to eradicate those aspects of their conduct which are not in conformity with Divine Law. (on behalf of the Universal House of Justice to an individual, 3 July 1990)

The implication of this was that such people would eventually be expected to divorce their partner. But in 1999 they write:

.. if persons involved in homosexual relationships express an interest in the Faith, they should not be instructed by Baha’i institutions to separate so that they may enrol in the Baha’i community, for this action by any institution may conflict with civil law. The Baha’i position should be patiently explained to such persons, who should also be given to understand that although in their hearts they may accept Baha’u’llah, they cannot join the Baha’i community in the current condition of their relationship. They will then be free to draw their own conclusions and act accordingly. Within this context, **the question you pose about the possibility of the removal of administrative rights should, therefore, not arise.**
(From a letter written on behalf of the Universal House of Justice to an individual 5 March 1999)

Note here that the 1990 policy has been adjusted in the light of civil law. The 1999 letter talks about homosexual relationships, not specifying whether this includes homosexual marriage. A clarification from the Universal House of Justice’s secretariat shows that the same exclusion applies to those who are in same-sex marriages:

In your email dated 14 March 1999, you ask whether a homosexual who is in a committed same sex relationship, or who is involved in a same sex marriage, may be permitted to stay in such a relationship upon becoming a Baha’i. The answer, as indicated in our previous letter to you of 5 March 1999, is that such persons cannot be accepted as members of the Baha’i community while maintaining such a relationship. However, if individuals involved in a homosexual relationship have a desire to become Baha’i, they should be patiently and lovingly informed of the position of the Faith on homosexuality, but they should NOT be instructed by Baha’i teachers or by Baha’i institutions to separate in order to become Baha’i; rather, they should be left free to decide for themselves whether or not they wish to change their way of life and apply for Baha’i membership. In other words: armed with knowledge of the Baha’i position as explained to them, they can exercise their own judgment as to what to chose to do. This is the meaning of our previous statement that, ‘They will be free to draw their own conclusions and act accordingly.’

It is only proper that the response of the Bahá’ís to such persons should be as described here: on the one hand, the law of the Faith must be upheld; on the other, our community must be open to those who choose to abide by that law. By affirming through word and deed their determination to follow the way of Baha’u’llah, they must unhesitatingly be accorded the privileges of Baha’i membership. The same approach applies with regard to those persons who wish to join the Faith but are known to have a problem with drinking, drug abuse, adultery, etc.” (From a letter written on behalf of the Universal House of Justice to an individual 13 April 1999 in response to a request for clarification about the letter dated 5 March 1999)

So far as I know, that’s current policy.
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Added 1 July, 2015, continuing the same thread.

I would expect accommodation to be another area where case law, and possibly new legislation, will have to work out the balance between the rights of the religious communities to govern themselves, and the (federal) state’s interest in ending discrimination. Because Bahais are very unlikely to make a discrimination complaint against a Bahai institution that offers married accommodation, such as a summer-school, we are not going to see a Bahai institution in court making the case law. But our institutions are obliged to follow the law by Bahai teachings, so just keeping a low profile and ignoring the Court’s decision, and how it works out in court decisions and legislation to come, is not an option. It might go a long way, if summer schools and the like were to minimise their own offering of married accommodation and rely more on third party providers who would not be required to discriminate.

With respect to employment, if certain paid positions, from office staff and summer-school custodian to national secretary, are reserved for Bahais “in good standing,” and the policy is that Bahais who enter same-sex marriage lose their voting rights, this is employment discrimination. Once again, we are not likely to find ourselves in court defending our right to discriminate, but we do need to check policies and follow the cases as the SCOTUS decision trickles down. The solution might be to separate the standard for employability from Bahai status for administrative purposes. That distinction is desirable in any case, since not every Bahai with voting rights would be suitable for a public role. Why not specify that a Bahai without voting rights may be employable, depending entirely on their match with the requirements of the position? And vice versa of course, a Bahai with voting rights may not be considered employable in a particular role, in order to ensure the best possible public presentation of the Bahai community.

An intriguing possibility is that the Bahais could rely on the Hosanna-Tabor case to claim that, as a religious organisation, we are entitled to an exemption from employment discrimination laws. However that case hinged on the Supreme Court’s finding that the plaintiff was a “minister of religion.” The establishment clause that prevents government appointing such ministers, and the free exercise of religion clause, in the First Amendment give religious organisations an “out” providing that they define the relevant position, in good faith, as being or equivalent to the role of a minister of religion. But the Bahai Faith has no clergy. Could we use this “out” in good faith?

As for charitable organisation status, I think there will have to be some significant case law, and time for corrective legislation, before the IRS will set across-the-board standards that an organisation must meet to retain its tax exemption. Put that one on the watch list.

Where the shoe will pinch, I think, is the PR effects of refusing to enroll people who already have a same-sex marriage. Someone who is sincerely trying to enroll is not likely to use his or her exclusion to harm the public image of the community (my exclusion being a case in point), but most of the exclusions will become known, and will be used by people with various agendas to undermine the Bahai community’s reputation (as has happened in my case). When public figures hear howls of outrage if they are associated with a Bahai activity, we will drop from the status of a partner in civil society to that of a protected but idiosyncratic minority group. That would impact on the core purpose of the Bahai community, whereas losing our tax-exempt status, or adjusting the accommodation at summer-schools, or changing our employment policies, would not.

~ sen

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