There have been a lot of suggestions going around that in the wake of the recent Supreme Court decision legalizing same sex marriage nationally, the Catholic Church in the US should announce that priests will no longer perform civil marriages.
In order to be treated as married under the law in the United States, you need to file a witnessed marriage license in your state. The way it worked for us in California was: you go down to your city hall or other government building to pick the license up. The city clerk fills it out but then leaves the final signatures blank. You take the form with you and give it to the priest who is performing your marriage. After the ceremony, the priest signs the form, asserting that he has performed a marriage ceremony for you. It's then signed by husband, wife, and two witnesses and filed with the state. At that point, the man and woman are considered married in the eyes of the law. Obviously, it's not just priests that can process a marriage license for the state. Any kind of religious minister (Christian or non) can, as can "non denominational" ministers of their own religion. You can also have a strictly civil ceremony performed by a city official.
The theory among some Catholic circles seems to be that since the priest is performing a civil marriage by signing the marriage license, and since same sex couples can now get civilly married, if priests continue to sign marriage licenses they will set themselves up to be forced to perform same sex marriages.
Being penalized for not performing same sex marriages is not the first thing that Catholic organizations need to worry about in the wake of the Supreme Court ruling. The first step will be an uptick in suits against Catholic organizations demanding equal treatment of civilly married same sex couples. We've already seen this go down with Catholic-run adoption organizations being shut down in places like Massachusetts and Illinois for not placing children with same sex couples. That will increase. A lot. Expect Catholic organizations to be forced pretty quickly to provide spousal benefits to same sex partners, and expect a lot of Catholic charities that get government funds to help with their work to lose their funding in retaliation for not recognizing same sex marriage.
But I do think that there will come a point, though perhaps not for ten years or so, when penalties start to be imposed on churches that do not endorse same sex marriage. And I don't think that refusing to sign civil marriage certificates will help one bit.
Here's how I think it will go down: The test case will come at St. Wishy-Washy parish, in a state which has a ban on discrimination based on sexual orientation. There's that nice, older, same sex couple that everyone basically knows about, but no one ever says anything rude about -- except that nasty rules-obsessed fellow who objects when Father amends the creed to make it more gender inclusive. Pat is a Eucharistic minister. Sam leads the choir at the 5:30 mass and leads the inquiry sessions at RCIA. They're always there to help out in every big parish activity and everyone likes them. One day, they file paperwork for marriage prep and ask to reserve the church for their wedding and the hall for the reception. Maybe that new secretary accidentally books it and takes a deposit check before realizing. Maybe it's just believable at first that Fr. Trendy would celebrate the ceremony on his own authority. But of course, it's not worth the poor man's retirement to have the bishop find out about this one. He tell them he can't do it and he returns Pat and Sam's check to them.
That's when the lawsuit gets filed. Nothing against Fr. Trendy, of course. They know that he probably would agree with them if he was free to speak his mind. But Christ's message of love will be held captive by the institutional hierarchy until they're attacked the only place they understand: their wallets.
The argument: The church is a public accommodation providing marriage services to its members. There are few members of the parish more active than Pat and Sam. Neither has been married before. The only thing preventing St. Wishy Washy from performing the same service for Pat and Sam which it provides for any other couple that shows up wanting the same ceremony and the same reception in the hall is homophobic prejudice. Their lawyer cites scholarly books claiming that same sex marriages were celebrated in the early church, and brings up the cases of Catholic priests who celebrated weddings for same sex couples more recently. Sure, some of these letter were punished by bigoted bishops, but others were not. It is clearly the case that the Catholics can celebrate same sex marriages, they just choose not to because of bigotry.
The court professes itself unable to say what the nature of a sacrament is, and whether or not what the Church says it does when it marries a couple occurs when the same words are said over a same sex couple, but it is clear to the court that the parish is in the business of providing a certain ceremony to couples in the parish who get married, and that they are only refusing to do this for Pat and Sam because of prejudice. The court thus sides with Pat and Sam and imposes heavy financial damages.
A wave of copy-cat cases follow, and the church is slowly bled of resources. Some cases win, some lose, but in all too many cases the parishes have made clear that they have no real issue with people living in same sex relationships, and thus arguments that their stand is based on conviction fall flat. It is clear that the "we don't marry same sex couples" rule is being imposed based on nothing but dusty bigotry.
There's a group out there which is very, very determined to win cultural and moral legitimacy for homosexual relationships, and to punish those who do not share those beliefs. Currently that group is at the cultural helm. In time, it will crumble and lose its ascendancy simply because it is not compatible with the realities of human nature. However, until that happens, the marriage equality group will not be satisfied by seeing Catholic priests stop signing civil marriage licenses, while continuing to celebrate religious marriage ceremonies only for opposite sex couples. They're not stupid, and it's recognition they want, not getting priests to stop signing a form for straight couples. Nor would "separating" civil and religious marriage be coherent from a Catholic point of view. Indeed, a non-Catholic couple who get married in front of a city clerk are (absent obstacles such as already being married to someone else or being of the same sex) viewed by the Church as being married, since the Church does not recognize there as being two levels of marriage. So the idea of "getting out of the civil marriage business" fails to protect us from the looming threat, while at the same time abandoning our Catholic principles as to the nature of marriage. There is no reason to do it.