Is “Rev.” State Senator Diaz willing to violate his oath of office?

Ruben Diaz was quoted in the Christian Post as saying the following things:

“Pastors and religious leaders are supposed to remember that we are supposed to be Christians before being Democrats or being Republicans. Our responsibility is with Jesus and not with Democratic Party or Republican Party."

"We should always think first as Christians; we should not be concerned if that person is Republican or Democrat. We should be concerned if that person has Christian values and go all the way for that person."

Senator Diaz is in a special position, and is not just a pastor and religious leader, he is also a New York state senator. He took an oath of office that follows this format:

I [state your name] do solemnly swear [or affirm] that I will support the Constitution of the United States, and the Constitution of the State of New York, and I will faithfully discharge the duties of the office of New York State Senator according to the best of my ability [so help me God.]

When he wears his pastor hat, he should certainly feel free to act in accordance wioth the dictates of his personal religious beliefs (within reason, of course), but it may be argued that by putting his own particular and narrow religious views above the broad sweep of the federal and state constitutions when he is wearing his “state senator” hat, Diaz could be violating his oath of office.

That is not to say that his vote against the marriage equality bill or its additional religious protection amendment in and of itself violates the federal or state constitution. Indeed, the New York State Court of Appeals, in its 2006 decision that left the issue of marriage equality to the legislature, Hernandez v Robles (2006 NY Slip Op 05239), 855 NE 2d 1, 7 NY 3d 338, 821 NYS 2d 770 (2006) the New York Court of appeals expressly held that marriage on a gender-neutral basis was not required under the constitution of the State of New York or by the language of the existing statute.

But we have to note for the record, that even before the vote on the marriage equality bill and its additional religious protection amendment, out of state marriages have been understood to be recognized for all purposes under the law of the State of New York, when they are valid in the jurisdiction of origin. This is because they do not violate the express public policy of the State of New York, even if the marriage could not be performed in New York. Since New York had never passed a state-level Defense against Marriage Act, the Appellate Division in the 4th Department confirmed this on February 1, 2008, in Martinez v. County of Monroe (50 A.D.3d 189; 850 N.Y.S.2d 740).

However, it is the “Rev.” State Senator Diaz’s reasoning for his vote that makes me suspect that he would choose his religious bigotry over constitutional requirements.

It is interesting that Diaz ignores the express teachings of the Gospel in placing his religion first, over his constitutional obligations.

Jesus taught a basic separation of Church and State – see the synoptic gospels on “rendering to Caesar.” In all three, at Matthew 22:21, Mark 12:17, and Luke 20:25, we see that when confronted by a question as to the authority for a particular thing, whether it be secular or spiritual, the rules to follow ae those that go with the respective authority.  For religious marriage, by all means there is no problem with looking to one's own sacred scripture or the interpretation of it that one understands, but when dealing with the civil rights of the citizens of the state, one particular religious belief should not be the primary consideration to trump the civil rights of all the citizens.

If rendering to Caesar is not enough of a scriptural admonition, there is also the teaching “no man can serve two masters” that I find in two of the synoptic gospels, at Matthew 6:24 and Luke 16:13. While Jesus is specifically referring to God and money, the spiritual and temporal authority are still intended to be separable - and when there is a conflict, and it is not possible to do justice to the one or the other in a proper circumstance, stepping down from the obligation that cannot be met would be proper.

Even when he identifies himself, the “Rev.” State Senator (or the State Senator “Rev.”), he can’t seem to avoid combining his titles and his allegiances – and yet, he readily and constantly admits putting his “Rev.” hat above his “State Senator” hat. When the time does come that he has a conflict between his oath of office and his religion, he will put his religion first, and he openly admits it in nearly everything he says on the subject. Should such a time come, if he does not resign his office and it can be established conclusively that he violated his oath of office, he could suffer consequences.

Since it would be really hard to prove his motivations if he did not keep yapping about them, Diaz should perhaps take some additional precedent from Jesus himself, and just stop telling everyone that he puts his religion ahead of the constitution and his oath of office. This way we can only guess that he might be violating his oath of office, but we wouldn't actually be able to pin it on him.

See, in particular Matthew 21:23-27.

In this passage, Jesus remains opaque about how he interprets his own source of authority for his teaching in the temple courts. When asked by the religious authorities to explain his authority, Jesus responds with a question about the source of John’s baptism, from divine or human authority – and when they refused to answer that, he also refused to answer them himself. Were Diaz silent about his motives, it would be impossible to prove whether they violate his oath of office.

It is one thing to for him to take his religious beliefs into consideration in deliberating how he should vote on the legislation placed before him – and it is quite another to set aside all other considerations other than his religious belief in formulating that vote.

Diaz can get away with putting his religion first if only he doesn’t advertise his reasoning so obviously. Otherwise he might find himself accused of violating his oath of office, and his own words would be found to incriminate and condemn him.

I am not suggesting that he be removed from office, only that he be somewhat more discreet about his motives and his parody of reasoning.

Of course, he does not even really understand Christian teachings about marriage – most Christianists don’t understand the true meaning of the Good News - they look to the miracles and things that require a suspension of disbelief, and not to the social justice message.

Let’s look briefly at two passages:

In Matthew 19:6, Jesus refers to traditional opposite sex marriage, in which the two become “one flesh.”

But in the one same-sex marriage referred to in the Bible, we get this, in 1 Samuel 18:3 (the link is to the KJV for this passage), that essentially, David and Jonathan are knit together as one soul by their covenant.

One flesh, and one soul - and as if the beating of a single heart. The two relationships are the same sort of thing in bible terms, as far as establishing a family relationship (the connubium aspect, even though a same sex couple’s relationship (or the relationship between opposite sex couples in which one partner is infertile or menopausal) does not naturally produce children?

Senator Diaz should seriously consider looking more carefully at both his beliefs and the obligations he has under the two or more hats he wears.  He does not seem to be able to reconcile his obligations to both his masters, the constitution and his (erroneous) version of God.

Nuances from last night's New York Marriage vote

The "Rev." State Senator Ruben Diaz, Sr.

I don't know how many people noticed it, but the "Rev." State Senator Ruben Diaz, Sr., a pentacostalist minister who admits to having become "one flesh" with a second wife while his first wife is still alive, and admitted in an interview this week that it was wrong to do this, did his best last night to try to derail the well-organized procedure for the marriage vote in the State Senate.

It wasn't just the length of his comments, which went well over the stipulated two minutes. (To be sure, Senator Duane and others also exceeded two minutes in their own comments).  But in his halting English, he kept insisting that he was "laying aside the bill." He became agitated, and repeated several times that he was getting no respect, that he had said to "lay aside the bill."  He said he had a right to "lay aside the bill."

What Diaz did not seem to understand, was:

(a) he was recognized solely for the purpose of explaining his vote on the bill" - and

(b) that there had been a bit of ledgerdemain when the amendment and the bill were first taken up, that precluded Senator Diaz being able to lay the bill aside (i.e., put it off until later).

Last night's women's discussion group at my local LGBT center trooped into The LOFT's library rather than meet.  We were watching the internet livestream feed on a large monitor, hoping it wouldn't crash (it didn't), but wen the Assembly bills were first taken up, we noticed that they were being laid aside.  At first, some thought that meant that the bills were not going to get a vote, but without missing a beat, the president of the Senate continued with the repartee with majority leader skelos about there being a message from the governor at the desk, for each bill.

After having each been laid aside, the bills were then taken up on the basis of the governor's message of necessity - first the amendment, and then the main bill (the reverse of the order they had been taken up in the Assembly).

So, when Diaz tried to lay the bill aside, he couldn't, because the bills had already been laid aside once, and because he had not been recognized for the purpose of laying a bill aside but for explaining his vote.

It turns out that Diaz is as poor in his senate procedural rules as he is on interpreting the bible, or in his command of the English language.  As to the last, I hope he is more proficient in Spanish, even if I don't understand a word of it.

As to his feeling of not being respected, I am sure that he is going to repeat that - he was trying to use every trick he knew to keep the bill from being considered.

Then in the other things he said, he chastized the Republicans for not all marching in lock-step (something he, as a Democrat, has always had a hard time doing).  He complained that the Republicans were responsible for letting the bill go to a vote.

On that last point, I think is was not grounds for complaint, but for admiration, despite the fact that nearly all of them disapproved of the purpose of the bill.

As one of them pointed out, had they not let the bill go to a vote then, it would have come up in a couple of years, and when it came up again, it would not have all the "religious protections" they were able to build into it.

Before the final language came out yesterday, I was quite frankly worried that the poison pill provisions were going to be wayy more onorous than they were.  I grant that the in terrorem clause (the one that invalidates the whole law in the event one provision is set aside by a court) was way over the top, but not totally unexpected.

Essentially, on the issue of marriage, the proponents and opponents are so polarized, that no one on either side trusts the motivations of the "other side."  We are fond of demonizing each other. 

Diaz showed that he was possibly the only member of the Senate not willing to lay that aside in the chamber and move forward.

Unlike the advocates on both sides, like me, who operate outside the chamber, the senators have the responsibility of actually making the law, despite their sometimes almost insurmountable differences.

Some senators, mostly Democrats, were justly pushing for the extension of the connubium of marriage on a gender neutral basis.

Other Senators, mostly Republicans, were justly (and with the bill safely passed, I can state this) trying to protect their religious institutions from what they perceived as an assault that goes against their most deeply-held religious views.

Frankly, I do believe the Republican majority is well aware of the fact that 2012 may be the last time they have a majority in the near future, so they set out to get the best deal they could get, to protect the mostly religion-based interests of the opponents,knowing that in 2013, a democratic majority senate could pass marriage without all the bells and whistles that were written into this bill.

I don't really think the bells and whistles were wholly necessary, though I can understand the fears that led to their adoption.

While I really do see the concerns of the opponents to be rooted in bigotry and prejudice, I can admire the way a few of the Republicans were able to negotiate a deal with the Governor to work a way to get the bill passed in a way that could reasonably protect the religious prejudice without harming the legal rights of the proponents.  I also have to admire the willingness of  most of the 28 Republicans who voted no on the main bill, to allow it to go to a vote.  I only wish that they would have used the amendment that was voted on first, to signal who they were - that they were among the at least 17 in the majority conference that were needed to let the bill get the vote.

And that is the truth.  If there were not 17 members of the majority who understood that there were enough votes for the bill to pass, and were at least comfortable with, if not fully satisfied by the "religious protections" that had been negotiated (what I still tend to call a poison pill even though it did not turn out to be fatal"), there would have been no vote last night.

Last night's vote was the result of the democratic process at work - not a perfect bill for either side, but one that gave each the things that they needed the most.

A victory for "our side," and, though they may not want to admit it openly, a victory for "them," too.

Diaz, though, made it clear that he was not part of any solution, only part of the problem.

Like Archbishop Dolan, he will not acknowledge the victory that the opponents won on religious protections.

State Senator Greg Ball

Senator Greg Ball wanted more of a poison pill.  And to be honest, I don't know if he was willing to let it go to a vote as it was.  His principal role in the past couple of days was to signal to me that the poison pill provisions were not going to be fatal, when he announced his NO vote in advance. 

Senator Tom Duane, who in the moment of victory took the time to call for passage of GENDA next, was gracious - he chivalrously referred to all of his colleagues as heroes for their work in the process, even those who voted agaisnt the bill, even Diaz.

So, the marriage canary tells me that the only hope for GENDA next year would be if there is something the Republicans feel a need to do to protect some legitimate constituency of theirs.  Sadly, the way the opposition to GENDA is shaping up, I don't think there is anything that we can offer in compromise.  All we want is the same protection that has been provided to other minorities under the hate crimes and human rights laws.

The trans community has to organize and lead the charge for GENDA.  I am hopeful that we will not be forgotten by the marriage people, but many of them will be moving on to other states and to federal issues,  Some, however, will do everything they can to help us out - but we have to find a way to take the lead.

Separating Christ from Caesar: An Open Letter to Floyd Flake, Ruben Diaz, Sr., and Malcolm Smith

Monday, April 27, 2009

Reverend Pastor Floyd H. Flake, D. Min.
The Greater Allen A.M.E. Cathedral of New York
110-31 Merrick Boulevard
Jamaica, New York 11433

Hon. "Reverend" State Senator Ruben Diaz, Sr.
307 Legislative Office Building
Albany, New York 12247

Hon. State Senate Majority Leader Malcolm Smith
250 Broadway, Suite 1930
New York, NY 10007


Re: Separating Christ from Caesar

Recently I published an open letter in my blog addressed to New York’s new Roman Catholic Archbishop Timothy Dolan, in which I was critical of some misstatements he made in an interview made just prior to his installation.

On this eve of tomorrow’s Equality and Justice Day in New York, I think it’s appropriate to respond to the report in the April 26, 2009 Sunday New York Times about Reverend Floyd Flake’s negative preaching from the pulpit about the marriage issue (“Marriage Bill Poses A Test Of Loyalties: Church vs. State” by Jeremy W. Peters), and “Reverend” State Senator Ruben Diaz Sr.’s macho negative fixation on this issue that spills over from his church to his politics. I am also writing to commend State Senate Majority Leader Malcolm Smith for his understanding of the line between his commitment to equal rights for all, and his personal religious beliefs.

I would only wish that Reverend Floyd Flake and “Reverend” State Senator Diaz would be able to learn to separate their religious beliefs from their understanding of equal rights.

Unlike the hierarchy of the Roman Catholic Church, which teaches that only the Church hierarchy has the right to interpret sacred scripture for the benefit of Roman Catholics, it has always been a cardinal rule of Protestants that each person can understand and interpret scripture on their own, with the grace of God. And various Protestant traditions do exactly that, disagreeing on many different doctrinal issues. So, unlike the situation with Archbishop Dolan, I don’t need to go so far as to consider Reverend Flake or “Reverend” State Senator Diaz to be apostates or heretics for having biblical interpretations on the issue of marriage rights that diverge from mine. All I need do is disagree with their interpretation of Scripture.

Among the founding principles of the United States Constitution and Bill of Rights are the two provisions in the First Amendment that deal, first with the relationship between the government and religion, and then with the rights of individual people. The first, called the “establishment clause,” prohibits the government from imposing particular religious beliefs on the people. The second, called the “free exercise clause” guarantees every American the right to freely exercise their own religious beliefs.

That free exercise clause is not totally untrammeled, however. Just because there are verses in sacred scripture that authorize believers to stone adulterers or gays to death, does not mean that the “free exercise clause” provides for the right to have such public stonings.

I am familiar with this particular aspect of the free exercise clause, because in my law practice some years ago, I was with a firm that represented a local hospital, and we had several “Jehovah Witness Baby Transfusion” cases. Jehovah Witnesses believe that a biblical verse that prohibits the eating of blood also forbids blood transfusions. Adults are free to refuse life-saving medical treatment for themselves on a religious basis, but there is a conflict when it comes to the rights of their infant children, in whom the state has a legitimate interest. Thus, in cases where an infant is born with a serious bilirubin issue that requires a blood transfusion for the child to live, and the parents cannot consent because of their religion, the physician and the hospital must obtain an immediate court order authorizing the transfusion.

The fact that the Roman Catholic Church hierarchy, Reverend Flake, “Reverend” State Senator Diaz and other religious leaders interpret the Bible in such a way so as to see a prohibition of same sex marriage, does not mean that the government should impose their particular religious interpretation on everyone who does not share that belief.

First, from a purely religious point of view, there is the same sex marriage of David and Jonathan that is found in 1 Samuel 18, confirmed in the latter part of the chapter as an actual marriage when King Saul declares that when David also married Saul’s daughter Michal, David became Saul’s son-in-law a second time. (Look to Darby or ASV for this translation of original Aramaic and Greek sources – St. Jerome fudged this in the Latin Vulgate, leading Douay-Rheims, King James and other Vulgate-based translations to have an error in this.)

Reverend Flake and “Reverend” State Senator Diaz can choose to interpret scripture differently – but they cannot claim that their interpretation is any better than Darby’s, or mine, or that of some ministers of the United Church of Christ, Quakers or Unitarians and others who wish to sacramentally recognize same sex marriages in the same way they recognize opposite-sex unions. This willingness to endorse marriage equality by some Christians and members of other religions is a free exercise issue that is not like stonings, baby blood transfusions or even handling poisonous snakes.

Reverend Flake, especially, should be mindful of the preachings of many earnest white Protestant ministers in the 19th century who railed from the pulpit that the involuntary servitude of African Americans was biblically justified, referring to the slaves as “Children of Ham” and referring to the Genesis 9:20-27 story in which Ham’s descendants (Canaan and his children) are punished by God – to be the servants of the children of Shem and Japeth.

Yes, those white ministers of religion believed that Christianity endorses slavery - and it was not limited to the teaching of St. Paul abjuring slaves to be obedient to their masters (Ephesians 6:5, Titus 2:9).

In the 1830’s and 1840’s and beyond, many ministers of religion opposed basic human rights for women, particularly married women, because altering the laws relating to marriage by giving women control over their own inheritances, or wages, or allowing women to vote, would destroy the sacred institution of marriage. After all, just as slaves were told by St. Paul to be obedient to their masters (see Ephesians and Titus citations above), wives were told to be obedient to their husbands (Titus 2:5).

The Times article closes with the following paragraph:

Ultimately, Mr. Flake said, the decision to support same-sex marriage and the consequences that decision may produce belong to Mr. Smith. “I told him he has to live with his conscience,” Mr. Flake said.

I really think that Reverend Flake should consider his own advice, and learn from his protégé State Senate Majority Leader Smith – while Reverend Flake has every right to interpret sacred scripture in the way that he does, and to decide to not perform a same-sex wedding in his church, he must live with his own conscience over his preaching from the pulpit that his belief must be imposed legally on everyone who doesn’t agree with his interpretation of the Bible, or, for that matter, whose religion or non-religion doesn’t recognize the Bible as the source of their beliefs.

Reverend Flake and “Reverend” State Senator Diaz really should be American enough to be able to separate their own personal religious beliefs from their political views.

After all, if they are not willing to speak up in favor of oppressed minorities like LGBT people, who will speak up for them when right wing Christianists and neo-cons seek to roll back the interpretation of the 14th Amendment to the 1870’s when the Supreme Court held it applied only to the federal government and not to the states. If equal rights for all are not cherished on the secular level in support of the bedrock principles under which the nation was founded and as they have evolved to improve over the years, how long will it be before African-American men are once again counted for census purposes as 3/5ths of a man, and women of any race are not counted at all. How long will it be before women are denied control over their own reproductive rights, and how soon will secular marriage be restored to the sort of thing it was in America before 1848 – a union in which the two become one, and that one is the husband – relegating the wife to the equivalent of the civil death imposed on convicted felons with life terms.

It is one thing to teach the members of one’s own congregation your interpretation of scripture for their religious education, and quite another when you use the pulpit to preach politically that your interpretation of a religious writing must serve as the source for the law that applies to everyone.

I am joining with over 2,000 New Yorkers tomorrow in Albany – our voices will be heard in favor of passage of the Dignity for All Students Act (DASA), the Gender Expression Non-Discrimination Act (GENDA), and the Marriage Equality bill. I would like nothing better than for Reverend Flake and “Reverend” State Senator Diaz to have a revelation to see the light and support civil rights under the secular law, even if they continue to interpret scripture the way they do. I invite both of you to join with us tomorrow.

In peace and with a deep regard to both human rights, I remain,

Sincerely,

Joann Marie Prinzivalli
Serva Servarum Deae