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After Secular Law$

Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo

Print publication date: 2011

Print ISBN-13: 9780804775366

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804775366.001.0001

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The Peculiar Stake U.S. Protestants Have in the Question of State Recognition of Same-Sex Marriages

The Peculiar Stake U.S. Protestants Have in the Question of State Recognition of Same-Sex Marriages

Chapter:
(p.302) Chapter Fifteen The Peculiar Stake U.S. Protestants Have in the Question of State Recognition of Same-Sex Marriages
Source:
After Secular Law
Author(s):

Mary Anne Case

Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804775366.003.0016

Abstract and Keywords

This chapter argues that opposition to legal recognition of same-sex marriage on the part of evangelical Protestant religious conservatives who claim such recognition would undercut their own marriages can best be understood as the result of Protestant dependence on the state to enforce its legal traditions. It contrasts this concern with the practices of observant Jews and Roman Catholics, who clearly understand that civil marriage and marriage within their faith are not the same. Further, it argues that most American Protestants sacralize the state in a most unexpected way, incorporating it religiously by assigning it governance tasks essential to the maintenance of religious goals.

Keywords:   same-sex marriage, evangelical Protestant, religious conservatives, American Protestants

Of all the objections raised to state recognition of same-sex marriage in the United States, the one that, judging from the public debate, seems to make the least sense to those commentators who do not share it, the one that seems to attract the most ridicule in cartoons, blog posts, and editorial columns, is the objection, often raised by evangelical Protestants, that their own marriages would be threatened by state recognition of same-sex marriage. Cartoonists are confident of provoking a laugh when they depict, for example, a small frame in which “two women are wed in Massachusetts” in the upper left-hand corner of a much larger one in which “meanwhile, somewhere in Kansas,” a trembling, overweight, middle-aged man is shown saying to a wife weighed down by housework, “You feel that? The foundation of our marriage is shaking.”1

In this chapter, I will explain how, when voiced by American Protestants, the objection that their own marriages will be affected by state laws concerning same-sex marriage can be understood as the result of Protestants in the United States having essentially abdicated the definition of marriage, its formation, and above all its dissolution to the state. There is simply very little air between marriage as the state defines it and marriage as Protestants can define it to their flock. State-sponsored marriage is thus for Protestants in this country today much like state-sponsored public schools were for Protestants in the twentieth century; having previously been accustomed to co-opt the institution for sectarian ends, they felt an understandable although not justifiable sense of loss and grievance when their control was challenged and taken away and they had little by way of ready-made institutional structures of their own to fall (p.303) back upon as they lost the fight to control the state institution. Explaining, as a descriptive and historical matter, how this came to be and what it means for a variety of ongoing debates concerning the regulation of marriage under U.S. law will take up the bulk of this chapter, but at the end I will add my own normative punch lines.

One way of seeing more clearly how dependent American Protestants are on state laws concerning marriage is to observe that this is not as true of other major religious groups in this country, notably Catholics and Jews. Catholics famously do not recognize divorce, and this helps them to understand full well that marriage in their faith tradition and marriage as the state defines it are not the same, so that one can be married in the eyes of the faith and not of the state, and vice versa. A divorced Catholic who remarries is married in the eyes of the state and not of the Catholic Church to his or her new spouse. That person is, in the eyes of the Catholic Church and not of the state, still married to his or her first spouse, from whom the state, but not the Church, legally divorced him or her. Canon law does provide Catholics married in the faith a legal procedure for seeking dissolution of their marriages, the petition for annulment. Through the presentation of a case to a tribunal of judges trained in canon law, the annulment process can result in a declaration of nullity for the marriage—in effect, a dissolution on the grounds that the marriage never really existed, that the parties were in some way cognizable under canon law disqualified from entering into marriage with one another in the first place.2

Just as Catholics have their annulment procedures, so observant Jews have their religious divorce procedures. The Jewish divorce, called a get, is given by the husband to the wife through the intermediary of a tribunal known as a beth din. Should the husband of an observant Jewish family obtain a civil divorce but decline to give his wife a religious divorce, she would be divorced in the eyes of the state but still married in the eyes of the religious community, so as to preclude, for example, her remarriage within the faith or the religious legitimacy of any children she might have with her next husband. This problem of the agunah, or “bound woman,” when it came to the attention of courts in New York State, led those courts to make it a condition of obtaining a civil divorce that a Jewish husband grant his wife a get.3 The holding of such cases was eventually codified in a state statute that in general terms made it a requirement as a precondition for a civil divorce for a party to a divorce action to certify that he or she had taken “all steps solely within his or her power to remove all barriers to the other party's remarriage following the … divorce,” with such barriers defined by the statute to include “any religious or conscientious restraint or inhibition, of which the [certifying spouse] is aware, that is imposed on a (p.304) party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act.”4 This statute, of course, raises interesting and difficult constitutional questions. For the present, I want only to suggest that, even though Reform, Reconstructionist, and Conservative Jews tend to rely on civil divorce procedures alone and not on the religious get or the beth din to exit their marriages, all branches of Judaism can be reminded of the gap between civil marriage and marriage in their faith tradition by the fact that the repertoire of marriage ceremonies for a typical civil official performing marriages, such as a justice of the peace, does contain language taken directly from the Book of Common Prayer, but does not usually contain a ketubah, or Jewish marriage contract.

Thus, Catholics and Jews in the United States have reason to understand the difference between civil and religious marriage, but Protestants have reason not to. Before I discuss some of the legal historical basis for this, I first want to present what for me was the “Aha!” moment for my theory, the moment when I became convinced I was on to something. It came when I observed that polls taken over the course of the last decade, when same-sex marriage was a hot topic nationally, consistently showed a large gap of around twenty percentage points or more in support for same-sex marriage as between Protestants and otherwise similarly situated religious groups. Let me give statistics from a few representative national polls by way of example: according to a CBS poll taken in July 2003, before same-sex marriage was yet available under the laws of any U.S. state, while 64 percent of Protestants opposed “gay marriage,” “Catholics also oppose[d] it, but by a smaller margin than the entire population,” 50 percent of Catholics as compared to 55 percent of the population as a whole.5 National poll results released by the Pew Forum in October 2004, months after same-sex marriage first became available under the laws of Massachusetts, indicated that 55 percent of Jews supported same-sex marriage. This may not be that surprising, because Jews on average tend to be more liberal than the population as a whole. But, among white Roman Catholics, Pew's October 2004 poll showed that opposition was 48 percent, again lower than among the population as a whole; 52 percent of Latino Catholics were opposed, 71 percent of Latino Protestants, 72 percent of black Protestants, and 75 percent of white evangelical Protestants.6 The most recent available update of the Pew Poll, released in October 2009,7 shows opposition to same-sex marriage at 65 percent for Protestants as a whole, with breakdowns showing the level of opposition ranging from a low of 48 percent among white mainline Protestants who do not attend church weekly to a high of 85 percent among white evangelical Protestants who (p.305)

Table 15.1 Support for Same-Sex Marriage and Civil Unions by Religion

Gay marriage

Civil unions

% favor

% oppose

% favor

% oppose

Total

39

53

57

37

Protestant

27

65

49

45

    White evangelical

17

77

39

57

        Attend weekly

10

85

29

67

        Attend less often

28

64

55

41

    White mainline

39

50

66

26

        Attend weekly

37

55

57

32

        Attend less often

41

48

69

24

    Black Protestant

25

66

43

49

Catholic

45

43

62

32

    White non-Hispanic

45

42

67

28

        Attend weekly

30

59

55

37

         Attend less often

54

31

75

22

Unaffiliated

60

34

68

27

Note: Portions of this table were adapted, with permission, from this source: Pew Research Center for the People and the Press, and Pew Forum on Religion and Public Life, 2009.

do; Catholics as a whole were 43 percent opposed, 45 percent in favor, with opposition ranging from 59 percent of non-Hispanic white Catholics who attended church weekly to 31 percent of those who didn't. Among no group of Protestants listed in the Pew October 2009 results did support for same-sex marriage exceed opposition, as it did among Catholics as a whole; let alone exceed the 50 percent mark as it did among white non-Hispanic Catholics who did not attend church weekly, 54 percent of whom were indicated as supporting same-sex marriage.

Before talking about what Protestant dependence on the state law of marriage in the U.S. means and what the law ought to do about it, let me give you my account of how it came to be, which begins with a very abbreviated legal history of marriage in the Anglo-American legal tradition.

The state was a latecomer to the regulation of marriage in medieval England, and even the Church exercised control only gradually and imperfectly. Initially, marriage in England was “a private contract for the purchase of a wife, a purely private transaction with no trace of anything such as a public license or registration, no authoritative intervention either by a priest or civil functionary, purely a private business transaction.”8 Such control as was exercised (p.306) was in the hands of the Church and canon law, not the state. When the Church sought in the high Middle Ages to increase its control over marriage, canon law resoundingly endorsed marriage's fundamentally private and contractual character, with Pope Alexander III in the twelfth century declaring it to be the law of the Church that “a contract by words of present consent” sufficed to form a valid marriage. Nothing further, in particular no public ceremony of any kind, was necessary for the marriage's validity, although formalities such as the publication of banns—the announcement of the impending marriage that gave notice to potential objectors—and the blessing of a priest were required to make a marriage fully licit, and a couple could be punished for failure to observe these formalities. Under the canon law of Alexander III, two otherwise single people past the age of puberty, eligible to marry, not closely related to one another, and of opposite sexes would be indissolubly married to each other if they simply said to one another, “I marry you.” Saying “I will marry you” would not be quite enough, because that was the future tense and a promise; however, a future commitment followed by sexual intercourse also made a valid marriage. This fine distinction between tenses caused no end of uncertainty about which were and were not valid marriages, even in the absence of fraud, because, as legal historian F. W. Maitland observed, “[Of] all people … lovers are the least likely to distinguish precisely between the present and future tenses.”9

In most of Western Christendom, Alexander III's canon law of marriage, which created a host of practical difficulties, was greatly altered or abolished during the Reformation—in Catholic countries through the reforms of the Council of Trent, in Protestant ones, through new civil and religious marriage legislation which generally permitted some divorce. England, however, was caught in something of a time warp, with its marriage law unreformed: it broke from the Roman Catholic Church before the Council of Trent, but its Protestant rulers long failed to take decisive action, despite a multiplicity of proposals for reform. Although despite his own troubles with the Catholic canon law annulment procedure Henry VIII did not carry through a systematic reform of the law of marriage when he broke with Rome, it is worthy of note that “the first English statute criminalizing sodomy was passed [under his reign] … when powers of the ecclesiastical courts were transferred to the King's Courts.”10 (Indeed, it was noted in the words I have just quoted by Chief Justice Warren Burger in his concurring opinion in Bowers v. Hardwick, the 1986 U.S. Supreme Court case upholding the criminalization of private adult consensual homosexual sodomy overruled in 2003 by Lawrence v. Texas.11 The purpose of Burger's concurrence was to establish that state proscription of homosexual (p.307) conduct has “very ‘ancient roots,’” inter alia in “Judaeo-Christian moral and ethical standards” and in the common law.)12

When the English state finally and definitively asserted control over marriage, it did so through its Established Church. The first systematic reform of English marriage laws, the 1753 Act for the Better Preventing of Clandestine Marriages, popularly known as Lord Hardwicke's Act13 after the lord chancellor who shepherded it through Parliament, represented the English state's assertion of monopoly control over the formation of marriage. The act declared null and void all marriages not preceded by the issue of an official ecclesiastical license or by the calling of banns in the Anglican church of the parish where one of the marriage partners had resided for a specified period. It required that marriages be witnessed and set forth detailed requirements for their entry in specially prepared marriage registers. Most violations of the act's provisions by a clergyman were made felonies subject to fourteen years' deportation to the colonies, but falsification of a marriage register subjected offenders to the death penalty. Each one of these provisions was designed to remedy perceived abuses in the application of the law of marriage over the preceding centuries. The act provided exceptions to its provisions for the marriage of Jews, but none for those of other non-Christians, Catholics, or Dissenters.14

Hardwicke's Act came after the tradition of marriage and its legal regulation had already developed in the American colonies. Even before its passage, however, in the Southern colonies settled by members of the Church of England, marriages were performed, as they are today, by members of the clergy, and those marriages were civilly recognized. In Puritan New England, by contrast, marriage was at the outset a civil institution, entry into which was presided over by civil magistrates; clergy were not only not authorized to perform marriages, they were initially disinvited from even attending the ceremony because it was thought that this would create too much confusion between marriage, which the Puritans saw as a civil contract, and religion.

Let me pause for a moment on that fact, tracing it back into history and forward into the present. How did the Puritans come to see marriage as a civil contract to be officiated over by a magistrate? Not only had this been done for a brief time in Cromwell's England, but the New England Puritans were apparently directly influenced by what Governor Bradford called “ye laudable custome of ye Low-Cuntries,”15 having spent time in the Netherlands before sailing for Plymouth Rock. The Netherlands for centuries has seen marriage as a civil contract. This may have some bearing on the fact that, at the turn of this millennium, the Netherlands was among the first countries to recognize any legal relationship between members of a same-sex couple with rights and (p.308) obligations even remotely parallel to marriage: it began by gradually granting certain rights to cohabiting same-sex as well as opposite-sex couples, it allowed cohabiting same-sex as well as opposite-sex couples to register their partnership in 1998, and then, as of 2001, it was the first to allow same-sex couples to marry.

In the United States itself, it is worthy of note that New England has been in the forefront of legal recognition for same-sex couples: Vermont was the first state, more than a decade ago, through state constitutional litigation,16 and subsequent legislation demanded by the Vermont Supreme Court, to grant same-sex couples civil union status—that is to say, full legal recognition without the name of marriage; Massachusetts was the first state to grant same-sex couples full civil marriage rights; and Connecticut the first state whose legislature did either without prodding from a court. When the Connecticut legislature passed a civil union statute very much like Vermont's, no court had yet demanded on constitutional grounds that it do so.17 Today all three of these states, together with their neighbor New Hampshire, are among the very few in the United States to give full marriage rights to same-sex couples. Why were these three states in the forefront? The most frequently given explanation, which clearly does play an important role, is that in the conventional red-blue map of the United States drawn in the last several presidential elections these are blue states, and states that are relatively liberal will be more receptive to same-sex couples.18 But, several other things should perhaps be taken into account, two of which I believe have been underestimated as causal factors.19 First, they have historical roots, not in Anglicanism, but in Puritanism,20 and therefore some legal historical basis for thinking of marriage as a civil contract. The second is something a more casual observer might initially be tempted to think would work against the political will to recognize same-sex couples—to wit, each of these states has a comparatively high percentage of Catholics in the population. This turns out to work in favor of same-sex couples, because Catholics are not as invested in marriage as the state defines it and marriage in the faith tradition being one and the same. That all three of these influences were playing a role in same-sex marriage recognition in New England can not only be inferred from historical and demographic data but also documented to be consciously at work in the minds of some state actors. Consider, for example, Massachusetts state senator Marian Walsh, who was assistant majority leader for the Democratic Party in 2004 when opponents of same-sex marriage called for a constitutional amendment to overturn the same-sex marriage legislation the legislature had passed in response to the Massachusetts Supreme Judicial Court's demand in the Goodridge case.21 Lobbied by constituents to support repeal of (p.309) same-sex marriage, Walsh, herself a practicing Catholic, suggested that instead of taking rights from same-sex couples perhaps Massachusetts should instead take away from clergy “the authority to perform civil marriage ceremonies that th[e] legislature gave them in 1692.”22

Until that time you had a member of the clergy marry you only after you had gone to the town hall or wherever. It was two separate locations. And the clergy of Massachusetts approached the legislature and asked for civil authority to marry…. [Perhaps] we should repeal that statute…. Now I say that somewhat tongue in cheek, but it did occur to me. And if I wasn't in such hot water I think I would have gone ahead and filed the bill. But my point is that is a privilege that they enjoy as a matter of statute. And the public thinks, by and large, just the opposite.23

The contrast between Protestant and Catholic views of the distinction between civil and religious marriage also was manifest in the facts surrounding the first federal constitutional case by same-sex couples asserting a constitutional right to marry to make its way to the U.S. Supreme Court, the 1971 case of Baker v. Nelson.24 Jack Baker, a devout Catholic, went to Mass regularly and talked to his priest about how the Church and how Christ Jesus would view his relationship with his male partner. Father William Hunt, chaplain of the Catholic Newman Center at the University of Minnesota where Baker was a law student, told Baker and others in a public dialogue that, in his “opinion, the state could well recognize homosexual marriages without leading to the destruction of marriage, but I am not so sure the Church should do the same.”25 When Baker and his partner obtained a civil license to marry, the couple chose Methodist ministers to perform the ceremony and sign the legal certificate.26

I will readily concede that the gap in tolerance for state recognition of same-sex marriage between Catholics and Protestants, which I have argued stems in large part from the gap that Catholics can see between marriage in their faith tradition and marriage as state law defines it, may not continue indefinitely into the future, despite having persisted so long. The hierarchy of the Catholic Church is every bit as opposed to state recognition of same-sex marriage as a matter of official policy as any of the evangelical Protestant churches, and the hierarchy may eventually work up their faithful to join them. In a particularly well publicized and expensive effort to influence his flock along these lines just before the 2010 November elections, Minneapolis archbishop John Nienstedt mailed to the homes of more than 400,000 Minnesota Catholics a DVD with a message stressing the need for a constitutional amendment to ban same-sex marriage in Minnesota. Not only Pope Benedict XVI and the U.S. Catholic Bishops Conference, but also individual Catholics and organizations of the laity such as the Knights of Columbus, who funded the mailing of Archbishop (p.310) Nienstedt's DVDs, have been active in opposing state recognition of same-sex marriage. The head of the National Organization for Marriage, Maggie Gallagher, is a Catholic, as is Princeton professor Robert George, a principal author of the 2009 Manhattan Declaration: A Call of Christian Conscience, which, in addition to opposing, inter alia, abortion, divorce, and sexual immorality, insisted that same-sex couples did not have “a civil right to have [their] relationship treated as a marriage.” It is important, however, to note that when Catholics such as Gallagher and George inveigh against same-sex marriage, they tend to stress, not the threat to their own marriages or those of their fellow believers, but the threat to society at large from the further erosion of what they call a marriage culture.27

Of course, Protestant opponents of same-sex marriage also express concerns about threats to society at large and warn of the general erosion of a marriage culture. I by no means intend to suggest that concern for the threat to their own marriages is at the root of all Protestant opposition to same-sex marriage in the United States, or that if this concern could be cleared up Protestant opposition would be significantly diminished. I only want to draw attention to the added peculiar stake American Protestants have in shaping state institutions as a result of their comparative dependence on the state in hopes of making sense of some of their rhetoric and illuminating what may underlie it. The analogy to Protestant investment in the curriculum of public schools to be discussed below is doubly relevant here. The successful campaign in support of California's Proposition 8,28 for example, stressed that among the most significant harms from state-recognition of same-sex marriage would be that children of same-sex marriage opponents could come home from public schools indoctrinated with the notion that when they grew up, they, too, could marry a person of the same sex.29 For Protestants, more than for other religious groups in these debates, the vulnerability is perceived as personal—they see a threat to their own marriages and focus on the threat to their own children when the values endorsed by state institutions differ from their own.

Like Protestant opponents, Protestant supporters of same-sex marriage also tend to stress the peculiarly personal stakes for them and members of their faith tradition in state recognition of same-sex marriage. One way of illustrating this point is by examining statements in an amicus brief in support of state recognition of same-sex marriage filed in the pre–Proposition 8 California Supreme Court Marriage Cases by the Unitarian Universalist Association of Congregations, the General Synod of the United Church of Christ (UCC), and a congeries of more than 400 other local, regional, and national religious organizations and clergy representing “a wide spectrum of faith traditions, including (p.311) Native American, Jewish, Muslim, Christian, Buddhist and Unitarian Universalist.”30 While the lawyerly portions of the brief set out the “general interest” of the amici in the recognition of same-sex marriage under California law, a sample of the religious organizations and individual clergy who joined the amicus brief were also given an opportunity in the brief to make a statement in their own words concerning their “specific interests” in the issue. Although it is often the practice of lawyers drafting an amicus brief to prepare all portions of it themselves, so as to ensure stylistic uniformity and a consistent message, the diversity of voices and writing styles in the section of the brief devoted to the statements of specific interest by individual organizations and clergy strongly suggests that, in this case, the lawyers assembled for inclusion in the brief statements their clients themselves had prepared. Strikingly, organizations and individual clergy from Protestant traditions stressed the imposition on the free exercise of their religion that resulted from the state's allowing them to perform civilly efficacious marriages only for their heterosexual congregants while denying them the possibility of performing civilly efficacious marriages for gay and lesbian couples. As Amicus William McKinney put it, “As an ordained minister in the United Church of Christ, whose General Synod has taken a position in support of marriage equality, my freedom to exercise my religious vows is compromised by current California law.”31 Similarly, the Unitarian Universalist Legislative Ministry argued:

For over three decades, Unitarian Universalist clergy have been officiating at the weddings of same-sex couples. The state's refusal to grant same sex couples access to civil marriage places our clergy in a moral dilemma, requiring them to treat the gay and lesbian members of their congregation differently than those who seek to marry someone of the opposite sex. This is against the principles of our faith.32

By contrast, Rabbi Arthur Waskow articulated as one of his specific interests in state recognition of same-sex marriage the additional juridical burden on him and on his faith community in regulating a form of marriage not in conformity with state law:

Large parts of the Jewish community have begun honoring and hallowing same-sex marriages without regard to legal, civic, and political decisions. But as one clergyperson who has been an officiant for same-sex as well as different-sex marriages, I can testify that the refusal of the state to set legal frameworks for same-sex marriage puts a great burden on the religious communities that celebrate them. Why is this? Because state laws can set the frameworks (especially for divorce) that otherwise the religious communities must take into their own hands. Thus I have found it necessary to insist that same-sex couples work out with me the kind of elaborate interpersonal contracts for possible divorce, child custody, roles in case of sickness, etc., that public (p.312) family law for different-sex marriage makes available to all. This takes days and weeks of my time and that of the couple that are not required when I am officiating for a different-sex marriage.33

Among the many things this contrast in approaches reveals is, once again, the comparative juridification of Jewish in contrast to Protestant approaches to marriage, perhaps reflective of a more juridical approach to religion overall. It also reveals the habits of mind formed by religious traditions that have not been able historically to count on civil law to govern community members in a way consistent with their religious requirements.

Conservative Rabbi Elliot Dorff highlights Jewish recognition of the distinction between civil and religious marriage regulation by noting in his statement of specific interest that “[e]ven those adherents to Conservative Judaism who have difficulty reconciling the performance of a religious marriage ceremony for gays or lesbians with Leviticus 18:22 are strongly in favor of legalizing civil marriage for same-sex couples as a matter of individual American rights.”34 By contrast Pastor Scott Landis of the United Church of Christ, a denomination whose thickest roots are the Puritan Congregational Churches of Plymouth Plantation and Massachusetts Bay, articulates a different perspective on “why matters of Church and State ought to remain separate.”35 In his statement of specific interest, Pastor Landis reiterates the Puritan view of marriage as a civil contract, with the potential to be blessed but not created by religious bodies: “Marriage is a State function and should remain that way. If churches want to endorse (bless) the civil marriage between same- or different-sex couples, that is the individual denomination's prerogative.”36

At this point readers may be wondering, given the diversity of individual and denominational approaches within American Protestantism to questions of same-sex marriage, with some in vehement opposition, others in equally vehement support, some arguing for a greater separation of church and state when it comes to marriage, others for closer alignment between them, what sense it makes for me to speak of U.S. Protestants generally as having a peculiar stake in the question of state regulation of same-sex marriage. Shouldn't I always be separating out supporters from opponents, Puritans from Anglicans from evangelicals, liberal denominations from conservative ones? Let me reiterate that what all major Protestant groups in the United States have in common is their comparative dependence on the state for the definition of marriage, its formation, and above all its dissolution. This is true for Protestant denominations such as those descended from the Puritans, who started out clearly aware of and fully embracing the state's role in their marriages because they saw marriage as a civil contract. It is equally true in a different way of denominations (p.313) whose heritage is more closely aligned with the Church of England or with the Southern states originally settled by Anglicans who brought with them to the New World their approach to marriage, all of whom tend to be less aware of and less embracing of their dependence because they have no religious tradition of seeing marriage as a civil contract. How this manifests itself for different Protestant denominations with different attitudes toward marriage in general and same-sex marriage in particular is a function of how a given denomination's attitudes intersect with the existing state law and the nature of proposed changes to it. That conservative evangelicals are dependent on the state for the regulation of marriage becomes salient only when the state law of marriage proposes to change in a way strongly inconsistent with conservative evangelical beliefs, as it does at present in states moving toward same-sex marriage. Dependence on the state matters less and therefore there is less reason to notice it when state law and denominational commitments are in accord.

The tendency of Protestants to conflate civil and religious marriage doesn't just help explain some of the concerns voiced by evangelical Protestants over state recognition of same-sex marriage, it also helps explain another interesting recent development in American family law, covenant marriage, an alternative form of civil marriage available in a few Southern states. While in most U.S. states today civil marriage can be entered into on something close to the spur of the moment and is close to terminable at will, covenant marriage is somewhat harder to get into and out of. The Louisiana covenant marriage law, for example, in addition to tightening divorce requirements for couples who choose it as an option, requires of such couples

premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, [and] a discussion of the obligation to seek marital counseling in times of marital difficulties.37

This statutory precondition mobilizes the mechanisms of state law to achieve some of what the Catholic Church in the United States has long done without governmental reinforcement, through the pre-Cana counseling it requires of couples who seek to marry in the Church.

Political scientists have detailed the leading role in passing Louisiana's covenant marriage law played by conservative evangelical Protestant activists such as Tony Perkins, then a member of the state legislature and now head of the Family Research Council. For Protestant activists like Perkins, the covenant marriage legislation offered a “politically more palatable” alternative to their (p.314) preferred option of generally reinstituting state laws “limiting access to divorce and restoring the requirement that someone must be to blame”38 for the failure of a marriage. The fact that there is so little air between civil and religious marriage for Protestants and so few juridical mechanisms apart from state law for them to invoke to enforce their vision of marriage helps account for the comparative prominence of Protestant activists in covenant marriage legislation. Catholic priests can wag a finger at their faithful and say, “Thou shalt not divorce,” and make that admonition stick legally through canon law. Protestant pastors may also wag their fingers and preach against divorce, but in the vast majority of cases in the United States, there is nothing legally either in church law or in civil law to give them enforcement power. Indeed, then governor Mike Huckabee of Arkansas, another of the very few states with a covenant marriage option, reported as he converted his own long-standing marriage into a covenant marriage on Valentine's Day 2005 that the pastor of the church he attends had announced that he would perform only covenant marriages.39 Notwithstanding the efforts of such pastors, however, the number of covenant marriages has to date remained minuscule: as a percentage of new marriages in the states in which it is an option covenant marriage has remained in the single digits.

There are significant parallels between my historical and analytical account of Protestant intervention into marriage regulation and another major contemporary issue about which evangelical Protestants are exercised, the longstanding and ongoing debates over the curriculum in public schools. For evangelical Protestants today, state-licensed marriage may function in somewhat the same way as state-sponsored public schools did for Protestants in the past. Both marriage law and public school curricula could be put in service of sectarian ends by groups that substituted capture of the state institution for development of their own clearly religious alternatives. While Catholics and Jews, shut out of state education funding, founded private sectarian schools, the curriculum in the ostensibly secular public schools often tended to be infused with Protestant principles. Accustomed to and dependent on this, some Protestants, beginning in the nineteenth century and continuing to this day in a host of Establishment Clause cases concerning the public schools, resisted mightily but with increasingly less success any perceived attempt to make the institution of public education more neutral and secular and less clearly an embodiment of their values. Beginning with the nineteenth-century Bible wars, in which there was dispute about whether the King James version or some other version of the Bible should be taught,40 the struggle for control of the public school curriculum famously continued through twentieth-century disputes about (p.315) prayer in the schools to twenty-first-century disputes about whether creationism or intelligent design can be taught therein. As with marriage, so with the schools, because Protestants in the United States could for many years control the state institution, they saw little need to develop their own sectarian alternatives. Catholics, by contrast, initially competed unsuccessfully for control of the state institution, going into the Bible wars and political disputes over funding demanding the Douay version of the Bible and that sectarian schools in which their doctrine would be taught also be publicly funded, state-sponsored and-denominated public schools. Catholics long ago realized that battle was a losing one and went on to establish their own private parochial schools, as did Jews. Therefore neither Catholics nor Jews felt quite the same need to regroup later when the courts forced a disaggregation of religious and public education. Not until comparatively recently did evangelical Protestants have to cope by setting up their own private sectarian schools. In the South, this was partly as a result of the ban on segregation in the public schools, but also as a result of new Supreme Court mandated restrictions on prayer and the Bible in public schools and later refusals by lower courts to mandate that public schools offer religious accommodation to parents who wanted to shield their offspring from being taught about matters that conflicted with religious teaching, such as women's liberation or evolution.

Having set forth my descriptive understanding of the way in which civil and religious marriage came to be particularly conflated for Protestants, and why therefore Protestant opponents of same-sex marriage may understandably but not justifiably feel threatened, let me now discuss what the law should do about it. I come at this normative question, not just as a feminist theorist who studies family law and the regulation of sexuality, a supporter of same-sex marriage, and a scholar of Equal Protection and Due Process, the constitutional guarantees most closely associated with claims by gay couples that they have a constitutional right to marry, but also as a scholar of the First Amendment and of comparative law. Anyone who has even a colloquial understanding of the First Amendment's Establishment Clause and the sort of separation of church and state it has been thought to mandate should be quite surprised by the way state laws in the United States regulate marriage. The idea that a minister of the gospel or other member of the clergy can simultaneously and seamlessly perform both a civil and a religious marriage should be antithetical to our view of the separation of church and state. It certainly is not the way many other countries, including some, like Germany, which constitutionally enshrine, not separation of, but cooperation between, church and state, go about regulating marriage. In Germany only civil marriage has the force of law, and it may be performed (p.316) only by a civil registrar. German couples are free to have an entirely separate religious ceremony performed by clergy, but that ceremony “has no legal effect under German law.”41

The United States might consider following the German example, either by disaggregating civil and religious marriage while continuing to call them both marriage or by adopting the innovative term civil union for anything the state does and leaving the term marriage to religious communities. This would incidentally solve some problems other than the ones around which I am centering this chapter, such as the following: although a marriage license is often thought to license the members of a couple themselves to enter into marriage, as a technical matter of law it instead licenses the celebrant of their wedding. Black's Law Dictionary defines a marriage license as “permission granted by public authority to persons who intend to intermarry, usually addressed to the minister or magistrate who is to perform the ceremony [and] … in most jurisdictions … made an essential prerequisite to the lawful solemnization of marriage.”42 In many states it still is some sort of crime—not generally a felony, as under Hardwicke's Act, let alone a capital offense, but a misdemeanor—for a member of the clergy authorized to perform marriages to do so in the absence of a civil license and in a way designed not to have binding effect under state law. Although prosecutions under such statutes are rare, shouldn't their mere presence on the books raise a red flag under the Establishment and Free Exercise Clauses? The state has made it a criminal offense for a member of the clergy to perform a religious ceremony without obtaining a state license beforehand and without registering it with the state afterward. A man and woman who wish to be married in the eyes of their faith, but not of the state, risk making criminals of clergy who accommodate their wish. Consider, for example, a couple of senior citizens, widow and widower, who wish to avoid living in sin in the eyes of their faith or to be married to each other under a chuppah, but not to enter into a new civil marriage, so as not to lose Social Security, pension, and other benefits accrued through their deceased spouses or to complicate estate planning on behalf of their children from the earlier marriage. It can be difficult for their minister or rabbi legally to accommodate them because, unlike same-sex couples, these two senior citizens can clearly enter into a legal marriage. I personally have been asked for legal advice by clergy on whom such prohibitions have had a chilling effect.

What the practical effects might be of the U.S.'s following the German example and further disaggregating civil and religious marriage, and whether getting the state out of the business of recognizing marriages would be a good idea from the standpoint of nonconstitutional law or policy, are subjects well beyond (p.317) the scope of this chapter. For reasons I have set out at length elsewhere,43 having largely to do with that quintessential University of Chicago value, efficiency, I am convinced that from a practical lawyering perspective ending state-sponsored marriage would be neither desirable nor feasible. To call the unions something other than marriage would also be inefficient, given how widespread and ingrained a term “marriage” has become, not only in public law but also in private agreements dealing with a range of issues from property and employment to insurance. If the analysis extends beyond efficiency to the symbolic and expressive dimensions of ending state-sponsored marriage, the considerations and constituencies multiply exponentially.

Here let me only very briefly suggest what the reaction of some of the Protestant opponents of same-sex marriage in the United States might be to such a suggestion. Just as there were some Protestants who in the end welcomed the opportunity to home school their children or to send them to sectarian schools, there are some Protestants, as there are some members of other faith traditions in the U.S. and elsewhere, for whom getting the state out of the marriage business or more clearly disaggregating civil and religious marriage might be attractive because they could then more directly influence their own congregations and more freely develop their own regulation of marriage. On the other hand, just as there are some Protestants who are still fighting to conform the public school curriculum fully to their religious values, by federal constitutional amendment if necessary, there are some who wish to keep or reassert control over civil marriage, because instead of focusing on speaking only to their own faithful, they want to impose on all of the rest of us the rules they think are right from the perspective of their faith tradition.

I would urge on this latter group the following, however: when they talk, as in the same-sex marriage debates they so often do, about “preserving traditional marriage,” they ought to realize two things: first, how little of traditional marriage on anyone's definition there is left to preserve in the American civil law of marriage; and second, that to restore many traditional aspects of the law of marriage would require not just massive legislative change but also federal constitutional amendment, since many traditional aspects of the state regulation of marriage have been held unconstitutional by the U.S. Supreme Court. Marriage was once the exclusive means of licensing sex and all that went with it—procreation, cohabitation, and the control of children. While it once bound couples together indissolubly for life in a heavily regulated status relationship, virtually all terms of which were mandatory and imposed by the state, civil marriage now licenses in a new way—a married couple is by and large free to have or not have sex, vaginal or not, procreative, contracepted, or otherwise, to (p.318) be faithful or not, to divorce and remarry, to commingle their finances or keep them separate, to live together or separately, to differentiate roles or share all tasks, to publicize their relationship or be discreet about it, while still having their commitment to one another legally recognized by third parties including the state.

The aspect of traditional marriage most clearly banished as a constitutional matter from the current law of marriage in the United States, which most definitely is not there in the law to be preserved and which cannot be brought back without major federal constitutional change, is legally enforced female subordination and sex role differentiation.44 All legally enforced sex role differentiation, let alone subordination, between husbands and wives has been ruled constitutionally out of bounds by the U.S. Supreme Court, which held in a consistent line of cases that “fixed notions concerning the roles and abilities of males and females”45 were unconstitutional when embodied in law, including the fixed notion that men must be breadwinners and women homemakers, let alone the fixed notion that husbands were masters of the marital community.

Nevertheless, many evangelical Protestants have a very strong stake in reinforcing sex role differentiation and male headship in marriage. It was perhaps not coincidentally for the first time in 1998, shortly after U.S. constitutional law had definitively abolished legally enforced sex role differentiation, that the Southern Baptists first officially promulgated their directive that it was a wife's duty graciously to submit to her husband's servant leadership.46 The submission of wives to husbands was not a new concept to Southern Baptists in 1998, but it appears that they were forced to juridify this aspect of their view of marriage for themselves when they could no longer count on the state to do it for them.

It is no accident, I think, that the cartoon couple with whom I began this essay were depicted as traditionally role differentiated, with a husband in the foreground fulminating about the “foundation of [his] marriage” and the wife in the background doing housework. The last remaining “foundation” in the civil law for sex role differentiation in marriage is the exclusion of couples from marriage on the basis of their sex, as I have long argued and as Vaughn Walker, the federal judge who held Proposition 8 unconstitutional, clearly held after lengthy and extensive fact-finding.47 This, I am convinced, helps explain a lot of the vehemence with which religious groups committed to sex role differentiation oppose state recognition of same-sex marriage. While I would personally prefer that the foundations of sex role differentiation in marriage not be replaced at all, it is clearly more consistent with the American constitutional vision not only of sex equality but also of separation of church and state that (p.319) Protestant denominations like the Southern Baptists who wish to do so replace these foundations by juridifying their religious approach to marriage than that they turn to the civil law to shore up their religious foundations.

Notes

This chapter is an extended form of arguments I made earlier in “Marriage Licenses,” Minnesota Law Review 89 (2005): 1792–97, and an abbreviated form of the arguments I will make in my forthcoming work, “Why Evangelical Protestants Are Right When They Say That State Recognition of Same-Sex Marriages Threatens Their Marriages and What the Law Should Do about It.” See also Mary Anne Case, “What Feminists Have to Lose in Same-Sex Marriage Litigation,” UCLA Law Review 57 (2010): 1199–1233; Mary Anne Case, “A Lot to Ask: Review Essay of Martha Nussbaum's From Disgust to Humanity,” Columbia Journal of Gender and Law 19 (2010): 89–124; Mary Anne Case, “From before Hardwicke's Act to after the Defense of Marriage Act” (unpublished manuscript, on file with author and delivered at the 2005 annual meeting of the American Historical Association).

(p.320)

Notes:

(1.) Mike Keefe, Marriage Foundation, Political Cartoon, Denver Post, July 13, 2004. From PoliticalCartoons.com., http://www.politicalcartoons.com/cartoon/d5a5489c-8585-45c2-953f-06f3702308b3.html (accessed October 4, 2010).

(2.) For a very personal account of the annulment process through the eyes of the divorced spouse of a politician from the Kennedy family, see Sheila Rauch Kennedy, Shattered Faith: A Woman's Struggle to Stop the Catholic Church from Annulling Her Marriage (New York: Pantheon, 1997).

(3.) See, for example, Avitzur v. Avitzur, 446 N.E. 2d 136 (N.Y. App. Ct. 1983), cert, denied, 464 U.S. 817 (1983).

(4.) N.Y. Dom. Rel. Law § 253 (McKinney Supp. 1983).

(5.) “Poll: Legalize Same-Sex Marriage?” CBSNews.com, July 30, 2003, accessed April 1, 2005, http://www.cbsnews.com/stories/2003/07/30/opinion/polls/main565918.shtml.

(6.) “Poll: Strong Religious Opposition to Same-Sex Marriage, Advocate.com,” Advocate.com, accessed March 29, 2005, http://www.advocate.com/print_article.asp?ID=13661&sd=09/11/04-09/13/04.

(7.) “Pew Research Center for the People and the Press, Most Still Oppose Same Sex Marriage, Majority Continues to Support Civil Unions, Results from the 2009 Annual Religion and Public Life Survey,” October 9, 2009, accessed October 4, 2010, 4, http://people-press.org/reports/pdf/553.pdf. This particular report does not list results on the question from religious groups other than Catholics and Protestants, including Jews.

(8.) George Elliott Howard, A History Of Matrimonial Institutions (Chicago: University of Chicago Press, 1904), 285.

(9.) Sir Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, vol. II (Cambridge: Cambridge University Press, 1898), 369.

(10.) Bowers v. Hardwick, 478 US. 186, 214 (1986) (Burger, CJ. concurring).

(11.) Lawrence v. Texas, 539 US. 558, 605 (2003).

(12.) Hardwick, 478 U.S. at 214 (Burger, CJ. concurring).

(13.) Act for the Better Preventing of Clandestine Marriages, 1753, 26 Geo. 2, c. 33 (Eng.).

(14.) See ibid., 18.

(15.) William Bradford, History of Plymouth Plantation (Boston: Little, Brown and Co., 1856), 101, quoted in Howard, A History of Matrimonial Institutions, 129.

(16.) Baker v. Vermont, 744 A.2d 864 (Vt. 1999).

(17.) In subsequent litigation, the Connecticut Supreme Court held that granting civil union status only and not marriage to same-sex couples was impermissible discrimination against them under the Connecticut Constitution and required the legislature to remedy this.

(18.) For further discussion, see June Carbone and Naomi Cahn, Red Families v. Blue Families: Legal Polarization and the Creation of Culture (New York: Oxford University Press, 2010).

(19.) Additionally, each of these states ranks low in overall religiosity and also low in percentage of evangelical inhabitants. See Figure 1.5 on page 27 and Figure 9.8 on page 272 in Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (New York: Simon and Schuster, 2010).

(20.) The first European settlers in Vermont, on the border with French Canada, were French Catholics, followed by Protestant Dutch from New York and English from Connecticut and Massachusetts.

(21.) Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003).

(22.) Marian Walsh, “Remarks at Massachusetts Constitutional Convention,” lecture, Massachusetts National Convention, March 29, 2004.

(23.) Marian Walsh, “Remarks at Kennedy Library Forum,” lecture, Kennedy Library Forum, November 16, 2008.

(24.) I have written at length about the Baker case in Mary Anne Case, “Marriage Licenses, 2004 Lockhart Lecture,” Minnesota Law Review 89 (2005): 1758.

(25.) “Priest Says State, Not Church, Might Sanction Gay Marriages,” Minneapolis Star, September 25, 1971, 13A.

(26.) Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic Books, 2001), 165.

(27.) See, for example, Maggie Gallagher, “The Stakes: Why We Need Marriage,” National Review Online, July 14, 2003, accessed October 4, 2010, http://www.nationalreview.com/articles/207483/stakes/maggie-gallagher.

(28.) The passage of Proposition 8 by the voters of California added to the California Constitution the provision that “only marriage between a man and a woman shall be valid or recognized in California,” overturning the California Supreme Court's prior decision that to deprive same-sex couples of the right to marry violated the California Constitution. In Perry v. Schwarzenegger, now on appeal, a federal judge held that, because Proposition 8 violated federal constitutional guarantees of due process and equal protection, its enforcement must be enjoined. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir 2009).

(29.) See, for example, “Yes on 8 TV Ad: It's Already Happened,” video clip [n.d.], www.youtube.com, http://www.youtube.com/watch?v=oPgjcgqFYP4 (accessed October 4, 2010), showing a young girl coming home from school telling her mother that what she learned in school today was “how a prince married a prince, and I can marry a princess,” followed by a talking head law professor telling parents that in Massachusetts after the state recognized same-sex marriage, courts ruled that parents had no right to object (p.321) when the message that “boys can marry boys” was taught to second graders in public schools.

(30.) Brief of amici curiae, Unitarian Universalist Assoc. et al., filed in In Re Marriage Cases, California Supreme Court Case no. S147999, at 1.

(31.) Ibid., xxxv.

(32.) Ibid., xvi.

(33.) Brief of amici curiae, Unitarian Universalist Assoc. et al., at xxiv–v.

(34.) Ibid., xxvii–xxviii.

(35.) Ibid., xxx.

(36.) Ibid., xxix–xxx.

(37.) La. Rev. Stat. Ann. § 9:273 A(2)(a) (West 2004).

(38.) Scott L. Feld et al., “Christian Right as Civil Right: Covenant Marriage and a Kinder, Gentler, Moral Conservatism,” Review of Religious Research. 44 (2002): 178.

(39.) Rick Lyman, “Trying to Strengthen an ‘I Do’ with a More Binding Legal Tie,” New York Times, February 15, 2005, A1.

(40.) For further discussion, see, for example, Linda Przybyszewski, “Competing Theories of Church and State: The Cincinnati Bible War of 1869–1872,” unpublished manuscript on file with author and delivered at the 2005 Annual Meeting of the American Historical Association.

(41.) See, for example, Carolyn Hammond and Alison Perry, eds., Family Law in Europe, 2d ed. (London: Butterworths, 2002), 297.

(42.) “Marriage,” in Black's Law Dictionary, 5th ed. (St. Paul: West Publishing, 1979).

(43.) See Mary Anne Case, “Marriage Licenses,” 2004 Lockhart lecture, Minnesota Law Review 89, no. 1758 (2005), for further discussion.

(44.) See Mary Anne Case, “What Feminists Have to Lose in Same-Sex Marriage Litigation,” UCLA Law Review 57, 1199 (2010), for further discussion.

(45.) Miss. Univ. for Women v. Hogan, 458 US. 718, 725 (1982).

(46.) See Baptist Faith and Message Study Comm., Report to the Southern Baptist Convention, http://www.utm.edu/martinarea/fbc/bfm/1963-1998/report1998.html.

(47.) See Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND CAL 2010).