by Ken Burrows
Various courts around the country, including the U.S. Supreme Court, have been increasingly receptive to same-sex marriage, based mainly on the need to constitutionally ensure equal rights to all citizens. What the courts have less commonly acknowledged is that laws banning such marriages have rested almost exclusively on a constitutionally dubious collusion between church and state. No matter how they’ve worded their motives, advocates of legally limiting marriage to one-man-one-woman have in the main been seeking to impose their favored religious doctrines about marriage onto all. They’ve sought to give sacramental prerogatives legal preference over secular rights.
This goal was never more overtly stated than in 2009 when a group self-identified as “Orthodox, Catholic and Evangelical Christians” got together to draft the “Manhattan Declaration: A Call to Christian Conscience.” Though this Declaration said “immunity from religious coercion is the cornerstone of an unconstrained conscience,” it also advocated for traditional marriage as an “institution ordained by God” and said it is “the duty of the law to recognize and support” this definition. Never mind how this contradicted the “immunity from religious coercion” they said they esteemed.
Such religion-based reasoning about marriage has persisted, leading to enacted measures that were inimical to equality and, ironically enough, erosive of religious liberty. Why? Because they sought to establish by statute or amendment only selected religious principles about marriage, relegating to an inferior status those individuals and religions whose beliefs about marriage do not conform to the majoritarian dogmas driving such limitations.
This church-state mingling did not trouble elected officials and religious adherents who happened to see their own beliefs about marriage written into law. Indeed, they enjoyed having the numbers on their side and relished the victories that brought. The questionable constitutionality of letting religion dictate law and policy either didn’t cross their minds or was a nit they deemed not worth picking.
Though the courts have been slow to recognize this aspect of the marriage equality debate, others saw it early on. Jacob Sullum of Reason magazine once wrote: “A sacrament requires God’s blessing, not the government’s. Civil marriage is not synonymous with ‘the sacred institution of marriage.’” He said government should not be in the one-size-fits-all marriage approval business. Reverend Peter Gomes of Harvard University’s Memorial Church drew a similar distinction between the church addressing marriage for its congregations versus attempting to subordinate citizens’ civil rights to the church’s own tenets. He said such rights should never be subject to the holdings of a majority faith. Even author Huston Smith, a noted defender of the role religion plays in people’s lives, said in his book Why Religion Matters that “The state claims the prerogatives of the church at its peril.”
The effort to limit marriage to one-man-one-woman has indeed largely been a campaign to extend dogma beyond the church’s own faithful and impose onto all citizens a definition of marriage that conforms to sacramental dictates, regardless of individuals’ varying beliefs about marriage. The courts are recognizing the injury to equality and personal freedom that results. By continuing to advance marriage equality, courts reassert the vital separation of secular from sacramental when it comes to marriage. They undo this latest pervasive mixing of church and state and reinforce the individual liberties such mixing endangers.