“And so, by the power vested in me by the State of ___ and Almighty God, I now pronounce you husband and wife. What God has joined together, let no man put asunder.”
This pronouncement is the point in a religious wedding ceremony where the power of the state and the power of the Almighty God come together to fuse a couple in holy matrimony. To date, the vast majority of debates on same-sex marriage have focused on whether it is morally or spiritually correct. However, the foundational issue is whether the church should seek the right to control marriages performed outside of its walls. At its core, this is a battle that challenges the tenuous yet mutually protective balance between church and state, and the results matter regardless of what you believe about same-sex marriage.
Weddings are typically joyful experiences and even the most avowed atheists have not tried to prevent ministers from claiming the power of the State in performing the ceremony. However, even though the church and the state may happily hold hands at the wedding, they cannot dance together gracefully into a long-lasting marriage unless each has great respect for the non-overlapping rights and obligations of the other.
Unlike the newlyweds, the state is not obligated to “forsake all others,” when it comes to religious viewpoints. The state has little discretion when it comes to solemnizing marriages, and absent an amendment to the constitution itself, is limited only by statutes having to do with the consent of the parties, age of the parties, and whether there are more than two parties involved. On the other hand, churches have very broad discretion to solemnize marriages and can refuse to do so for virtually any reason. This broad discretion has not been challenged.
However, when the state begins to recognize marriages that churches find inappropriate, many churches are offended – churches feel almost as if the state has decided to “cheat” on the church. And hell hath no fury like a church scorned.
Regardless of the fact that same-sex couples have sought ceremonies in churches that will perform them or have sought civil ceremonies, conservative churches have begun to step in and intervene and have relied upon the power of the majority to force changes in otherwise permissive state constitutions. This is not only a battle between secularism and religion. It is a battle between competing religious ideologies, and ultimately a battle for spiritual control.
Alonzo T. Jones, writing in his 1891 classic, The Two Republics: or, Rome and the United States of America, makes an astonishing observation about the way that the Medieval church accumulated political power over the state.
Another most prolific source of general corruption was the church’s assumption of authority to regulate, and that by law, the whole question of the marriage relation, both in the Church and in the state. ”The first aggression . . . which the Church made on the state, was assuming the cognizance over all questions and causes relating to marriage. ” — Milmaii.21 (Click here to read the entire passage.)
While we are not at a point in history where the church is asserting direct political control, we can see that the church may be headed down this pathway yet again. After describing the circumstances and the Church’s methods, Jones continues:
“[I]n accordance with the rest of the theocratical legislation of Constantine and the bishops, the precepts of the Scripture in relation to marriage and divorce were adopted with heavy penalties, as the laws of the empire. As the church had assumed ‘cognizance over all questions relating to marriage,’ it followed that marriage not celebrated by the church was held to be but little better than an illicit connection.”
The church continued to assert control over legal marriage for centuries thereafter. In March of 1880, the Canadian Parliament considered a bill that would allow a man to marry his deceased wife’s sister. The debate quickly turned to an argument over whether the church or the state had the power to regulate marriage. There were Protestant and Jewish participants in the debate, the entirety of which can be read above, however the Catholic representative quickly asserted that the Church had “supreme power over marriage” and that the state must stand down.
“Pius IX, in his letter to the King of Sardinia, dated 19th September, 1852, says : ” It is a dogma of faith that marriage was raised by Our Lord Jesus Christ to the dignity of a sacrament.” Would you know the doctrine ? The Council of Trent speaks: “Whosoever says that marriage is not really and truly one of the seven sacraments of the Evangelical Law, let him be anathema.” If marriage is a sacrament, and such is our unalterable belief, the Church only, by divine right, has supreme power over Christian marriage. In fact the Church alone is the dispenser of the sacraments. St. Paul teaches us this in his first epistle to the Corinthians, chapter 4, in which he says : ” Let a man so account of us as of the ministers of Jesus Christ and stewards of the mysteries of God.” The Pope Gelasius, writing to the Emperor Austasinstold him plainly: ‘ Although your dignity raises you above the human race, you are nevertheless subject to the Bishops in matters relating to the faith, and to the delivering of the sacraments.” And what is a sacrament, if it be not a means subordinate in its nature to the object of religious society? The Church has, therefore, supreme power over marriage. . . . We now arrive at the true question as it presents itself to us. We shall easily solve it. The hon. member for Jacques Cartier brings in a Bill which may meet with our approval, but he has just delivered a speech which I cannot accept as an expression of the ideas and principles of Catholics upon this question of marriage. What does the hon. member maintain? That this Parliament has the undoubted right to establish absolute impediments to marriage, and the not less undoubted power of dispensing with them. I protest against such a declaration, and I emphatically deny that this Parliament has a right to legislate as to the validity of marriage. Marriage is a sacrament; the state has nothing to say as to the administration of the sacrament, and, by consequence, as to the validity of marriage. That is an ecclesiastical contract over which religious society alone has a power, which cannot be vested in the state.” (Emphasis added. Click here to read the debate.)
In the eyes of the Catholic church at the time, only sacramental marriage was legitimate. Again, the current debate relates to this history. Does the church or the state have the power to define marriage? If the church has the power, which church?
In California, church and state collided on marriage issues in 1948 when the Catholic Church sued claiming that the state had violated its religious liberty through a long-standing civil prohibition on interracial marriages. The Court issued its ruling in Perez v. Sharp,198 P.2d 17, 32 Cal. 2d 711 (1948) (also known as Perez v. Lippold). Those opposed to interracial marriage raised three major arguments: First, they argued that the law was really not discriminatory. Secondly, they discussed the effect on the children. Third they asserted that, in this case, the state had the power over the church’s sacrament because of an interest in promoting the “health safety, and general welfare.” Ironically, these three arguments once used against the church’s request provide the backbone of the current arguments against same-sex marriage.
The Court’s majority found that the church was right and that the “anti-miscegenation” law was unconstitutional. Justice Shenk, dissenting in favor of the prohibition, wrote that the law was not discriminatory because, “Each [party seeking to marry a member of a different race] has the right and the privilege of marrying within his or her own group.”
In language that appears extremely offensive, Shenk turned his attention to the children resulting from interracial unions, “It is contended that interracial marriage has adverse effects not only upon the parties thereto but upon their progeny . . . and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races.”
Justice Shenk then stated that prohibiting interracial marriage was consistent with the “peace and safety” provisions of the Constitution. Shenk’s arguments should be familiar if you are following the current debate, and in fact several of the same cases are regularly cited including Cantwell v. Connecticut, and Reynolds v. United States.
“Other considerations are presented in connection with petitioners’ contentions that their religious liberty is being infringed. The First Amendment to the United states Constitution declares that Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof. The due process of law clause of the Fourteenth Amendment embraces this fundamental concept of liberty as expressed in the First Amendment and renders the states likewise incompetent to transgress it. However, this religious liberty ‘embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’ Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352; Murdock v. Pennsylvania, 319 U.S. 105, 110, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81; Gospel Army v. City of Los Angeles, 27 Cal.2d 232, 163 P.2d 704. It has long been held that conduct, consisting of practices and acts, remains subject to regulation for the health, safety and general welfare. For example, a legislative determination that monogamy is the ‘law of social life’ has been held to prevail over the practice of polygamy and bigamy as a duty required, encouraged or suffered by religion. Reynolds v. United states, supra, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Cleveland v. United states, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12.
“The reasoning behind this construction of the Constitution is obvious. The determination of proper standards of behaviour must be left to the Congress or to the state legislatures in order that the well being of society as a whole may be safeguarded or promoted. The protection of the individual’s exercise of religious worship afforded by our state Constitution, Article I, section 4, corresponds with that furnished by the federal guaranty as interpreted by the United States Supreme Court. Our Constitution expressly provides that the free exercise of religion guaranteed ’shall not be so construed as to * * * justify practices inconsistent with the peace or safety of this state.’”
Justice Shenk then provides a sampling of “supportive” scientific and legal documents, which are nearly frightening, and draws the following conclusion:
The foregoing excerpts from scientific articles and legal authorities make it clear that there is not only some but a great deal of evidence to support the legislative determination (last made by our Legislature in 1933) that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power. There may be some who maintain that there does not exist adequate data on a sufficiently large scale to enable a decision to be made as to the effects of the original admixture of white and Negro blood. However, legislators are not required to wait upon the completion of scientific research to determine whether the underlying facts carry sufficient weight to more fully sustain the regulation.
Incidentally, most churches stayed out of the interracial marriage debate, leaving the Catholic Church to carry the civil rights issue forward.
Although it has not happened as of yet in California, a lawsuit brought by a church that wishes to perform same-sex marriages that are recognized by the state could easily follow the reasoning found in Perez. This could create a bitter inter-religious fight in the courts between fundamentalist churches and permissive churches, and the courts would be asked to make a ruling on a religious issue. My guess is that fundamentalists considered this troubling prospect and proposed the Constitutional Amendment to take the matter out of the court system altogether. However, in doing so, marriage was denied a full legal treatment, and the reliance on public sentiment to permanently curtail judicial examination of potential rights creates a very troubling precedent which will likely carry over into other contexts. To understand the gravity of this approach, consider that had a ballot initiative been campaigned to amend the California constitution in opposition to the California Supreme Court’s finding in favor of allowing interracial marriage, interracial marriage would likely be unconstitutional in California today.*
While there are certainly reasons why churches should to have the right to solemnize only traditional marriage of a man and a woman within their walls, there is no legal foundation for churches to prevent marriage in other arenas. This could only be obtained via a structural change to the constitution itself.
Churches that are willing to argue that religious liberty does not extend to marriage are also asserting their power to limit the “rights” of other churches to perform same-sex marriages, and could soon see their own liberties limited in other areas through operation of their own logic if the political winds shift.
Legally, not religiously, the institution of marriage is at a crossroads, and there are several ways that the matter could be resolved. First, all marriages could be reduced to nothing more than a civil contract with a separate non-legally recognized spiritual component. Secondly, the state could recognize the legal status of marriages between two consenting adults regardless of gender, and preserve the civil / religious nature of marriage and continue to preserve the broad discretion to marry or not presently enjoyed by churches.
Considering the most recent votes on marriage, I would like to offer a third possibility. Instead of secularism, could it be that religion will prevail over the state, casting a “theocratic” shadow over the nation? In the late 1800s, the church’s power to control marriage was used as the precedent to promote laws governing the other institution of creation, the Sabbath.* Could that happen again? Maybe this is slippery slope reasoning, but considering that religious fundamentalists have been arguing that the secular state will prevail over the church if left unchecked, it is not an unfair argument. Perhaps instead of a single slippery slope, we are at the peak of the roof, facing slopes in both directions.
In a future article I plan to explore the history of marriage further and its legal relationship to religious legislation, but for now, at the least we should recognize the need to discern the issues involved in this debate fully before placing liberty of conscience at risk. _________
An attorney, Michael Peabody is the editor of Religious Liberty.tv where this article also appears.
*The historical link between regulation of marriage and the legal basis for proposed sabbath legislation will be explored in more detail in a future article. For more on the issue of majoritarian control of fundamental rights, please read the prior essay, Raw Majority Power: Why Checks and Balances Matter.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/1981