72 Pages Posted: 4 Nov 2008 Last revised: 10 Jul 2009
Date Written: November 2, 2008
Religious arguments have figured on both sides of the debate over same-sex marriage. Some supporters have insisted, however, that, as long as the question at hand is limited to civil marriage, consideration of the religious dimension of marriage is just irrelevant. Thus, the Massachusetts high court, in its Goodridge opinion, wrote: "In Massachusetts, civil marriage is ... precisely what its name implies: a wholly secular institution."
American civil marriage is, to be sure, a secular institution. But the claim that it is a "wholly secular institution" suggests that religious arguments about civil marriage are just confused, guilty of a category mistake.
This article examines the notion that civil marriage is a "wholly secular institution." It concludes that the "secular" and "religious" meanings and institutions of marriage are so intermeshed in our history, legal and religious imagination, and doctrine that trying to wall off "civil marriage" from religious considerations is neither possible nor desirable. The idea of "marriage" is a piece of intellectual and cultural "capital" common to both church and state, and changes in the meaning of that idea would have both secular and religious implications. Moreover, the institutions of "civil" and "religious" marriage are not as easily divisible as many believe. Religious believers are legitimate stakeholders in any debate over the meaning of civil marriage, and the religious dimension of marriage can and should be relevant to the civil polity's understanding of the institution and its own arguments regarding the struggle for same-sex marriage.
All this is not to suggest that religious objectors should have a veto on the recognition of same-sex marriage in civil law. Indeed, this article does not reach any bottom-line conclusion on the marriage controversy. The intermeshing of the secular and religious dimensions of marriage does have practical consequences, which the article discusses. But those consequences cut both ways, in the manner of interlocking opposites. This article's overriding goal is to illuminate the playing field, not to score points for one side or the other.
Keywords: marriage, same-sex marriage, religion, religion and the law, family law, first amendment, establishment clause, equal protection, rational basis analysis, strict scrutiny
Suggested Citation: Suggested Citation
Dane, Perry, A Holy Secular Institution (November 2, 2008). Emory Law Journal, Vol. 58, pp. 1123-1194, 2009. Available at SSRN: https://ssrn.com/abstract=1293946