A Look Ahead – by Jason Hines
About a month from now, the Supreme Court will rule on same-sex marriage for the second time in 3 years. Unlike the rulings the Court gave in 2013, these cases will decidedly settle the question of whether same-sex marriage is constitutional and also whether states have to honor same-sex marriages of residents that took place in other states. Many conservative Christian organizations consider same-sex marriage and its related concerns to be the religious liberty issue of our generation. Many churches and religious organizations have filed or will file amicus briefs in order to make arguments against allowing same-sex marriage in this country. Conservative Christians believe that same-sex marriage is a sin and that to allow it would have ramifications that would affect the free exercise of religion, not only for churches themselves, but also for congregants and their businesses. Furthermore, the acceptance of same-sex marriage in the minds of these Christians will lead to the destabilization of the American family, and in a more drastic sense, the downfall of our society.
At the opposite end of the spectrum, progressive Christians and those interested in church-state separation, who largely support same-sex marriage, also believe that it is an important religious liberty issue. These organizations also file amicus briefs with the Court, arguing that to prohibit gay marriage on religious grounds would be a violation of the Establishment Clause of the Constitution and that there are free exercise concerns attached to the fact that there is no state imprimatur to the same-sex marriages that some pastors would like to perform.
Of all the institutions and organizations that have an opinion on this matter, the only one that does not see this as a religious issue is the Supreme Court itself. When this case goes before the Court, religion will be conspicuously absent from the items that will be discussed. There will be no mention of the Free Exercise Clause, the Establishment Clause or anything pertaining to the Court’s jurisprudence on religion. For the Court this is not a religious issue but a potential case of discrimination. There is a substantial question as to whether there is equal protection under the law between straight and gay couples. There is an even more antiquated political issue about whether one state has to respect the marriages that took place legally in another state. As such the Court will pay no attention to the arguments that appeal to faith, either the Christian faith or any other.
This willful ignorance on the Court’s part underscores the fundamental distinction that supporters of same-sex marriage have not clearly delineated and that those against same-sex marriage seem willfully ignorant to grasp. Marriage as we have it in this country is a bipartite institution. There is civil marriage and religious marriage, and one does not have any substantive effect on the other. Therefore, when the Christian roots of marriage are mentioned as a justification for why marriage should not be changed in America, they are speaking of the wrong institution. The Christian roots of marriage (or whatever spiritual roots you desire) can still be found in whatever form of religious marriage any one decides to take part in. However, the civil form of marriage is a state institution, which must treat people equally, not discriminate, and provide the same services unless there is a very good rationale for discrimination on the basis of sex or sexual orientation. Moreover, the free exercise of religion itself makes it imperative that each faith decide the question of same-sex marriage on its own theological terms, and the state must be willing to respect those choices. But that question has nothing to do with the civil benefits that come from the social contract of marriage. It seems to me that the type of marriage that the Supreme Court will rule on next month is not the same marriage that religious conservatives are seeking to protect.
Within this understanding of the difference between the two types of marriage also lies the best workable solution to the same-sex marriage debate. As it currently stands, any religious marriage is taken as sufficient to create a civil marriage as well. That is why the traditional line at the conclusion of a wedding ceremony is “By the power invested in me by God and the state of…” If we can tear asunder these two ceremonies that God never put together, we could create a reality that would be pleasing to many on both sides. Instead of allowing the religious marriage ceremony to stand in for the civil, the state could require that everyone come have a civil ceremony regardless of whether the couple had a religious ceremony. We could make it a relatively low cost process (to help the citizen) but still mandate that each person do it (which would actually create a financial windfall for the state). We could even call all state ceremonies civil unions, in case the objection is to the literal word “marriage.”
Unfortunately, even the Court’s decision most likely will not end the debate over same-sex marriage in this country. However, I hope it changes the terms of the debate so that we can see civil marriage for what it is – a state question with no effect on the church.
Jason Hines is an attorney with a PhD in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at http://thehinesight.blogspot.com