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Freedom of religion and same-sex marriage

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In recent discussion of same-sex marriage, I've been pleased to see a particular term rising to new prominence: "civil marriage."

I think use of that term neatly encapsulates and clarifies a distinction that some opponents of same-sex marriage have been working to muddy: the distinction between marriage sanctioned by the government and religious marriage.

Nearly all discussions of same-sex marriage laws are, of course, talking exclusively about civil marriage. But those who argue against those laws are most often talking about religious marriage. And it's only been recently that I've seen same-sex marriage advocates start to regularly use the term "civil marriage" to make that distinction explicit. (Though it's entirely possible that people have been using that term for ages and I just haven't noticed.)

For example, Maine's LD 1020 (the same-sex marriage bill signed into law the other day) is titled "An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom."

I was reminded to mention this by an opinion piece from Bloomberg yesterday, which provides a useful analogy in passing: "The state can't force an Orthodox rabbi to marry Jew to non-Jew."

So maybe that's one way to reframe this argument:

Oh no! If non-Christian opposite-sex civil marriage were legal, then the state would force Christian churches to perform weddings of non-Christians! An atheist man and an atheist woman could force a church to perform a marriage ceremony for them, with all the power of the state behind them! Ministers and priests would be required by the government to perform marriage ceremonies that went against their consciences!

. . . Wait, what's that you say? Opposite-sex marriage for non-Christians is legal? And the state doesn't force Christian churches to perform any particular sort of weddings?

Oh.

Huh.

Note: it's important to remember that plenty of religious people, including plenty of Christians, are actually in favor of same-sex marriage, of the civil and/or religious varieties. My argument/analogy above isn't intended to suggest otherwise; it's addressed only to religious people (of any faith) who are concerned that legalizing same-sex civil marriage would force those churches that oppose same-sex religious marriage to perform such weddings.

3 Comments

There are a couple of things to separate (in my opinion), both as a matter of law and as a matter of rhetoric. First, it is absolutely the case that some opponents of same-sex marriages have been using the patently false argument that particular churches would be compelled to marry a sheep to a goat (to use the metaphor that was actually used to us when we were looking for an officiant). So that needs to be countered, and the idea of 'civil marriage' could well be part of that.

As another example, by the way, Catholics can legally divorce and remarry in this country, but the church has the right not only to refuse to bless the marriage (and the minister to refuse to officiate, and also they can refuse to rent the hall), but also the priest can refuse the sacrament to remarried Catholics. But there's still a fear that somebody will sue a church claiming that their civil rights have been violated by such a refusal, and that the Supreme Court will uphold that claim. No, seriously, stop laughing, people really do worry about that. And those people aren't going to be persuaded by the civil marriage talk, in fact, there is just the slightest ring of litigation about the phrase, for people who are looking for that.

OK, second point: while our law does not require a religious institution to perform a civil marriage, it does in some circumstances require that institution to recognize a civil marriage. To use the example of the Catholic church, a receptionist at a Catholic Hospital may be divorced and remarried, and the Hospital as an employer would be required to recognize that civil marriage and provide all the benefits that civilly married couples get. One of the fights in the CT legislature was over the circumstances in which different institutions and individuals would have to recognize a civil same-sex marriage. Some of the arguments were just crazy, some were an attempt to allow outright discrimination, and some were an attempt to work out issues that Catholics had been dealing with for years but that Protestants had never really thought about.

A third thing: there is also an idea or a feeling, I think mostly among younger people, that we should make a clear distinction between civil marriage and religious marriage, to the extent that we would no longer allow religious marriages, performed by church officials vested by their churches, to have civil status at all. This idea (it isn't even properly speaking a movement, and as far as I know isn't even being discussed in any state legislature) is naturally threatening to churches and their adherents. I wonder if the use of the phrase 'civil marriage' might become conflated with that threat, to the point that it would actually be counter-productive rather than persuasive.

All of which is just to say that while you do need to address arguments to religious people (of any faith) who are concerned that legalizing same-sex civil marriage would force those churches that oppose same-sex religious marriage to perform such weddings, those people (who are different one to another) will also have other concerns, overlapping with that one, and it's very tricky to address one concern narrowly, rather than a whole package of things at once (although one would think it would be the other way around).

Thanks,
-V.


Gee huh. ;) you're a little slow to the game on this issue--this is exactly the point we were talking about last fall, I thought--but I'm glad you're making it!


Vardibidian: Interesting, and good points; I hadn't known about a lot of that stuff. Particularly good point that being forced to recognize marriages of various sorts in various ways is both (a) a valid issue, and (b) an issue that already exists even in places without legally recognized same-sex marriage.

Still, I think that by and large, calling it "civil marriage" does more good than harm—the people who are already freaked out about it will likely remain so (or become even more so, for the reasons you mentioned), but people who aren't yet freaked out about it may be less likely to believe the "OMG, they're destroying religious freedom!" arguments if the response is "Nope, it says right here that we're only talking about civil marriage."

textjunkie: A quick search suggests that the term "civil marriage" has indeed appeared in my blog's pages dating back to 2003 or 2004, but almost always either in various folks' comments or in something I was quoting from; it's not a term that I remember paying much attention to, or that I remember seeing much emphasis on from others, before the last couple weeks, and I've almost never used it myself. I think I'm going to go out of my way to use it more often from now on.


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