In Divided by God: America’s Church-State Problem, Noah Feldman explains that this disagreement is due in large part to the fact that, for so long, marriage was controlled jointly by churches and the state:
If the idea that marriage was both sacred and simultaneously regulated by civil law sounds strange to our ears, there is reason to think that American lawyers of the nineteenth centUry also sensed the tension. The source of the problem was that the roots of American law — including marriage law — lay in England, where church and state were united, not separate. Not until 1753 had marriage in England finally been taken away from the religious courts, and except for a brief period under Cromwell’s Puritan revolutionary rule, civil marriage was not fully available there until 1836.
The basic legal theory of marriage in England until then was that individual men and women had the legal capacity to marry each other by a simple act of consent, but the church must solemnize the marriage, and the state was entitled to insist on the church performing this role before it would recognize the union as binding.
Some people would seem to like this to be true today as well: no marriage would be valid without a church performing its role as well. Imagine, however, just how awful such a situation would be. Would non-Christians even be allowed to get married? Perhaps all houses of worship, whatever their faith, would be given the authority and responsibility to solemnize marriages.
In that case, though, there wouldn’t be a single marriage law covering everyone — the American public would be divided into religious ghettos, each with their own set of marriage laws and regulations, divorce laws, property inheritance laws, etc. That’s not a step forward, it’s about ten steps backwards.
The option of getting married without a priest’s blessing came to America with the Puritans of Massachusetts Bay Colony, who were second to none in their religious commitment and zeal but whose Congregationalist faith was animated by a strong dose of anticlericalism More aggressively Protestant than the Church of England, which they condemned for clinging too much to the old Catholic ways, the Massachusetts Puritans in 1646 passed a law making it a crime for anyone other than a magistrate — that is, a government official — to bring persons together in marriage.
To prohibit clergy from officiating at marriages was a radical move, but the Massachusetts Puritans were radical people, religious experimentalists living in a quasi-theocratic community at the frontier of the known World. The religious basis for this civilly sanctioned marriage was that an Anglican priest was not necessary to form a good marriage, either before the law or before God. By taking marriage away from the priests and the Anglican hierarchy, the Puritans flouted the established church whose reach they had fled, in the process reducing the power of the priesthood relative to the congregations.
Leave it to Massachusetts to allow people the right to get married without authorization from church officials — except that these were Massachusetts theocrats, not Massachusetts liberals. Well, I guess that Massachusetts theocrats merely look liberal when compared to modern-day conservative evangelicals.
In the minds of those who first introduced civil marriage to America, then, it was possible to bifurcate the formalities of marriage between consenting adults from the judgments of heaven. The legal requirement that a marriage be solemnized before an authorized person, whether government official or minister, simply reflected the practical requirement that the government keep records of who was married to whom, especially for purposes of establishing descent and property ownership.
The state demanded a monopoly on the authority to solemnize marriages in order to ensure that the legal protections of marriage applied — not because the state claimed to have any special authority in matters spiritual.
Marriage is a civil matter because there are so many civil issues involved: responsibility of parentage, inheritance, divorce, property ownership, health insurance, and so forth. It’s simply not possible for the government to ignore marriage because the marriage contract covers so many different and important things in people’s lives.
Government regulation of marriage is, for the most part, pretty minor — few restrictions are imposed and government involvement consists mostly of just keeping track of who is married to whom. It’s easier to get a marriage license than most other types of licenses which the government might issue.
Religious involvement in marriage is voluntary — religious institutions have no need to keep track of marriages in the way that the state does; more importantly, individual couples have no inherent need to seek approval or authorization from religious institutions if they want to marry. If people decide that marriage is a spiritual matter for them, such that the participation of a religious community and religious authorities is warranted, then they are free to do so. The state makes room for this by authorizing clergy to perform marriage ceremonies.
What the state cannot do, however, is require couples to seek religious authorization for their marriages. This doesn’t just include direct authorization, like getting the blessings of a priest, but it also includes indirect authorizations, like limiting marriages to only those sorts of couples which religious authorities deem appropriate. It would be wrong for the state to ban remarriage for divorced people because clergy disapprove of divorce and remarriage. It would be wrong for the state to ban interfaith or interracial marriages because of clergy disapproving of such mixing.
It is also wrong for the state to ban same-sex marriages because religious authorities insist that such marriages are contrary to their religious traditions and beliefs.
Quick Poll: Do you think that American law should define marriage according to the standards set by conservative, traditional Christianity?
- Yes. This is a Christian Nation and our laws should reflect Christian traditions, values, morals, and teachings. Anything else would be blasphemous.
- Yes, but only because it’s traditional and there is no obviously good reason for changing it yet.
- No, American law should be secular and should apply equally to everyone - no particular religion should be given special favors or incorporated into the laws everyone must follow.
- I don’t know.
- I don’t care.