Who governs the family? Marriage as a new test case of overlapping jurisdictions.

• Author: Witte, John, Jr.
• Position: Faulkner Law Review Symposium

"Overlapping jurisdictions"--the theme of this symposium--is at the heart of some of the most volatile issues that arise under the First Amendment and attendant federal and state statutes guaranteeing religious freedom. The notion of "overlapping jurisdictions" includes two broad clusters of issues. One cluster concerns claims of conscientious objection to general laws. These are headline issues today. May the government require a minister to marry a same-sex or interreligious couple, a medical doctor or hospital to perform an elective abortion or assisted-reproductive procedure, a pharmacist to fill a prescription for a contraceptive or a morning-after pill, or a private employer to carry medical insurance for the same prescription--when all of those required actions run counter to those parties' core claims of conscience or central commandments of their faith? May a religious organization dismiss or discipline its officials or members because of their sexual orientation or sexual practices, or because they had a divorce or abortion? May a private religious citizen refuse to photograph or cater a wedding, to rent an apartment or car, or offer a general service to someone whose lifestyle or relationships they find religiously or morally wanting--especially when the state's laws of civil rights and non-discrimination command otherwise? (1) These new contests join older cases of conscientious objection to participate in the military, to swear an oath, to work on one's Sabbath or other holy days, to receive medical treatment, or to hire religious outsiders. (2) At the heart of all these contests are competing claims between the laws of the individual conscience and the laws of the organized communities of which that individual is a part. Whose law governs in instances of irresolvable dispute: the law of the state, of the religious community, or of the individual's conscience?

A second cluster of issues of overlapping jurisdiction and religion concerns the governance of institutions that, by their nature, have both spiritual and secular, religious and political dimensions. The classic institutions are education and schooling, charity and social welfare, and marriage and family life. These are what the Western legal tradition has long called the res mixta publica--the hybrid institutions of both the private and public spheres, of both spiritual and secular life, where religious and political authorities have always shared (and often contested) jurisdiction: the power to make and enforce their own laws. (3) These mixed institutions remain forums for sharp jurisdictional contests between religious and political officials in the United States.

The most perennial and prominent such contests are between private religious schools and public state-run schools. Dozens of Supreme Court cases and thousands of lower court cases over the past century have sought to sort out the place of religion in public schools, the place of government in private schools, and the wavering lines between private and public school faculties, facilities, students, programs, and services. (4) This is a prime place to find hard cases of overlapping jurisdiction, with a headline case appearing every year or two.

Charity and social welfare are becoming hotter areas of conflict, too. Beginning in the mid-1990s, (5) federal and state social welfare policies shifted from the state-centric programs inaugurated in the New Deal era half a century earlier to new programs that allow religious communities to play a more prominent role in providing charitable relief both at home and abroad. One of the new programs called "faith-based initiatives"--government programs that fund religious and other private charities to deliver social welfare and emergency relief services on the government's behalf--is the subject of growing cultural and constitutional battles today. (6) Some object to government financing of religious charities, or government use of religious facilities and programs to dispense aid and services. Others object to government interference in the internal organization and operations of the religious charities that deliver the tax-funded services. Those battles will likely increase as the modern social welfare net continues to fray, and as non-state institutions, including religious ones, either step in or are pushed in to help with the growing social fallout and humanitarian needs of our day.

It is the third of these classic "mixed" institutions beyond schools and charities--that of marriage and the family--that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state--sometimes over the objection of religious groups, and sometimes at their insistence: straight versus gay marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more.

But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals in our democratic system of government--especially ancient and sophisticated religious legal systems based on Jewish halacha, Christian canon law, and Muslim Shari'a, among others that quietly govern a good number of the family law questions of religious believers. (7) The question of the legitimacy and authority of these faith-based family law systems is lurking just over the horizon of American family law. Muslim laws in particular have already become a newly controversial issue at state constitutional law. Controversies over the jurisdiction of these religious legal systems will become sharper in the years ahead as various religious individuals and groups--often dismayed by the marital fragility, family breakdown, and sexual lassitude of modern society--press for greater freedom to make judgments about sex, marriage, and family life based on their own religious beliefs.

1. RELIGION, MARRIAGE, AND THE STATE

   For many religious people today--and for many nonreligious people, too--marriage is "more than a mere contract." (8) It is not merely a private contract between two individuals but also an important familial, communal, and even spiritual event. It is not merely an avenue by which the state confers status benefits and burdens on a couple, but also a unique marker of fundamental change in a person's identity and responsibility within his or her community. For many people, the proper formation of a marriage thus requires more than compliance with state procedural forms of adequate notice, consent, licensing, and registration. It also requires a religious ceremony before a qualified officiant who solemnizes and consecrates the union, with witnesses and a celebrating community looking on and promising to help the new couple in their life together and in their (hoped-for) roles as parents. For many people, these communal and ceremonial dimensions of marriage are more important as a religious matter than a civil matter. Similarly for them, a marital dissolution is not valid unless and until granted by competent religious authorities on adequate grounds that are proven through appropriate procedures, recognized and validated within their community. For such people, a statement by the state--of either marriage or divorce--is simply not morally weighty or conclusive enough to have binding effect. (9)

   This is partly because, as Ayelet Shachar and others have argued, individuals exercise complex "citizenships" as members of multiple communities. (10) They frequently possess strong citizenship affiliations to a religious group while also possessing a citizenship affiliation to the civil state. If those two communities lack alignment on a critical matter such as marriage or divorce, individuals may feel competing normative pulls. It is not a given that the normative stance of state law will control. (11) Sometimes the "unofficial law" of the religious or cultural community has a stronger hold on individuals than does the sanctioned official civil law of the secular polity. (12)

   1. Protestant Dilemmas

      For many conservative Christians today, among other cultural conservatives, the norms of sex, marriage, and family in liberal society stand increasingly unaligned with traditional Christian norms. Until recently, American family law generally reflected Christian norms, especially Protestant norms of sex, marriage, and family life. (13) Marriage was limited to one man and one woman with the freedom, fitness, and capacity to marry each other. The parties had to be of marriageable age and without prohibited degrees of consanguinity or affinity. A priest or pastor was vested with the authority to preside over the wedding on behalf of both the church and the state. Divorce was available only for proven hard fault, with ongoing obligations of care and support for the innocent spouse and dependent children.

      This congruence between state law and marital theology corresponded to basic Protestant beliefs that the state's law itself had a constructive teaching function for society (concerning the ideals and goods of marriage) as well as a restrictive boundary function for its members (concerning who may or may not marry or divorce). (14) American Protestants historically did not maintain church courts to govern their marriage disputes--unlike minority Jewish and Catholic communities who maintained their beth din and consistory courts with the gradual acquiescence of the states in some ways. (15) Instead, majority Protestant groups were content to put jurisdiction over marriage and divorce in the hands of elected government officials, who were presumed to be Christians or, at least, would maintain Christian standards of morality.

      This system of church-state cooperation in the governance of marriage worked well enough for most American Protestants until the 1950s. But with the sexual revolution of the culture...