Perry Dane, a Holy Secular Institution

• Publication year: 2009

A HOLY SECULAR INSTITUTION

Perry Dane^*

ABSTRACT

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 legal and political arguments regarding 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. The Article's overriding goal is to illuminate the playing field, not to score points for one side or the other.

INTRODUCTION ............................................................................................ 1125

I. VOICES ............................................................................................. 1133

II. MEANINGS, IMPLICATIONS, AND INSTITUTIONS ............................... 1136

A. Themes, Tropes, and Doctrines in the Meaning of Civil

Marriage ................................................................................... 1136

1. The Meaning of Religious Meaning ................................... 1137

2. The Meaning of Civil Marriage .......................................... 1145

B. Civil Marriage and Marriage Simpliciter ................................ 1156

C. Civil Marriage and Religious Rites .......................................... 1159

1. Holy (Civil) Matrimony ...................................................... 1159

2. The Unmarked State ........................................................... 1168

III. CONSEQUENCES ................................................................................ 1172

A. Stakes ........................................................................................ 1172

B. Arguments ................................................................................. 1175

1. Sufficient Reason ................................................................ 1175

2. Rightful Dignity .................................................................. 1178

3. The Coherence of Compromise .......................................... 1184

4. The Urgency of Now ........................................................... 1185

5. An Invitation ....................................................................... 1185

6. A Conclusion of Complexity ............................................... 1186

C. The Elephant Clause in the Room ............................................ 1187

1. Really Hard ........................................................................ 1187

2. Strictly Inseparate .............................................................. 1189

CONCLUSION ................................................................................................ 1191

POSTSCRIPT .................................................................................................. 1192

INTRODUCTION

For many Americans, the religious dimension of marriage is central to their conception of the institution. It should therefore be no surprise that, in the continuing controversy over same-sex marriage, religious arguments, sensibilities, ideas, and positions have figured on both sides of the debate.¹At least some activists, scholars, and judges have insisted, however, that, as long as the constitutional or policy question at hand is limited to civil marriage, any consideration of the religious dimension of marriage, or religious views about marriage, is just irrelevant.

Thus, for example, the conventional wisdom among many scholars is that

"[s]tate civil marriage is exactly that, a . . . civil (not religious) institution."²

More pithily and powerfully, Evan Wolfson, a long-time activist and analyst, and the founder and director of the "Freedom to Marry" organization,³argues that the "freedom-to-marry movement . . . is about legal rights, not diverse religious rites."⁴

Perhaps most consequentially, the Massachusetts Supreme Judicial Court, in its opinion in Goodridge v. Department of Public Health,⁵the landmark state constitutional law decision affirming the right of same-sex couples to enter into civil marriages, tried at several points to wall off the religious dimensions of marriage from its inquiry.⁶In the most important of these passages, at the start of the heart of its constitutional analysis, the court wrote: "We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution."⁷

American civil marriage is, to be sure, a secular institution embedded in a secular legal system. But the Goodridge court made a point of raising the ante, arguing that civil marriage is a wholly secular institution.⁸This claim that civil marriage is a "wholly secular institution" has an obvious rhetorical purpose. It implicitly acknowledges the religious salience of marriage. Otherwise, why make the point? But it suggests that religious arguments about civil marriage are just confused, guilty of a species of category mistake.⁹The implication is that if religious objectors to civil same-sex marriage really understood that the court was only considering the civil and secular side of marriage, and thus really understood what was and was not at stake in the decision, they might, like Emily Litella on Saturday Night Live, retreat from the debate with a meek "never mind."¹⁰

It is not entirely clear in exactly what sense civil marriage is, according to the Goodridge court, a "wholly secular institution." I can think of at least four or five possible readings.¹¹More important, it usually pays to be suspicious of any effort to wave a controversy away just by explaining it. As often as not, the proffered explanation will turn out to be just another position in the same old debate.¹²

This Article seeks to sort out, and to examine and critique, the notion that civil marriage is a "wholly secular institution." My conclusion is 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," with all its complications and contradictions, is a piece of intellectual and cultural "capital" common to both church and state. Its social and legal meaning has both secular and religious sources, and changes in that meaning would have both secular and religious implications.¹³Moreover, the institutions of "civil marriage" and "religious marriage" are not as easily divisible as many commentators and courts seem to believe. The civil law both recognizes and, in certain respects, seeks to control the religious dimensions of marriage. Conversely, the most prevalent and influential religious understandings of marriage in the United States hold that, while marriage is an institution ordained by God, only the state has the juridical authority to "marry" a couple, and that therefore the religious blessings of marriage depend on a sound and appropriate civil law of marriage. In that sense, "civil marriage" is much like the "civil" seven-day week-a cultural institution unexplainable apart from aspects of religious history, and whose elimination or distortion would render the continuing life of many of our religious traditions incredibly more difficult and awkward. In short, religious believers are legitimate stakeholders in any debate over the meaning of civil marriage.

All this is not to suggest that religious objectors should have a veto, in either the policy or constitutional debate, on the recognition of same-sex marriage in civil law. Such a conclusion would be absurd. For one thing, as noted at the start, there are religious voices on both sides of the marriage debate. In addition, to say that religious believers are legitimate participants in the debate does not imply that no other considerations are relevant or important. In particular, it does not dispose of separate arguments, grounded in both justice and practicality, in favor of same-sex marriage.

More generally, this Article does not reach any bottom-line conclusion on the political and constitutional controversy regarding same-sex marriage. Nor does it even argue that...