When the Pope is a better lawyer than Amy Coney Barrett

I had thought that we were basically done with the legality issues surrounding same-sex marriage in the United States, but the elevation of Judge Amy Coney Barrett to the Supreme Court and a recent Supreme Court dissent by Justices Alito and Thomas demonstrate that we still have “a failure to communicate” here. The right of LGBTQ people to cohabit legally in the United States is more fragile than I had thought.

A wide difference in perceptions of marriage law in the United States still exists over ten years after court rulings opened civil marriage to same-sex couples. To me, this illustrates how Americans still have not figured out that this one English word “marriage” has two distinct meanings in common use, and we largely fail to understand the critical implications of those differences. My view is that we really need, for the good of all segments of the society, to more clearly separate these two versions in the public square, perhaps requiring new language and clearer laws.

This post has been sitting in my queue for some time, but it was brought to the front by the news that even Pope Francis basically supports the crux of my argument that we should not be putting a religious test on the civil aspects of cohabitation law. From the Pope’s perspective, this actually protects religious practice from civil interference more than does imposing denomination-based religious dogma onto civil law. I don’t agree with the Pope in his belief that same-sex marriage represents “an anthropological regression,” but LGBTQ people and I are (still) free to reject the Pope’s definitions of “sin” at our own eternal peril.

On one hand, “marriage” refers to a long and evolving tradition of matrimonial ceremonies by a very wide diversity of religions, even in the United States. On the other hand, virtually all of the issues relating to marriage that wind up in the courts have to do with civil property and child welfare issues. The answers to these civil issues are typically not found in the world’s religious texts, and if they are, they are often embedded in egregiously patriarchal, Bronze-age language hardly useful for the complexities of today’s society.

Civil marriage and equal protection

Did you know that in the state of Colorado, the two people getting married can just “marry themselves” without any clergy or civil official “solemnizing” the wedding? The couple can just sign and send in the marriage license. On the other extreme of state practice, recent legislation in Tennessee prohibits “online ordained” individuals from solemnizing marriages, a statute passed because a large number of same-sex marriages were being performed by these “questionable” ministers. [1]

While most Americans still likely think of a wedding in its ceremonial sense, it is the myriad of civil laws relating to cohabitation that will most affect the couple in practical terms over the years. These laws include the basics of property ownership rights, inheritance priorities, and decision-making responsibility for children, healthcare, and financial choices, especially in the event of death or divorce.

While the various states have handled “common-law marriage” differently over the years, the reality is the very act of cohabiting, especially in an intimate relationship, has unavoidable legal consequences, no matter what you call the relationship. It is in the interest of the State that these issues are dealt with in a manner of equitable treatment and protection for all parties involved.

Indeed, it was the very clear statement of civil liberty and equal protection rights in the Iowa state constitution that virtually compelled a very conservative state Supreme Court to authorize same-sex weddings in 2009, with Iowa becoming the most unlikely of the early states to do so. The justices found that the legal complexities of intimate cohabitation happen regardless of the biological plumbing of the parties involved (my summation), and that the state of Iowa has a clear and compelling interest in protecting those rights for all of its citizens:

“If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded,” the Supreme Court said in agreeing that the 1998 law was unconstitutional.

The reality in our society is that the parties in a cohabiting relationship are often not acting with co-equal mutuality. In a traditional relationship, the male often exerts unequal power over the female in control over money and physical strength. However, society traditionally puts primary responsibility for the children in the hands of the mother, which often leads to an economic disadvantage in the absence of the father. The history of religious practice in the United States has long embedded unequal treatment of women into cohabitation law, Fourteenth Amendment equal protection be damned.

Because of that lack of co-equal mutuality, bad things can happen to the underdog party, and the State has a compelling interest in protecting that party in the relationship under state and federal equal protection statutes. This is the foundation of much of property inheritance law and court judgments, usually against men, for child expense maintenance, for instance.

In short, from a civil point of view, this thing called “marriage” is primarily about both the freedom to cohabit and the concomitant responsibility of the State (and individuals) to ensure that the legal complexities of this cohabitation do not create an exploitative situation. The reality is that there have always been people in same-sex cohabitation arrangements who have similarly been denied equal protection under these same laws in the past. We just pretended for decades that these relationships did not exist.

Religion and “holy matrimony”

Regardless of your evolutionary/Biblical timeline (I personally go with the “100 thousand years plus” version of human presence on the planet), we have been cohabiting and reproducing for a long time, both with and without some societal rite of “religious marriage.” There is no doubt that, in the United States, “holy matrimony” is deeply embedded in the history and culture, mostly in the form of variants of Christian traditions. Most people would likely be surprised, however, that their idea of a “traditional wedding” may not match well with actual practice in the past, which was often much more austere and informal than modern American nuptials.

Since the inception of the country, especially in areas dominated by a single religious sub-type, the tenets of the religious law of the majority have often imposed themselves directly into the civil law or at least into its practical implementation, often in conflict with equal protection statutes. Male dominance is implied in much of conservative religious theology, from Michelangelo’s bearded white, male God depicted on the ceiling of the Sistine Chapel (below) to the local Catholic parish and on to the elders of Salt Lake City. What the female Episcopalian from Massachusetts sees as abhorrent, the male Baptist from Alabama might well see as “normal.”

Michelangelo's God

Source: Wikipedia

Increasingly these local practices have lost dominance as civil laws are enforced. However, as noted in the opening examples, this unequal treatment under the law persists in many locales, and the underlying resentment of religious conservatives who have controlled the civil side of marriage is not going away quietly. For many of them, the notion of civil marriage law just does not exist, or is seen as clearly subservient to their own personal religious practice. And not just “for me, but also for thee.”

That pressure, usually most imposed upon women, can extend itself into the marital pair-up itself, into the matrimonial ceremony, and into her post-marriage personal freedom. Tradition, economic dependence, children, and family obligations bind both parties, but historically it is the women who have been more constrained in their choices.

Religion and the reality of divorce

It may be helpful to look for a minute at the opposite side of the marriage transaction to see what happens in actual practice. Almost every religious body in the United States, even the most conservative, has accommodated the prevalence of divorce among its members over the last fifty years in a variety of ways. This despite a very clear and harsh prohibition in the Christian New Testament’s gospel of Mark:

[Jesus] said to them, “Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10:11-12)

The later gospel of Matthew loosens that prohibition somewhat, but only on the grounds of “who cheats first.” And yet it is impossible to find a local congregation of any denomination that has not been untouched by divorce. As a Jesuit ethicist once taught me, at some point “morality must be based on reality.” That Jesuit was himself attached to a Catholic parish that had become a refuge for divorced and remarried Catholics, where they could receive sacraments from priests who “looked the other way” when anti-divorce directives came down from the Archbishop.

My point here is that American and European Christians have largely skated around their clearest scriptural marriage-related religious law. This is especially true for members of well-off congregations and parishes, who have long been able to access divorce, annulment and birth control while poorer congregants are forced to “bear the sin.” “The Church” has, for the most part, stopped trying to force its definition of divorce upon American courts. And they typically do not punish any “genetic evidence” of cohabitation before marriage either, another reality of the world in which we live. [2]

I won’t go into where the Bible does or does not address same-sex relationships, but suffice it to say that nothing in any translation you search is as clear as the divorce example. The reality is that “good Christians” divorce and “good Christians” are LGBTQ, often living in committed relationships. Indeed, many Christian denominations and variants of Judaism have figured this out already, embracing that diversity, yet the media often portrays this as a generically “Christian” problem. It is not. It is a problem of unequal power.

In all the discussions and charges thrown about real and potential “court packing,” I believe that this issue can be dealt with in one question: “How closely does the current makeup of American courts at all levels reflect the diversity of the American people?” The answer is an obvious “Not well at all!”

Toward the end of his life, Albert Einstein wrote, “What does a fish know about the water in which he swims all his life?” [3] It appears to me that we have at least four, and possibly more, Supreme Court Justices who are so deeply swimming in the waters of their elitist and religious culture that they cannot separate out the basic requirements of equal protection in a civil society. It is clearly time for some changes to be made.


  1. The most recent articles I can find on this legislation indicate that a judge had placed a stay on the law pending resolution of several court challenges to the new legislation.
  2. I have seen a parish register from the 19th century that showed the marriage of two of my own forebears and the christening of their firstborn child just a few days apart, so this is really nothing new.
  3. Einstein, Albert. Out of My Later Years. Secaucus, NJ: Citadel, 1956, p. 5.

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