Same-sex marriage should not be in the news again. But Supreme Court Justice Clarence Thomas’s concurring opinion in the recent Dobbs v. Jackson Women’s Health decision has clearly invited states, as they did with Roe v. Wade challenges, to challenge their own 2015 Obergefell v. Hodges decision that enabled same-sex marriages nationwide. Both Justices Thomas and Alito, have recently been making inflammatory public statements right out of the Christian Nationalist playbook.

While certainly we need more secure legislation to ensure same-sex civil rights, we also need to “re-think” the long-standing lack of a “wall between church and state” when it comes to marriage, which is the primary cause of challenges to equal protection in cohabitation issues. This is my attempt at a “re-think,” and that contemplation starts with realizing that marriage has two overlapping definitions in the United States, one legal and one religious, that people too often conflate.

When some people say “marriage” they are referring to a religious rite with traditions, rules, and obligations defined by their particular sectarian faith. Legally, however, marriage is a contract controlling unavoidable issues surrounding cohabitation, especially responsibility and representation over children, property, and health care decisions. Unfortunately, both sides cross over into the other’s definition far too frequently.

As I have recently noted, my spouse and I were married in a simple church ceremony later on the same day as the infamous Watergate break-in, fifty years ago this past June. We had, in preparation, sat through obligatory pre-marital counseling sessions with our minister, learning what it meant to be married “in God’s eyes” according to our religious tradition. But nowhere in that discussion was there any mention that we were also effectively signing up for one of the most complex civil contracts that most people ever commit to. We are not alone in this experience; indeed, the vast majority of people getting married likely have only vague knowledge of the civil contract terms being secured.

We have been fortunate; the messiest clauses in that civil marriage contract have never been invoked, but most marriages do not last as long as ours. Long ago (and in a very different time) Jane Bryant Quinn wrote in her longstanding Newsweek financial advice column (perhaps partially in jest) that purely for practical reasons couples should register the deed to their house in the name of the wife. Her reasoning was that the statistical odds favored either the husband dying first or the marriage ending in divorce, in which case the wife typically gets the house anyway. Divvying up the house equity is only one of the many issues controlled by civil marriage law, whether necessitated by death of one spouse or divorce. God has said little on that matter.

What is “solemnization” anyway?

There are not many contracts that most of us enter in which we need to publicly state our contractual commitment in front of some kind of authority who can “bless” the contract. I call this the “magic wand” that we usually require even in purely civil marriage ceremonies.

When I was asked to perform a wedding in Texas back in the 1990s (and this is perhaps no longer the case), my phone call to the county clerk regarding their solemnization requirements was answered with an Ann Richards-soundalike: “Honey, are you a minister of the Gospel?” On the other end of the “solemnization spectrum,” two people of either sex getting married in Colorado can, since 2016, “marry themselves” without any clergy or civil official solemnizing their wedding. The couple can just sign the marriage license and send it in. 

Judges and other officers of the court have often fulfilled this solemnization role for civil marriage ceremonies. In the early 1970s and barely out of my teens, I was asked by a co-worker, whom I barely knew, if I had a suit jacket. He was getting married that afternoon (on very short notice, if you know what I mean) and needed a witness. A stern-looking judge presided over the ceremony in the same grand Marquette, Michigan, courtroom featured in the 1959 Otto Preminger/Jimmy Stewart film Anatomy of a Murder which, as an audio-visual technician, I had recently screened for a local audience. As I recall, the judge’s remarks were more sermonette directed to the young couple than legal instruction.

The Marquette County, Michigan, Courthouse in “Anatomy of a Murder.”

My contention is that both of these traditional solemnization rites were flawed. A minister should have no greater right than any other adult citizen to literally sign off on a civil marriage contract. A certification from a religious authority makes for a constitutionally awkward civil “deputy badge.” To confer that privilege ties a qualifying religious faith too closely to the governmental establishment of religion,especially when only some religions are recognized. And that well-intentioned Michigan judge was perhaps driving outside of his lane by inserting some “quasi-religious” mysticism into a civil ceremony. I personally know a now-retired judge who would get very “religious language heavy” in his ceremonies.

While many states now have provisions for “ordinary folks” to solemnize weddings, the religious qualifications of the “solemnizer” remains in legal limbo in Tennessee. In 2019, a law was passed preventing people with ordination credentials obtained on the internet from solemnizing weddings, reportedly due to “too many” same-sex marriages being conducted by these ministers. As of June 2022, this law has been stayed pending a lawsuit against county clerks by online certification providers. In short, Tennessee law still insists that marriage ceremonies have some kind of state-approved religious component unless performed by an officer of the court.

“Holy matrimony” is different from civil cohabitation

The most vocal opponents of civil same-sex marriage have a difficult time expressing their viewpoint without bring God and their religious tradition into the picture.  Protestant Christian references to “the way marriage was meant to be” are invariably grounded in scriptural references, most particularly in a literal interpretation of the Biblical book of Genesis.

“But for Adam no suitable helper was found. So the Lord God caused the man to fall into a deep sleep; and while he was sleeping, he took one of the man’s ribs and then closed up the place with flesh. Then the Lord God made a woman from the rib he had taken out of the man, and he brought her to the man…That is why a man leaves his father and mother and is united to his wife, and they become one flesh.”

Interestingly, formal Protestant marriage theology does not typically go much beyond that, even though there is much tradition in ceremonies. Catholics and Latter Day Saints, on the other hand, have deep theological traditions regarding the religious nature of marriage. Their sectarian rites are much more complex than typical Protestant weddings and include theologies that likely make many of those Protestants uncomfortable.

The marriage theologies and traditions of the many other religious traditions represented by American citizens are yet even more diverse. And from a scientific point of view, human evolution just did not happen in any manner similar to the Genesis scripture. Civil marriage, recognized by the laws and the courts, is just profoundly different from “holy matrimony” in numerous ways.

The legal complexities of cohabitation

It is now very common for couples to “cohabit” without benefit of religious recognition of marriage, a practice that was still quite scandalous in my community as recently as in my Watergate wedding era. Indeed, the percentage of couples who enter formal marriage prior to some very intimate “marital contact” is likely very small these days; most of our marriage ceremony traditions are very much for public show only, and are rooted in days long since passed. Only seven states and the District of Columbia still recognize “common law marriage” as a specific legal arrangement for couples who choose to avoid any ceremony at all. Regardless, the state does have a compelling interest in cohabitation with or without legal or church-sanctioned marriage.

Cohabitation often leads to complex consequences requiring state intervention. The two most common complexities of cohabitation are (1) the care of children arising out of said cohabitation and (2) the resolution of property ownership conflicts when the cohabitation ends. Other issues include the inheritance of property upon a death, responsibility for incurred debts, and the right to represent (and accompany) another in critical medical situations. There are dozens of other instances where you must disclose your spouse in public records, from tax records to registering your children in school.

It is clearly in the interest of the State (and sometimes enshrined in individual state constitutions) that these issues are dealt with in a manner of equitable treatment and protection for all parties involved. It is highly likely that one person in that cohabitation arrangement has significantly more personal or financial power than the other, thus the high potential for equity issues. Historically, women without good lawyers have usually drawn the short straw in marital breakups, but even in same-sex relationships an imbalance of economic power is all too common. And any children need civil protection as well.

A very conservative Supreme Court in Iowa surprisingly made that state one of the first to recognize same-sex marriages under their state constitution’s equal protection provisions in 2009. Said the court in declaring that a marriage 1998 law was unconstitutional:

“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.”

That said, several of those Iowa justices lost their positions in subsequent elections, and the Alito-Thomas Supreme Court has, as in the Dobbs decision, teed up a road map for challenging Obergefell v. Hodges beginning in the state courts.

The resolution is obvious

Evangelical Christians would never allow Latter Day Saint or Jewish marital law to bind them. They should clearly then respect the same freedom coming from the other side. And despite attempts by Justices Thomas and Alito to enforce religious dogma on women of reproductive age, there is no constitutional reason why non-religious Americans need to abide by ages-old sectarian religious traditions based on religious myth. I like to separate religious ethic from dogma. My own marriage is grounded in our shared religious tradition’s longstanding ethic of mutuality and equal worth. Genesis/Eden-based dogma, on the other hand, has no hold on us.

The only equitable solution here is to cleave a clearer line between religious matrimony and civil marriage in the United States. State cohabitation laws and practices that favor a particular religion should be declared invalid, and remaining state marriage laws need to be validated for their adherence to constitutional equal protection rights for all parties. This obviously allows same-sex partners to create legally binding and protected cohabitation arrangements equal to those of any male-female couple.

At the same time, churches should be free to refuse to “sanctify” marital arrangements that do not fit their theologies, and to approve those that do pass doctrinal muster, as long as they do not run afoul of constitutional equal protection of the parties. I argue that the primary reason why my approach does not sanction polygamy and similar arrangements is because it is virtually impossible to find polygamous arrangements where all the spouses truly hold equal economic rights and freedom of movement under the law, especially when children enter into the picture. History is our guide here, and it is not pretty.

So yes, this may allow a church to marry people to their dogs, but the only courtroom but the only courtroom in which that contract needs to stand up is God’s. The rest of us can ignore it.

Related posts:

• When the Pope is a better lawyer than Amy Coney Barrett
• Diversions: When Jimmy Stewart played a Yooper lawyer
• Separating the ethic from the dogma