With the Supreme Court taking on two major cases involving marriage equality this week, it might be useful to consider what marriage really is – and what it’s not – in a modern constitutional democracy like ours.
As a threshold matter, marriage in these United States is not a religious institution. It is a creation of the civil law. Period. Just like corporations would not exist in the absence of state laws that provide a legal method by which individuals can create and maintain them, marriages would not exist – not as legally recognizable entities – in the absence of laws that provide a means by which individuals can get married.
Yes, I know that marriage more or less began as a religious institution (although how do we really know how people formalized such relationships before the dawn of recorded history?). But so, too, did government itself. The idea that government should be secular and completely distinct from religious institutions is a fairly modern innovation. Yet, here we are: A country in which there exists, in the words of Thomas Jefferson, “a wall of separation between Church & State.”
Like our government, which is secular even though individuals within government are free to practice whatever religion they choose, marriage is, legally speaking, a secular institution. Nonetheless, the myth persists that marriage, even from a legal perspective, is somehow a hybrid of civil law and religious doctrine. That’s because people confuse the marriage ceremony – what the law sometimes refers to as “solemnization” – with marriage itself.
To use Illinois law as an example (and, in this area, the law is in substance fairly uniform throughout the country), the marriage provisions of our Marriage and Dissolution of Marriage Act provide that “[a] marriage between a man and a woman* licensed, solemnized and registered as provided in this Act is valid in this State.” 750 ILCS 5/201. The statute, of course, provides the requirements for obtaining a valid license (750 ILCS 5/202, 203), for registering marriages (750 ILCS 5/209(a)), and for maintaining records of marriages (750 ILCS 5/206) – all of which are matters handled exclusively by the state. But with regard to “solemnization,” meaning the marriage ceremony itself, the statute reads:
A marriage may be solemnized by a judge of a court of record, by a retired judge of a court of record, … by a county clerk in counties having 2,000,000 or more inhabitants, by a public official whose powers include solemnization of marriages, or in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his religious denomination, Indian Nation or Tribe or Native Group. Either the person solemnizing the marriage, or, if no individual acting alone solemnized the marriage, both parties to the marriage, shall complete the marriage certificate form and forward it to the county clerk within 10 days after such marriage is solemnized.
750 ILCS 5/209(a).
In other words, while solemnization is an act to be performed by a public official like a judge or a county clerk, out of respect for tradition the state also delegates that limited function to certain religious figures, if the individuals getting married want the solemnization of their marriage to take place in the context of a religious ceremony. But that’s really the extent of any religious involvement in marriage under the law.
And solemnization itself is essentially a perfunctory, albeit legally required, task. Solemnization of marriages is analogous to the old fashioned tradition of placing a seal on a contract in order for it to become binding; or, in more modern terms, having your signature notarized on a deed, or swearing an oath before testifying or executing an affidavit. It’s a formality the parties to a marriage are required to observe in order to demonstrate their actual consent to enter into a legally binding relationship. Like placing a seal on a contract, having your signature notarized, or taking an oath before testifying, solemnization is meant to show that the matter is a serious undertaking, that the parties understand what they’re getting into, and that they’re doing it knowingly, voluntarily and willingly.
Indeed, the Illinois Marriage and Dissolution of Marriage Act underscores that point in the subsection that immediately follows the subsection I quoted above:
The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed him to be so qualified or by the fact that the marriage was inadvertently solemnized in a county in Illinois other than the county where the license was issued.
750 ILCS 5/209(b).
In other words, what matters is not that the officiant was legally qualified to officiate your marriage; what matters is that you believed he or she was legally qualified to do so. Because so long as you believed the officiant was legally qualified, you were demonstrating that you understood what you were getting into and you entered into it voluntarily.
But the salient point is this: Solemnization is no more equivalent to marriage itself than a seal was the equivalent of the contract it was attached to, or the notarization of your signature on a deed is the equivalent of the deed itself. And every other aspect of marriage in our legal system – everything other than solemnization – is governed entirely by civil law.
One final point here. As the issue of marriage equality becomes more prominent in American political discourse, I’ve seen any number of people, including liberals, arguing that the government shouldn’t be involved in marriage in the first place. Again, I think this is based on the misconception that marriage is a religious thing, and that the government shouldn’t go wading into it for that reason. But it’s not a religious thing; to the contrary, it’s a legal relationship, like a contract or a partnership, where individuals have legal rights and legal obligations to one another. And that’s precisely where you want the government involved: To protect the rights of individuals and to enforce their obligations.
That doesn’t make marriage itself a government institution, any more than contracts, partnerships, other business entities, or voluntary associations are government institutions. It simply means the law grants you, as a party to a marriage, certain rights – just like the parties to a contract, or partners in a partnership, or shareholders of a private corporation, all have certain legal rights – and it provides you a means to enforce those rights if they’re violated. If, for example, a married couple buy a piece of property or jointly hold a bank account, they have certain legal rights and obligations in relation to that property or that bank account that non-married individuals don’t have in relation to jointly held property or bank accounts. Those rights (and obligations) exist by operation of law; without government “involvement” in marriage, your rights as a married individual wouldn’t exist.
Trust me. I’ve represented individuals who owned property with someone they thought they’d end up marrying, but didn’t. And, in each case, when the particular relationship failed and the two individuals went their separate ways, they faced a considerably more difficult set of legal challenges than they would have if they had been married.
So government “interference” with marriage is nothing more than a set of rules designed to protect the parties. And that’s before we even get to discussing parental rights and obligations in relation to children.
All of this is a round-about way of asking this basic question. When you consider marriage as a legal relationship, created and regulated by the state, with rights and obligations created by law and enforceable through the courts like any other legal relationship – which is exactly what marriage is in a country where church and state are separate – how can you possibly justify denying that legal relationship to committed gay and lesbian couples?
[Cross-posted at Angry Black Lady Chronicles]