Disentangled marriage means religious freedom

Hillel Y. Levin is an associate professor of Law at the University of Georgia School of Law.

Gov. Nathan Deal did the right thing by vetoing HB 757, which would have enshrined the right of certain institutions and individuals to discriminate on the basis of sexual orientation. But the debate over religious freedom in an era of same-sex marriage and changing sexual mores is far from over. One persistent issue concerns whether a person who performs marriages can refuse to perform a same-sex marriage. But there is a way to avoid the ugly debates over this divisive question that would protect everyone’s interests: disentangle civil marriage and religious marriage.

The current system for getting married, in which a religious leader’s pronouncement can convey a critical legal status, is the product of historical circumstances that no longer apply. In fact, there is no other area in which the state delegates such an important legal function to religious leaders.

Until the modern period there was little concept of separation between church and state. In previous times, the institution of civil marriage emerged from the religious traditions of marriage, and the state simply followed religious practices. Over time, as marriage came to carry more and more legal implications, and as people were increasingly able to live without religious beliefs and apart from religious communities, fissures began to develop between the two institutions of civil and religious marriage. The law dealt with questions that arose on an ad hoc basis, but so long as the legal and religious aspects of marriage substantially overlapped, there was little reason to draw a firm line between the two.

Religious leaders were never especially interested in changing this system. And why should they have been? So long as society generally reflected and took cues from mainstream religious culture, those groups were happy to keep the two masters—Law and Religion—entangled. Therefore, notwithstanding the American principle of separation of church and state and the peculiarity of having clergy perform this legal function, there was no catalyst for change.

But what was once a tolerable idiosyncrasy is fast becoming a divisive anachronism. As law and religion increasingly come into conflict over issues like same-sex marriage, gender identity, and sexual mores more generally, it is more important than ever to clarify that civil status and religious status are distinct. And, as mainstream conservative religious groups are increasingly alienated from secular society, they have a newfound interest in separating religion from the state in order to prevent confusion between the two or, worse, dilution and corruption of their religion.

The legislature should now adopt a new approach. Religious leaders must be permitted to perform pretty much whatever religious ceremonies they want between consenting adults, and to decline to perform any religious ceremony that offends their religious beliefs. None of these relationships would have the legal status of marriage, but if they are important to a person's religious identity, beliefs, or status, the law should not stand in the way.

Thus, a religious leader who believes that same-sex marriage is sinful will never have a crisis of conscience pitting religious beliefs against state law. He could simply refuse. Likewise, a religious group that has a more expansive view could follow its own religious beliefs and consecrate the relationships it considers sacred. These could include recognition of a whole range of relationships, whether heterosexual, same-sex, polyamorous, or anything else. Religious groups can call these relationships marriages, or something else altogether. The law will have no interest in policing these relationships because they are strictly religious, rather than civil, in nature.

On the other hand, civil marriage would be best reframed as a bundle of contracts between two private individuals and the state, rather than anything sacred. A couple that desires the legal rights and responsibilities of civil marriage would go through a purely legal process—just as anyone would have to go through a legal process to obtain a driver's license, receive social security, purchase property or pay taxes. The civil marriage process might require a ceremony conducted by a justice of the peace, some paperwork at town hall, or even just an internet application. But a religious ceremony would be neither necessary nor sufficient. Indeed, it would be altogether irrelvant.

Importantly, only some relationships—those between two consenting, unrelated, and unmarried adults—will qualify for civil marriage, as the Supreme Court has mandated, because they serve its core functions: promoting stability, establishing legal bonds that clarify duties and rights, and providing a committed family unit conducive to the rearing of children. But anyone who meets these legal criteria can legally marry, and the process for doing so must be free of discrimination.

Instead of wasting its time in yet another session engaging in a zero-sum war over this issue, the Georgia Legislature should lead the nation by adopting this new approach to marriage that protects everyone as equal citizens, regardless of their faith, while simultaneously affirming the right of religious believers to be as free from state entanglement as possible.