Separating religious and civil marriage

Religious freedom is a core concern in the ongoing national debate over same-sex marriage. 

In addition to concerns about the effect same-sex marriage could have on family life and society, some worry that the state, under the guise of anti-discrimination laws, could one day compel priests and deacons to preside at same-sex ceremonies. 

Could a clearer separation between civil marriage — a union sanctioned by the state — and those blessed in a religious setting calm religious freedom concerns by presenting a compromise that both sides of the issue could live with? 

Marriage distinctions

In most European countries, including France, the Netherlands and Belgium, couples are required first to marry in a civil ceremony. They can then choose to have a religious wedding, which many couples on the increasingly secularized continent forgo. 

Several gay-rights organizations, such as the Human Rights Campaign, highlighted the civil-religious marriage distinction. Marriage equality, they said, is simply the government recognizing their unions, whether a church wants to bless their partnerships or not. 

“It is most useful to refer to marriage equality for committed gay and lesbian couples as civil marriage or obtaining a civil marriage license from city hall,” said Fred Sainz, vice president of communications and marketing for the Human Rights Campaign. 

In the six states that currently legalize same-sex marriage, including Washington, D.C., there are strict religious protections that specify churches do not have to marry same-sex couples, Sainz said. 

Also, just like in many European countries, to be legally married in the United States, all one needs is a valid civil marriage license, Sainz added. 

“You can have the most elaborate church wedding ever and not be legally married in the United States,” Sainz said. 

Redefining marriage

But that creates a false distinction in what marriage is, said Thomas Peters, cultural director for the National Organization for Marriage, which opposes any efforts to define marriage as anything other than one man and woman. 

Peters told OSV that trying to separate marriage from its religious and civil dimensions does not resolve religious liberty threats or prevent marriage from becoming unmoored from its foundation in the natural family. 

“I don’t think this distinction between civil and religious marriage makes any sense practically speaking,” Peters said. 

“This is a temporary distinction proponents of redefining marriage introduce and then, once civil marriage has been redefined, they then set about collapsing the two categories into each other again,” Peters said. “In European countries that have redefined marriage, the next step is to require all individuals [including ministers] who can issue civil marriage licenses that they also grant them to same-sex couples as well.”  

In late March, the European Court of Human Rights ruled that same-sex marriage is not a human right guaranteed by the European Convention on Human Rights. 

However, the European court also said that if same-sex couples were allowed to marry, then any church that offers wedding ceremonies would violate anti-discrimination laws if they refused to also marry same-sex couples. 

As in the United States, ministers in Great Britain are legally registered to witness marriages on behalf of the state. If that country legalizes same-sex marriage — Parliament is consulting on the issue — then that would cause problems for the churches in Great Britain, said Neil Addison, an attorney and the national director of the Thomas More Legal Centre in England. 

“[Churches] will either have to be willing to register same-sex marriages, or they may have to give up registering marriages all together and adopt the French system, with people having to have separate civil and religious ceremonies,” Addison told OSV, adding that the Church of England’s situation would be “particularly difficult to predict.” 

In the Netherlands, where same-sex marriage was legalized in 2001, Parliament voted in November to make it illegal for registrars to refuse to issue licenses to same-sex couples. 

Murky lines

Meanwhile, the National Confederation of Catholic Family Associations in France said in 2010 that the country’s civil unions law — which was passed in 1999 — did not pose a “real threat,” after previously warning that it could undermine marriage, according to published reports. 

Nicholas P. Cafardi, a civil and canon lawyer and a law professor at Duquesne University in Pittsburgh, told OSV that what confuses the marriage issue in the United States is that religious ministers are allowed to authorize marriages for the state. 

“We don’t make a clear distinction between civil and religious marriage,” said Cafardi, who added that they are “two really different things.” 

Cafardi said the First Amendment’s guarantee of religious freedom protects churches from blessing marriages they oppose, but are sanctioned civilly. For example, there are no laws that compel the Catholic Church to marry previously divorced people or couples of different faiths. 

“Civil marriage is a social construct,” said Cafardi, adding that other laws on the books already threaten the institution. 

“What could undermine marriage more than what no-fault divorce does?” Cafardi said. “The state allows spouses to walk away. That is an area where the civil law’s take on marriage does not match the Church’s view on marriage, and we’ve been forced to live with that in America. And very often those people come to the annulment courts, and the Church annuls those marriages. We’ve adapted to that.” 

Cafardi also said church leaders should “tread gingerly” on the same-sex marriage controversy, or else risk being typecast as bigots.  

Peters disagreed. 

“In my experience, you get the charge of bigot and hater hurled at you for simply stating your belief that marriage is the union of husband and wife. Being pro-marriage is not bigotry, that’s a common ground we have to secure to even have the debate,” Peters said. 

Threats to vulnerable

Helen Alvaré, an associate professor of law at George Mason University and an adviser to Pope Benedict XVI’s Pontifical Council for the Laity, told OSV that the most vulnerable Americans — the poor, new immigrants and racial minorities — would suffer in the long run if the Church were to relinquish its defense of marriage. 

“The last thing [the vulnerable] need is for religious people, and religious institutions — who have and practice a thick form of marital commitment, with a long history of overlap with civil marriage — to abandon the public square by removing the witness of marriage which we solemnize and practice as faithful, permanent and oriented to children,” Alvaré said. 

Father Michael Orsi, chaplain and research fellow in law and religion at Ave Maria University in Florida, said the Church has a moral obligation to teach what is good for people and society. Father Orsi said that trying to separate marriage into religious and civil categories is a “diversionary tactic” that ignores what marriage has always been in the natural law, and presents a false notion that only religious hang-ups prevent the government from legalizing same-sex marriage. 

“You don’t need divine revelation to tell you that marriage is good for society,” he said. 

Brian Fraga writes from Texas.