Given the speed at which state marriage laws are being overthrown by federal judges, Catholics and others are considering the possibility of separating out “civil” from “religious” marriage in the United States. Today, a Catholic priest (and other recognized religious figures) celebrating a wedding (and signing a marriage certificate) effects a civil marriage at the same time. This is not the case in every country. In South America, for example, couples who wish to be married must have a civil ceremony; they may also choose to be married in a church. There are reasons to favor and reasons to oppose such a separation. There are a lot of unknowns, too, which make reaching a conclusion difficult. Several factors counsel ending the “marriage” of religious and civil effects. A little background puts them into perspective.
Changes in law
From the beginning, U.S. family law was civil, not ecclesiastical. That is, neither ecclesiastical authorities nor courts controlled the formation or the dissolution of marriage, the assignment of parental rights or responsibilities, or any of the myriad other subjects of family law. At the same time, the contents of family law owed a great debt to Judeo-Christian notions of the family. Marriage at civil law, for example, was expected to be monogamous, permanent and procreative.
Family law has moved further and further from these norms, especially over the last 50 years. Laws discouraging nonmarital sex and childbearing faded out. No-fault divorce swept the 50 states. New reproductive technologies, abortion and birth control, interacting with changing social mores, separated children from marriage. Finally, judges redefined marriage as an emotionally and sexually intimate relationship of two persons (why two? no reason) and ordered states to grant marital recognition to two persons of the same sex. While the Supreme Court has not administered the coup de grâce, Justice Kennedy’s opinion in the case striking down a section of the Defense of Marriage Act (U.S. v. Windsor) could not have been more threatening. He suggested that denying marriage recognition to any two emotionally and sexually intimate persons is to demonstrate harmful animus, a “bare ... purpose to harm” other people. In short, civil marriage has experienced nothing less than a revolution. The gap between what it used to be and what it is today has grown wide. So, too, the gap between the Catholic sacrament of matrimony and civil marriage.
It is no wonder, then, that some might want to avoid in any way cooperating with civil marriage. Why associate what Catholics mean and intend by marriage with what Windsor means: a celebration solely of the affective and the sexual, unaccompanied by the two-in-one-flesh incarnation of the image of God and the welcoming of new life? Why let what we do in the sacrament stand alongside what is done in other civilly recognized marriages, as if identical? Do we not risk broadcasting the message that marriage might mean this, and also that?
Furthermore, a review of the history of family law, especially over the course of the last 50 to 60 years, tells a story of a body of law less and less concerned with protecting children’s human rights: their rights to know their mother and father; to be born into a stable marital family; and to be cared for as required by their vulnerability. Marriage law was the last area of family law designed to secure these rights. Now, judges for the most part (versus citizens) have dismantled this protection, too, by defining marriage as intrinsically unrelated to children. It is not a shock that some wish to react by putting a lot of daylight between this notion of marriage and the rich Catholic ideal. Some might even argue that this would give additional visibility to Catholic ideas, given how well-known are the Church’s countercultural stances on indissolubility and openness to life. This possibility is supported by the reaction in various Evangelical websites to media accounts suggesting that the recent synod was prepared to change Catholic teachings; there were more than a few meltdowns over the prospect that the biggest, strongest voice on the block for the goods of procreative, indissoluble marriage might go wobbly.
Being a witness
Yet the case for staying in the game has merit too. It is probably true that few confuse what Catholics mean by marriage with what the state means. For years, the state’s marriage contract has been far easier to break than a contract with a cellular phone company. Unilateral, no-fault divorce — with at most a one- to two-month delay after proceedings are begun — is the norm, which means that those marriage certificates priests have been signing for the last 50 years are almost not worth the paper they’re printed on, from the state’s perspective. Yet we have continued to sign them.
There is also the worrisome possibility that removing ourselves from civil marriage removes an important voice in the larger public discourse about marriage and in the lives of engaged couples. Regarding the public, part of our willingness to cooperate with state licensing and solemnization requirements is based upon our conviction that marriage is a natural phenomenon, comprehensible with and without religious lenses. Two people of opposite sexes who come to love one another naturally long for “forever” and “exclusively.” Their love makes new human life, which needs long-term care and stability in the family. A ceremony witnessed by the community elevates and seals these longings and responsibilities and commitments. The vows uttered at Catholic ceremonies — and the lives we expect from them — affirm all of this and more. The natural understanding of marriage, alongside the “more” of Catholic teaching, have arguably become a part of the general cultural understanding of marriage. To withdraw from civil marriage — to take our vows and our marriage preparation with us — might impoverish the general understanding of marriage. Certainly, too, we will not be welcome to opine about what civil marriage ought to be if we walk.
Speaking of marriage preparation, we need to think about the effect of a withdrawal on individual couples’ exposure to Catholic marriage teachings. While it is always possible that couples will continue to perceive a church wedding as more serious and beautiful than a civil ceremony (studies among poor women indicate this is so), it is also possible that some will decline to have two weddings, due to cost or time or other factors. Maybe they will be angry at the message they take from the Church’s withdrawal from civil marriage. But if they stay away, they would miss the opportunity to experience Catholic marriage preparation, preparation that is already good and getting better.
Surely, many will continue to want not only a “church wedding” but all the commitment and celebration of new life, and sacramental grace involved with the Catholic sacrament. But the risk is there. When a few states passed “covenant marriage” as a civil option, allowing couples to agree to make it harder to enter and harder to exit marriage, there were not a vast number of takers.
I don’t expect that clergy will be forced to perform same-sex marriages so long as the Supreme Court is willing to deliver honest interpretations of the First Amendment and the Religious Freedom Restoration Act. (Of course, with the shift of a vote or two, I could be wrong.) I am not so sanguine about the court’s willingness to create a constitutional right to same-sex marriage out of whole cloth. In any event, though, I would rather that the Church be ordered out of the conversation on the meaning of civil marriage than that we step aside voluntarily.
Helen Alvaré is a law professor at George Mason University.