Clarke Guest Post, "Religious Marriage and Legal Marriage and Freedom"

Here is a guest post by Brian Clarke of Charlotte School of Law on a topic of substantial interest in North Carolina these day: a proposed constitutional amendment banning gay marriage, which will be voted on next week.

Marriage. 

This word is causing a lot of fuss these days.  Around the state and across the country, well-meaning people are debating what this word means and whether North Carolina should codify one very narrow view of marriage and domestic partnership into its Constitution.  Newspapers across North Carolina and the country have weighed in against Amendment One.  North Carolina and the word “marriage” are clearly in the spotlight.  As a result, I decided to look at the word marriage, which seems to be at the heart of the rhetoric surrounding Amendment One (notwithstanding the fact that Amendment One’s plain language and potential impact go far beyond marriage). 

“Marriage” appears, at first glance, to be a simple word with a simple meaning.  Brides and grooms.  Husbands and wives.  But the meaning of the word is colored largely by the person reading or hearing it.  For some, “marriage” conjures images of the Bible and solemn religious ceremonies.  In others it may cause a smile as they think of their spouse.  Some may associate it with parties and good times with friends.  In still others, it may trigger a grimace of regret and pain.  A small group of folks may think of the hysterical speech in “The Princess Bride” given by the clergyman with a speech impediment (“Mawwage, that bwessed awwangement”).  Whether it is joy, love, fear, or sadness (or even humor), marriage is a word that is associated with many different emotions.  With the current debate on Amendment One, the emotional connection to the word “marriage” is, all too often, front and center.  Many people discuss marriage – and thus Amendment One – in a very emotional way.  And of course that is OK, as I have said, it is an emotionally significant word. 

However, the decision to amend the North Carolina Constitution should not be based on emotion.  As I think any adult can attest, decisions made on the basis of emotion are often not the best decisions and are decisions we often regret rather quickly.  This can be true when the decision is based on a positive emotion like love (or lust), but is far more often the case when the decision is based on a negative emotion like fear or hate or insecurity or jealousy.  At least in my experience, the best decisions are rational and logical and based on facts, not emotions. 

So, let us look at “marriage” in a rational and logical way. 

What is “marriage”?  In the United States, the word “marriage” refers to two distinct things.  First, “marriage” is a religious ceremony whereby two people are joined as partners in the eyes of their God and/or church.  I will call this “Religious Marriage.”  Second, “marriage” is a legal relationship whereby the government recognizes and confers legal rights upon two people who desire to join together and meet a set of government mandated criteria.  I will call this “Legal Marriage.”[1] 

Religious Marriage and Legal Marriage are separate and distinct relationships.  A couple need not be in a Religious Marriage in order to be in a Legal Marriage.  Likewise, a couple need not be in a Legal Marriage to be in a Religious Marriage. 

For example, any magistrate may perform a Legal Marriage in North Carolina.  See N.C. Gen. Stat. § 51-1(1).  All that is required is a man and a woman who meet the statutory requirements, obtain a marriage license, and, in the presence of a magistrate, take each other as husband and wife.  No religious ceremony need occur and Religious Marriage is neither necessary nor required.  Adherence to any particular religious creed or custom is unnecessary (and would likely violate the Establishment Clause of the First Amendment to the U.S. Constitution).  Every Legal Marriage is a civil marriage, as that is what the law recognizes.  A Legal Marriage may also be a Religious Marriage, but it is not required. 

On the flip side, some religions permit plural marriage or polygamy, for example, some Mormon sects (see “Sister Wives” on TLC or “Big Love” on HBO), Islam, a few Jewish sects, and many tribal religions around the world.  Thus, for followers of these religions, it would be perfectly acceptable for one man to have multiple wives.  However, North Carolina law (and laws of every other state in the U.S.) prohibit plural marriage (polygamy).  A polygamous Religious Marriage – even if properly ordained and sanctified under the tenets of that religion– is not a Legal Marriage in N.C. or any other state. 

Even a routine Religious Marriage is not automatically a Legal Marriage.  For someone to have both a Religious Marriage and a Legal Marriage, additional steps are required – primarily ensuring that the couple can legally marry and requiring that the minister perform some purely secular bureaucratic functions, like filling out and signing a marriage license.  

But if a minister can preside over each, doesn’t this combine Religious Marriage and Legal Marriage?  No.  They remain separate and distinct, despite some overlap.  Many years ago N.C. and many other states decided to make the process for prospective spouses to obtain a Legal Marriage easier by allowing a couple to obtain a Religious Marriage and a Legal Marriage at the same time.  At least as far back as 1871, when the core of the current N.C. marriage statute was enacted, ministers have been able to perform both Religious Marriages and Legal Marriages.  See N.C. Gen. Stat. §§ 51-1 and 51-16.  When I was married in 2000, our Episcopal priest performed the Religious Marriage ceremony and then, shortly thereafter, he conducted the Legal Marriage, which required my wife and I, our two witnesses and the priest to sign our marriage license certificate.  We then filed the marriage license certificate with Registrar of Deeds in Dare County, N.C.   Our Episcopal priest thus presided over both our Religious Marriage and our secular Legal Marriage.  

In other countries, there is a strict distinction between Religious Marriage and Legal Marriage. Ministers only perform Religious Marriages.  Afterward, a magistrate or other public official conducts the Legal Marriage, which is a purely secular, bureaucratic act.  Here, however, priests and ministers do both.  I think this leads to some of the confusion and the belief that Religious Marriage and Legal Marriage are the same.  However, as I hopefully have illustrated, they are quite different.    

Supporters of Amendment One keep talking about the “sanctity of marriage” and “holy matrimony” and the Christian Bible.  They are clearly talking about Religious Marriage not Legal Marriage.  So, would Amendment One have any impact on Religious Marriage?  None whatsoever.  Why?  Because the North Carolina Constitution is not a religious document; it is a legal document.  Neither North Carolina, any other state, nor the United States of America has the ability to dictate the definition of Religious Marriage.  No government in this country can require a church to marry anyone against its faith.  Government simply has no business in the realm of Religious Marriage. 

Similarly, no particular religion should dictate the rules for Legal Marriage.  The United States, which was originally settled by persecuted religious minorities from Europe (Puritans, Huguenots, Anabaptists, Quakers, Moravians), was designed as a country where religious freedom was paramount.  The separation of church and state is part of the founding philosophy of this country.  (See McCollum v. Board of Education, 333 U.S. 203 (1948) (quoting Thomas Jefferson’s Letter to the Danbury Baptist Association dated Jan. 1, 1802); Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878) (same)).  While the religious beliefs and moral values of executives, legislators and judges naturally inform their decision making, religious doctrine itself has no place in our civil laws. 

But you may say, this is a Christian nation, so Christian beliefs should be embodied in our laws.  As I attempt to illustrate below, to do so would be contrary both to intent of the Founders of this country and the Constitution.  There are many countries where Christianity is the state religion, including, among others, Costa Rica, Liechtenstein, Monaco, Malta, Iceland, and Norway.  The United States, however, is not one of them. 

To clarify this issue, it is important to consider both why the Founding Fathers opted for a Constitutional Republic form of government (not a Democracy and not a Christian theocracy) for the United States and the purpose, in that form government, played by the Constitution. 

One of the primary purposes of the Constitutional Republic form of government that we enjoy in the United States and in North Carolina is that the minority is protected from the desires of the majority.  James Madison addressed this issue explicitly in Federalist No. 10 in explaining the problem of “factions” in a pure democracy:  “When a majority is included in a faction, [a pure democracy] . . . enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our [Constitution is] directed.”  Why did the Founders make this choice?  Because many of the people who originally settled this country were “minorities” in their home countries – whether religious, political, philosophical, or otherwise – and had experienced, first hand, the tyranny of a majority.  For example, many of the early settlers in the North Carolina Piedmont were Quakers, a Christian denomination who were officially persecuted in England under the Quaker Act of 1662 and the Conventicle Act of 1664 as “blasphemers” because of their refusal to conform their religious beliefs to the accepted Anglican theology.  It was because of experiences like this that our the Founders opted for this form of government.  In their view, the best way to ensure freedom for ALL citizens was to ensure that the beliefs of the majority could not limit the freedom of the minority. 

But does Amendment One even reflect a “majority” view?  The religious arguments in support of Amendment One are based largely on a specific religious tradition, theologically conservative Christianity.  Not all Christians believe in the same version of Christianity or of the literal interpretation of the Bible.  The Episcopal Bishop of the Diocese of North Carolina, Michael B. Curry, has spoken eloquently and theologically against Amendment One.  Numerous other religious leaders of various Christian denominations – Baptist, Methodist, Unitarian, United Church of Christ and many others – have spoken out against Amendment One.  Jewish leaders and Rabbis throughout North Carolina have also spoken against Amendment One.  Polling data also supports the idea that Amendment One, even if it passes, will not truly represent the “majority” view as a majority of North Carolinians support “civil unions” for same-sex and unmarried opposite sex couples. 

However, even if a majority of North Carolinians believed that it was appropriate to enshrine a specific set of religious beliefs in our Constitution, it would still be contrary to our form of government and the social compact on which it is based.  Part of the reason for this is the purpose of a “Constitution” in a Constitutional Republic.  A Constitution does two things.  First, it outlines the structure of the government, allocates powers and establishes the system of checks-and-balances that exist between the branches.  Second, a Constitution guarantees certain rights.  A Constitution does NOT limit or take away rights. 

The U.S. Constitution guarantees Americans a variety of rights:  Due Process of Law before any deprivation of life, liberty or property; freedom from unreasonable searches and seizures; Equal Protection of the laws; the right to vote; the right to counsel and to a speedy and public trial, and many others.  It also prohibits government from making laws that infringe on certain basic rights like Freedom of Speech, Freedom of the Press, Freedom of Assembly; and Freedom of Religion.  The one amendment to the U.S. Constitution which took away a right – the Eighteenth Amendment with its prohibition on the manufacture, sale, transportation, importation or exportation of alcoholic beverages – was a disaster and was repealed 14 years later by the Twenty-First Amendment. 

Similarly, the current version of the North Carolina Constitution guarantees various rights to the citizens of North Carolina.  It contains no provision that limits individual rights.  In the past, the North Carolina Constitution has limited individual rights and has even specifically limited marriage rights.  For example, the N.C. Constitution previously made illegal any marriage between “a white person and a negro, or between a white person and a person of negro descent to the third generation inclusive.”  This provision is disturbingly similar to Amendment One.  In retrospect, codifying a prohibition on interracial marriage in the N.C. Constitution was, at best, seriously misguided.  In a generation or less, Amendment One will appear equally as misguided.  Even N.C. Speaker of the House Thom Tillis (R-Mecklenburg) agrees that Amendment One, even if passed, will likely be repealed within a generation. 

In short the Constitutional Republic crafted by the Founders and carefully codified in the U.S. Constitution and, later, in the N.C. Constitution was designed to ensure that a majority could not take away the rights of a minority.  A member of the minority is every bit as free and every bit as entitled to Freedom as a member of the majority.  Amending the N.C. Constitution, based simply on a majority vote, to take away the rights of a minority group and to explicitly codify one set of religious values into the foundational legal document of our state, is utterly inconsistent with the bedrock principles of Liberty, Justice and Equality that have made this country a beacon of hope and freedom for more than 235 years. 

Please, my fellow North Carolinians, vote AGAINST Amendment One.  

Brian Clarke is an Assistant Professor of Law at Charlotte School of Law.  

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[1]  Numerous legal academics have discussed the distinctions between religious marriage and legal marriage, so these categories are not my invention, although I did formulate them independently and without prior knowledge of the academic literature.  See, e.g., Sonia Bychkov Green, Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J. L. & Soc. Change 53 (2011); Lynn D. Wardle, Marriage And Religious Liberty: Comparative Law Problems And Conflict Of Laws Solutions, 12 J. L. & Fam. Stud. 315 (2010).  This distinction was also critical to the Massachusetts Supreme Court’s decision in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

 

Comments

[A.G.]

This is not a religious issue. Gay marriage goes against the laws of nature. The day two sperm or two eggs can create life, then I will be convinced that homosexual relationships are equal to heterosexual relationships.

[Alfred Brophy]

Hi -- just to be clear about this because some people are thinking that I wrote this post. This is a guest post by Brian Clarke. That's why I labeled it "Clarke Guest Post." To the extent you want to discuss it, please put your comments here or email Brian Clarke directly.

[Brian Clarke]

Sorry if you are getting my hate mail Al! I am more than happy to take the heat myself (my email is at the link in my signature).