Monday, May 6, 2013

How the Catholic Church could have won the battle over marriage

Way back in 2003, the Catholic Church and the religious right in America had a slim chance to prevent same-sex marriage from sweeping across the country. Now, with Rhode Island becoming the tenth state to grant equality to its LGBTQ citizens, Delaware soon to become the eleventh and the Supreme Court about to rule on the Defense of Marriage Act (DoMA), any opportunity to preserve the concept of marriage as purely sacramental has been lost.

Marriage for a long time has had a unique double meaning in our society. Most laws governing marriage have ancient roots, and predate the modern notion of separation of church and state, as enshrined in the First Amendment of the United State's Constitution. Marriage has long existed as a religious concept in most societies, and civil laws evolved out of this religious concept. Marriage was a religious/cultural concept encased in governmental contract law.

Once church and state were separated, marriage became two things but was still treated as one. In religion, marriage was seen as a sacrament while in government marriage was seen as a contractual, civil union. It took a long time for most people to realize that marriage was a special case of entanglement between church and state. Most people did not question this entanglement, but continued to treat marriage as one thing, not realizing that a religion could no more govern a civil contract than the government could solemnize a sacrament.

When marriage equality first started to make inroads in the United States, a moment of pragmatic thought could have lead conservative religious leaders to divorce the two meanings of marriage. Under this potential arrangement churches could declare two people "married" while governments could deal with the legal aspects of civil unions. The laws of the states could have been altered so that the term "marriage" was removed and a term like "civil unions" inserted. Government would then not be in the position of giving the state's imprimatur to a religious sacrament.

This is not a new idea. At several General Assembly meetings here in Rhode Island I would hear at least one person, usually someone of a Libertarian bent, make this case. Unfortunately, by the time legislatures are discussing specific bills, it's too late to bring up what basically amounts to a reinterpretation of the entire concept. After fourteen years of battling over marriage, neither side was willing to compromise.

But in 2003 such a position might have been possible. And the churches, rather than finding themselves opposed by those in favor of secularism, may have found strong allies instead. Separating church and state is catnip to secularists, and a strong religious case can be made as well. In fact, Roger Williams, the founder of Rhode Island, saw church/sate separation as a way to protect the church from the state more than the other way around.

Why didn't the churches push for this compromise? I think there are a few reasons. First, I don't think they saw the fast rising acceptance of LGBTQ citizens as people deserving full equality under the law. The cultural change has been fast and dramatic, and conservatives aren't always the best at understanding or accepting these changes. They were blinded by their prejudices. The churches were operating on a time line of decades, not years, and they were caught flatfooted by the speed of the cultural change.

Not truly understanding what the separation of church and state, freedom of conscience and freedom of religion means is another factor. The Catholic Bishops in particular have been pushing a definition of religious freedom that basically amounts to a freedom to discriminate. The same prejudices that prevent Catholic clergy from solemnizing a same-sex wedding were conveniently built into the law, and over time this was seen as the way things should be, rather than as an unfortunate cultural wrong. This is why conservative religious believers could make the argument that civil government is "changing the definition of marriage" in allowing marriage equality. In truth, the definition of marriage was changed hundreds of years ago when a religious sacrament was codified into civil law.

Laws can be changed in the light of a culture's new understanding of human rights. That's why black people in our country are now seen as fully equal citizens instead of the 3/5ths of a person they were seen as when the Constitution was written. No one today would take seriously the idea that extending equal rights to all citizens changes the definition of personhood, but the idea that redefining marriage to include all people was seriously considered by otherwise thoughtful people.

It has long been convenient that a church based sacrament was enshrined in our laws because such confusion allowed churches a toehold into civil society. Church and State may have been separated by Constitutional Amendment but in the area of marriage, there was still a hopeless entanglement. This benefited those who favor theocratic laws immensely when making the case that church and state are not always separated, and that some overlap is acceptable. The situation allowed a slight amount of theocracy into our laws, and many on the religious right hoped that this theocratic beachhead might one day grow into a full scale religious invasion of our laws.

The Catholic Church in particular is now advancing a theory that religious based discrimination should be protected by law, not just on an institutional basis, but on a personal, one-on-one legal basis as well. This theory is used to fight marriage equality, reproductive rights, Obamacare and anti-bullying campaigns. This deliberate misunderstanding of basic Constitutional principles lead to many claiming that the religious protections in Rhode Island's current marriage equality legislation does not go far enough in protecting religious rights, when in fact it is fairly comprehensive, extending the right to discriminate against same- sex couples not only to churches, but to religious organizations such as the Knights of Columbus as well.

Not wanting to give up this valuable bit of confusion between church and state in our laws, conservative, anti-LGBTQ churches decided on an all or nothing strategy. They would fight for one meaning to the word marriage. The distinction between civil and religious marriage was collapsed. In defining the word marriage so precisely they gave up the opportunity to tease out two meanings, one secular and one religious. If, as those on the losing side of this battle proclaim, the word marriage is being redefined, it's because they never really fought for the word.

Instead, they gambled with the word, betting that in the end the word would still mean what it had evolved over time to mean: a religious sacrament enshrined into law. If the word marriage really had such a high value, religious institutions should never have gambled with it. They should have moved to protect the word, by working to pull it out of the law books. Instead, they gambled and they lost.

Marriage from this day forward has a primary, firmly secular meaning that speaks to equality and a secondary, dare I say lesser, religious meaning that still potentially enshrines prejudice. Instead of fighting for a secular and fair society, religiously motivated marriage fundamentalists fought for theocracy and religious privilege.

They lost.


  1. The first premise of this article is entirely unworkable. A "civil unions" only system for both heterosexual and homosexual couples would violate the Due Process Clause of the 14th Amendment. There is a fundamental right to marry in this country (Meyer v. Nebraska).

    While the states have great latitude in drafting their marriage laws (although these laws still must comport with the Constitution, notably the Equal Protection Clause), they are constitutionally obligated to register their marriages, as marriages. This fundamental right to marry, at the moment, is only recognized to extend to heterosexual couples.

  2. I disagree. When opponents speak of marriage equality, they talk about preserving the meaning of the word marriage. I submit that the word marriage has always had two meanings, civil and religious, and that equality opponents wanted to collapse that meaning into only one: religious, yet enshrined in law. The only strategy that could have worked for them was to insist that laws using the term marriage usitilize a different word, be it civil unions or any other made up term. Civil marriages would simply be retired something else, and the word marriage would have a purely religious sense, with the government uninvolved. In essence, the self-described "defenders of marriage" needed to embrace separation of church and state, instead of embracing their homophobia. Then they could have, if they truly wanted to, preserved the meaning of "marriage" the way they wanted to. Of course, they would have still have to live in a world where liberal churches would sanctify same-sex marriage, but the government would no longer have the authority to legitimize marriage, only civil unions.

    1. The government can't do this. The government is constitutionally required to allow heterosexual couples to register their unions with the government as "marriages" using that term.

      Although the reason why the anti-equality side did not advocate for a "civil unions for all" governmental system was probably not due to constitutional concerns. People who are anti-gay equality would not want to see gay people rise to the level of straight people by getting married, nor would they want to see straight people lowered to the level of gay people by getting a civil union from the government. Either way, gays and straights would be equals in the eyes of the law, which is really what they are against.