The Government’s Role in Marriage

… If the role of government in maintaining “legitimate” forms of marriage doesn’t make you uncomfortable, it should. In most other areas, the government steadfastly avoids this type of religious squabble, separating governmental functions from religious faiths. Marriage, however, has always been a conspicuous door placed in the wall of the separation between church and state.

The government’s distinction between legitimate and illegitimate marriages takes sides in a controversy that has raged since the formation of the first religions. Many religious groups, which include tens of thousands of Americans, believe in plural marriage or polygamy as a human right and divinely ordained …

While many fundamentalists believe that marriage can only be a union of a man or a woman, other Christians reject this interpretation and embrace same-sex marriage.

The reason that marriage licenses are so valued by advocates is precisely the reason it should be expunged from public documents: It conveys a religious or moral meaning. Conversely, the state interest in marriage concerns its legal meaning. It is the agreement itself, not its inherent religious meaning, that compels the registry of marriages by the government. Once married, the legal rights and obligations of the couple change in areas ranging from taxes to inheritance to personal injury to testimonial privileges.

The government’s policing role over legitimate marriages also produces curious contradictions. While the government criminalizes the marriage of same-sex couples without official licenses (denied to them as a matter of policy), it does not police religious practices governing divorces.

For example, Orthodox Jews believe that a woman remains married regardless of any civil divorce until her former husband gives her a “get,” or voluntary termination of the marriage. Some women have been left “married” for decades by former husbands refusing to recognize the termination of their marriage. Even so, the government still recognizes that they are indeed divorced because we view a registered divorce as ending their civic obligations to each other.

The same approach should apply to marriages, leaving the moral validity of a marriage to religious organizations. For state purposes, couples would simply sign a civil union agreement that confirms their legal obligations to each other and any progeny. Whether they are married in religious ceremonies would be left entirely to them and their faith. The government’s interest and role would be confined to enforcing the civil contract, as it would any other civil agreement.

Consenting adults should be able to assume the obligations of a civil union regardless of how their neighbors view their morality. As in other areas, adults should be able to follow the dictates of their own faith so long as they do not endanger or harm others, particularly minors.

Whether damnation awaits monogamists or polygamists or same-sex couples is a matter between citizens and their respective faiths. The government should address that aspect of marriage that concerns its insular needs: confirming the legal obligations of consenting adults. As for our politicians, there are levees to be rebuilt, corruption to end and wars to win.

Of course, this solution would deprive both sides of the debate of a controversy that has been a political and financial windfall. Nonetheless, the public certification of the moral relationships is not the call of government; it is the call of the faithful. It is time we move beyond moral licensing by the government and return marriage to its proper realm: in the churches, temples, mosques and the hearts of every citizen.

Jonathan Turley
Shapiro Professor of Public Interest Law at George Washington Law School
“How to End the Same-Sex Marriage Debate”
USA Today, April 2, 2006