First Amendment topicsAbout the First Amendment
Holy war over gay marriage: Should government take sides?
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

The revolution began eight weeks ago with long lines of gay and lesbian couples on the steps of City Hall in San Francisco. No surprise there. But now it’s spreading like wildfire across the nation, from Portland, Ore., to New Paltz, N.Y.

Gay couples everywhere are demanding marriage licenses – and elected officials in a growing number of cities and counties are eager to oblige.

Many other political leaders are even more eager to put a stop to all this. In state after state, legislators are scrambling to amend their constitutions to ban gay marriage. President Bush has even endorsed doing the same thing to the U.S. Constitution.

But events in Massachusetts may soon overtake all of these efforts, making it virtually impossible to put the gay-marriage genie back in the bottle. Barring some last-minute roadblock from the courts or Legislature, gay couples will be able to marry legally in Massachusetts beginning on May 17. Once that happens, the momentum for legalizing gay marriage in the United States may be unstoppable.

With so much at stake, both sides are gearing up for what promises to be one of the biggest and most divisive culture-war battles in American history.

For many religious conservatives, this fight is about far more than defining family and debating what’s best for children – as important as they take those issues to be. It’s about what God requires. As the protest signs at every rally against gay marriage proclaim: “God made Adam and Eve, not Adam and Steve.”

This culture war is fast becoming a holy war.

On one side, at least, it’s all about religious conviction. President Bush acknowledged this in March when he promised the National Association of Evangelicals that he would “defend the sanctity of marriage.” Marriage as a union between a man and a woman, he declared, is “honored and encouraged in cultures and by every religious faith.”

But wait. Four days after the president’s speech to evangelicals, the district attorney in Ulster County, N.Y., filed criminal charges against two Unitarian ministers for performing same-sex marriages. (Apparently, the ministers performed a religious ceremony for same-sex couples – and then declared that they considered these marriages also legal under state law.) A few days after that, 40 Protestant, Catholic and Jewish religious leaders in Maryland told the state Legislature that gay couples should receive civil marriage licenses. Apparently, not “every religious faith” agrees on how the state should define marriage.

In fact, a small but growing number of religious groups in America do sanctify same-sex marriages – and support same-sex civil marriages. They argue that government has no business promoting one religious view of marriage over all others.

Surely that’s right. If defending the “sanctity of marriage” is the issue, then the establishment clause of the First Amendment should prohibit the government from taking sides. Whether marriage is or is not “sacred” is a purely theological matter – beyond the purview of government to decide, or “establish.”

Some opponents of gay marriage invoke the other religious-liberty provision of the First Amendment – the one guaranteeing “free exercise” of religion. Richard Land, president of the Ethics and Religious Liberty Commission (Southern Baptist Convention), warns that legalizing gay marriages will eventually put pressure on religious communities to perform same-sex marriages – or risk losing their tax-exempt status.

Free-exercise problems, of course, can cut both ways. As Rabbi Rebecca Alpert of Temple University argues, religious groups that sanctify same-sex marriage might claim a free-exercise violation because members of their faith community are denied the right to civil marriage.

As the nation confronts these First Amendment issues, it will help to keep in mind that civil marriage and religious marriage are two different things. State governments decide what constitutes civil marriage, and what state benefits such marriages receive. These decisions are supposed to be based on articulation of strong state or societal interests, and not on religious grounds. Religious communities decide what constitutes the religious meaning of marriage.

What exactly are the state’s interests? Opponents of giving state benefits to same-sex unions argue that traditional marriage best promotes the welfare of children and the stability of society. Proponents counter that conferring benefits on gay families will advance society’s interest in building stable relationships and supporting children.

Let’s have this debate, look at the best research, and then support a public policy that serves the common good. But let’s not let government – state or federal – rush to make one definition of religious marriage (however popular) the meaning of civil marriage for all Americans.

Unfortunately, in the current debate civil and religious marriage are hopelessly confused and entangled – as the absurd case against the Unitarian ministers in New York reveals.

To paraphrase Jonathan Swift, here’s a modest proposal: Why not draw a much brighter line between civil and religious marriage? That way, government officials would have nothing to do with what does or does not constitute a sanctified marriage. And clergy would no longer sign civil marriage licenses and intone “by the power invested in me by the state.”

Think of the benefits of this arrangement. If clergy weren’t agents of the state, those Unitarian ministers couldn’t be fined for conducting rites sanctioned by their church. And (should gay marriage become legal) evangelical ministers would never have to worry about government intrusion into the “sanctity of marriage” as understood and practiced in their churches.

If the word “marriage” is the main sticking point, let’s call all civil marriages something else – civil unions, perhaps – and leave the definition of “marriage” entirely to religious groups.

Separating the civil from the religious won’t end the battle over gay marriage – but it could take some of the “holy” out of the war.


N.Y. ministers hit with criminal charges for marrying gay couples

Critics call prosecution unprecedented; rabbi says charges should raise 'serious concerns for Americans who cherish religious freedom.' 03.16.04

Ministers vow to fight Arizona ban on same-sex unions
Pledge comes after county refuses to legalize recent marriages; meanwhile, church, ACLU are preparing lawsuit claiming ban violates religious freedom. 05.19.04

Religious groups decry proposed amendment banning gay marriage
Coalition sends letters to Congress, saying it isn't government's job to enshrine laws reflecting a specific religious view. 06.07.04

Christian group enters legal fray over gay marriage
Alliance Defense Fund's chief counsel says 'Christian side' lost previous religious cases because it didn't show up. 05.25.04

In marriage debate, divorce church from state
By Charles C. Haynes Maybe we should separate secular from sacred by drawing a bright line between civil arrangements and the sacrament of marriage. 07.20.08

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

print this   Print

Last system update: Monday, September 22, 2008 | 18:58:28
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links