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In Marriage Debate, Divorce Church from State
Inside the First Amendment
by Charles C. Haynes
© July 20, 2008, Charles C. Haynes

Suddenly this summer, the reality of same-sex couples lining up to get married in California has led some religious leaders to rethink their government role.

In a letter last month, Bishop Marc Handley Andrus of the Episcopal Diocese of California directed his clergy to “encourage all couples, regardless of orientation, to follow the pattern of first being married in a secular service and then being blessed in The Episcopal Church.”

The bishop’s missive illustrates what a tangled web we have woven when clergy intone “by the power invested in me by the state.”

Because the Episcopal Church doesn’t sanction same-sex marriage — but gives the option of blessing the union — the bishop appears to be seeking a way to bless all couples while distancing the church from legal arrangements sanctioned by the state.

“There are a lot of benefits in getting out of the legal marriage business,” the Very Rev. Brian Baker told The Sacramento (Calif.) Bee in reaction to the bishop’s letter. “This way the clergy and the couple can focus on the spiritual blessings the church has to offer and not the political stuff.”

On the theological flip side, many conservative clergy worry that as agents of the state they will be pressured to perform same-sex marriages — or, in some other way, coerced into recognizing same-sex relationships in contradiction of church doctrine.

Maybe the bishop is on the right track: Separate secular from sacred by drawing a bright line between civil arrangements and the sacrament of marriage. Each state would limit itself to defining marriage as civil benefits for committed couples (as mandated by state law) — and each religious group would be free to define marriage according to the tenets of its faith.

The practice of dubbing clergy agents of the state is a vestige of history in Europe and some American Colonies when the established church determined who could be married. Disestablishment in America ended church monopoly over marriage — but left in place the dual role of clergy as religious leaders and state actors in the marriage arena.

Ending this church-state entanglement wouldn’t end the gay-marriage debate. But it might serve to reframe the issue by focusing on civic arguments for and against extending government benefits to same-sex couples. In my view, it isn’t the business of government to preserve the “sanctity of marriage.” Nor is it the business of government to dictate the meaning of marriage to any religious community.

At the same time, no religious group should be allowed to impose a religious definition of marriage on the rest of society. Various faiths in the United States define the sacrament of marriage in various ways. The establishment clause of the First Amendment should bar government officials from making public policy solely on the basis of a theological conviction about what constitutes “marriage.”

Of course, even if Americans agreed to separate civil and religious marriage, the patchwork of state solutions to the marriage conundrum would persist for some time.

Where civil same-sex marriage is prohibited, sacred ceremonies by religious groups that support gay marriage would still receive no legal recognition. And where same-sex marriage or civil unions are legal, those civil arrangements would still not be recognized by religious groups opposed to gay marriage. But at least decisions about civil arrangements in marriage would be determined without church dictating to state — and without state interfering with the religious freedom of churches, synagogues, mosques or temples.

When I first floated this idea four years ago (on the cusp of the Massachusetts decision legalizing gay marriage), I thought the cleanest break would be to call state arrangements “civil unions” and religious ceremonies “marriage.” Now I’m not so sure that’s workable.

Removing the much-contested term “marriage” from the same-sex marriage debate would have obvious political advantages. But it might not go down well with the millions of religiously unaffiliated or nonreligious Americans who are likely to prefer being “married” to “civil unioned.”

It’s probably best to stay with “marriage,” but separate the civil from the religious by ending the role of clergy as agents of government. After all, for people of faith, marriage in a house of worship should be by the power invested by God — not by the state.

© 2008, Charles C. Haynes
Reprinted with permission.
Charles C. Haynes is senior scholar at the
First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001

Legal Marriage Resources
Governments that offer Full Legal Marriage

Netherlands (2001)
Belgium (2003)
Canada (2005)
Spain (2005)
South Africa (2005)
Norway (2009)
Sweden (2009)
Iceland (2010)
Argentina (2010)
Portugal (2010)
Denmark (2012)
France (2013)
New Zealand (2013)
Brazil (2013)
Uruguay (2013)
New Zealand (2013)
United Kingdom
(England, Wales, Scotland) (2013)
Luxembourg (2014)
Finland (2014)
Ireland (2015)
United States (2015)
Colombia (2016)
Germany (2017)
Taiwan (2017)
Malta (2017)
Australia (2017)
US States & Territories
U.S. Supreme Court, June 26, 2015 Ruling: All U.S. States must allow same-sex couples legal marriage.

Massachusetts (2004)
California (2008)
Connecticut (2008)
Iowa (2009)
Vermont (2009)
New Hampshire (2009)
District of Columbia (2009)
New York (2011)
Maine (2012)
Washington (2012)
Maryland (2013)
Rhode Island (2013)
Delaware (2013)
Minnesota (2013)
Illinois (2013)
Utah (2013)
New Jersey (2013)

Hawaii (2013)
New Mexico (2013)
Michigan (2014) - stayed pending legal challenge
Oregon (2014)
Wisconsin (2014) Arkansas (2014) - stayed pending legal challenge
Pennsylvania (2014)
Indiana (2014)
Nevada (2014)
Virginia (2014)
Oklahoma (2014)
Idaho (2014)
West Virginia (2014)
Alaska (2014)
Arizona (2014)
Wyoming (2014)
Kansas (2014) - stayed pending legal challenge
Florida (2014)
Colorado (2014)
North Carolina (2014)
South Carolina (2014)
Montana (2014)
Alabama (2015)
Native American Tribes

Coquille Tribe, Oregon (2009)
Mashantucket Pequot, Connecticut (2011)
Suquamish Tribe, Washington (2011)
Confederated Tribes of the Colville Reservation, Washington (2013)
Leech Lake Band of Ojibwe, Minnesota (2013)
Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
Pokagon Band of Potawatomi Indians, Michigan (2013)
Santa Ysabel Tribe, California (2013)
Confederated Tribes of the Colville Nation, Washington (2013)
Cheyenne, Oklahoma (2013)
Arapaho, Oklahoma (2013)
Leech Lake Tribal Court, Minnesota (2013)
Puyallup Tribe, Washington (2914)
Wind River Indian Reservation, Wyoming (2014)
Keweenaw Bay Indian Community, Michigan (2014)
Colville Confederated Tribes, Washington (2014)
Central Council of Tlingit, Alaska (2015)
Haida Indian Tribes, Alaska (2015)

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