Balkinization: The Three Parties to Every (Civil) Marriage in North Carolina: One Man, One Woman, and God

The Three Parties to Every (Civil) Marriage in North Carolina: One Man, One Woman, and God

Linda McClain

Yesterday, North Carolinians approved a constitutional amendment declaring: "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state." In the words of Tami Fitzgerald, chairwoman of the executive committe for the pro-amendment Vote for Marriage NC, "the whole point is simply that you don't rewrite the nature of God's design for marriage based on the demands of a group of adults." A sign by a local United Methodist Church (featured in a story in today's New York Times) made the point even more vividly: "A True Marriage -- Male and Female and God."

These statements encapsulate the conflation of civil and religious marriage that remains at the core of much opposition to extending civil marriage to same-sex couples. Civil law, the argument goes, must reflect a "true" understanding of marriage, and that is marriage as God designed it. As the local church sign indicates, God is the third party to every "true" marriage. When the New York legislature debated the Marriage Equality Act, Senator Diaz similarly stated: "We are trying to redefine marriage . . . I agree with Archbishop Timothy Dolan when he said that God, not Albany, has settled the definition of marriage a long time ago." By contrast, some other religious legislators (whose support was critical to the law's passage) explained that even though their religious tradition held a different view of marriage, the right thing to do, as a matter of basic equality and civil rights, was to support the Act, while preserving religious freeedom through robust religious exemptions. The Statement in support of New York's Marriage Equality Act expresses this helpfully: "This bill grants equal access to the government-created legal institution of civil marriage, while leaving the religious institution of marriage to its own separate, and fully autonomous sphere."

The North Carolina Amendment, by contrast, at least in the view of its proponents, rejects a distinction between civil and religious marriage. God is the third party not simply to every religious marriage but also to every civil marriage. The civil law of marriage, on this view, must be congruent with religious law -- God's "design." This stands in sharp contrast to a basic tenet of family law in the United States: that civil marriage is a state-created institution and that the state is a third party to every marriage and divorce. That is why, in the Supreme Judicial Court of Massachusetts declared, in Goodridge v. Department of Public Health, the famous 2003 same-sex marriage case: "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State." What's more, it said, "Simply put, the government creates civil marriage."

Yesterday's vote in North Carolina suggests a troubling rejection of this distinction between marriage as a civil and a religious institution. It takes a very different approach to reconciling the civil rights of gay men and lesbians with the religious liberty of tho believe that, by God's design, marriage is between one man and one woman than New York, which enacted a law securing marriage equality -- equality with respect to access to civil marriage -- while protecting religious liberty through various exemptions for religious institutions. Yesterday's vote in North Carolina drives home that more attention to this critical distinction between between civil and religious marriage is vital to a fair and just resolution of the issue. Such attention is particularly important amidst claims that religious liberty in the United States is under seige, with marriage laws like that of New York often cited as Exhibit A.

Posted 10:28 AM by Linda McClain [link]