Disentangled marriage means religious freedom

Gov. Nathan Deal did the right thing by vetoing HB 757, which would have enshrined the right of certain institutions and individuals to discriminate on the basis of sexual orientation. But the debate over religious freedom in an era of same-sex marriage and changing sexual mores is far from over. One persistent issue concerns whether a person who performs marriages can refuse to perform a same-sex marriage.

There is a way to avoid the ugly debates over this divisive question that would protect everyone’s interests: disentangle civil marriage and religious marriage.

The current system for getting married, in which a religious leader’s pronouncement can convey a critical legal status, is the product of historical circumstances that no longer apply. In fact, there is no other area in which the state delegates such an important legal function to religious leaders.

Until the modern period there was little concept of separation between church and state. Civil marriage emerged from the religious traditions, and the state simply followed them. Over time, as marriage came to carry more legal implications, and as people were increasingly able to live without religious beliefs and apart from religious communities, fissures began to develop between civil and religious marriage. The law dealt with questions on an ad hoc basis, but so long as the legal and religious aspects of marriage overlapped, there was little reason to draw a firm line between the two.

Religious leaders were never especially interested in changing this system. So long as society generally reflected mainstream religious culture, those groups were happy to keep the two masters — Law and Religion — entangled.

But what was once a tolerable idiosyncrasy is becoming a divisive anachronism. As law and religion increasingly come into conflict over issues like same-sex marriage and gender identity, it is more important than ever to clarify that civil status and religious status are distinct. And, as mainstream conservative religious groups are increasingly alienated from secular society, they have a newfound interest in separating religion from the state to prevent confusion between the two or, worse, dilution and corruption of their religion.

The Legislature should adopt a new approach. Religious leaders must be permitted to perform whatever religious ceremonies they want between consenting adults, and to decline those that offend their beliefs. None of these relationships would have the legal status of marriage, but if they are important to a person’s religious identity, the law should not interfere. The law will have no interest in policing these relationships because they are strictly religious, rather than civil, in nature.

On the other hand, civil marriage is best reframed as a bundle of contracts between two individuals and the state, rather than anything sacred. A couple that desires the legal rights of civil marriage would go through a legal process. But a religious ceremony would be neither necessary nor sufficient. It would be altogether irrelevant.

Only relationships between two consenting, unrelated and unmarried adults will qualify for civil marriage, as the U.S. Supreme Court has mandated, because they serve its core functions: promoting stability, establishing legal bonds that clarify duties and rights, and providing a committed family unit conducive to rearing children.

Instead of wasting its time engaging in a zero-sum war over this issue, the Georgia Legislature should lead the nation by adopting this new approach to marriage that protects everyone as equal citizens, regardless of their faith, while affirming the right of religious believers to be as free from state entanglement as possible.