"Like a horse and carriage" -- that's what the age-old song says about love and marriage. It is a traditional view that still is the core of marriage vows today, but the institution of marriage itself has changed throughout the years. As the Supreme Court considers the two cases it heard this week that will address marriage equality, the modern day essence of marriage -- commitment -- remains. But the institution, once defined only by religious teaching, is now firmly based in our legal system, conveying benefits, rights, and responsibilities enforced by the state. Our view of marriage cannot be dictated by one or any religious faith -- a view that has been implicit in the law now for a very long time, but that is being put to the test on the question of marriage equality.
Over 400 years of U.S. history, common conceptions of marriage have evolved. So have religious views of marriage. Ending a marriage has become easier with more attention to the interests of each party. The rights of married women have changed dramatically as the legal and cultural revolution prompted by the women's movement took hold in the second half of the 20th century. Those changes were both supported and criticized by and within various religious groups, including different branches of Judaism.
So what role does faith play today in defining the modern concept of marriage? Surely for many of us, as individuals, it still depends on one's particular religious beliefs or moral sensibilities. That is something both to be protected and protected against. On the one hand, the legal definition of marriage ought not to be rationalized in the law by any one religious view. Not only does it arguably violate the constitutional separation of religion and state, which forbids Congress from establishing or favoring a religion, it chains us to endless struggle over whose religious view should predominate. Surely the American ideal enshrined in the First Amendment is that no religion should dictate our law or our public policy. On the other hand, not only should religion be freed from state interference, but individuals should be free from state-sponsored religious dogma or practice.
So it should be with same-sex marriage. We have come a long way since we believed that people could be possessed by the devil and that homosexuality was a willful sin. Science -- greater knowledge and more open norms of acceptance -- have intervened. Public policy should be based on that reality, and has led a majority of Americans to recognize that for gay couples, the bonds of intimacy and companionship are just as authentic as they are for heterosexual couples. Indeed, for a growing number of religious denominations, marriage equality has become integrated into their ritual practice.
In the U.S., marriage is legitimized by the issuance of a license, which creates a legal relationship recognized by a web of federal, state, and even local laws. Unlike Europe, where for the most part, all marriages are created by civil authority and then afforded a religious ceremony as desired, in the U.S. clergy are licensed by the state to perform marriages just as public officials can. Nothing in the First Amendment would sanction forcing clergy to perform a marriage that violated the tenets of their faith. At the same time, nothing in that amendment permits a public official to refuse to perform a wedding based on a personal religious objection. This state neutrality undergirds the ability of religious representatives to refuse to marry divorced persons or same-sex couples. But it also mandates the state to uphold the same marriage rights for both gay and straight couples under the law.
That duality sums up the appropriate relationship between faith and marriage. They ought not, in fact, be hooked together like a horse and carriage. The Supreme Court's decisions on both cases before it are about more than who has the right to marry -- they are also about the basic right to religious freedom.