In this law review article, Cardozo Law School professor Daniel Crane argues that marriage has traditionally been in the province of faith, not of the state, and that this should be taken into consideration when evaluating proposed marriage amendments.

The full article is available in PDF format at http://www.cardozolawreview.com/PastIssues/CRANE.WEBSITE.pdf

Here is a brief excerpt (citations available at the link):

Opponents of same-sex marriage propose to nationalize the definition of marriage through a constitutional amendment that would define marriage as the union of one man and one woman.1 Other, more federalist-minded defenders of traditional marriage express discomfort with a federal amendment and propose instead to constitutionalize the definition of marriage at the state level.2 Either way, most opponents of same-sex marriage are committed to state or federal constitutional reforms that define marriage traditionally, ostensibly on the grounds that a legal definition of marriage as heterosexual union is necessary to save the marital institution.

Curiously, the push to constitutionalize-to legalize and nationalize-the definition of marriage comes primarily from conservative religious communities, particularly Christianity and Judaism,3 whose traditions and theology are generally opposed to state intervention in the institution of marriage. Catholic tradition regards marriage as a spiritual estate or sacrament and hence the province of the church not the state. Protestant tradition, while expressing skepticism about the sacramentality of marriage, asserts that marriage has a highlyspiritual dimension that requires mediation by the church. Jewish tradition regards Jewish marriage as the province of Jewish law-Halakhah-and not of civil law. In neither the Jewish nor the Christian tradition is marriage understood as primarily the province of the state.

The current political movement against same-sex marriage threatens, perhaps unwittingly, these religious conceptualizations. By insisting that legally defining marriage is necessary to preserving the institution of marriage, these religious communities are implicitly acknowledging and confirming the state's right to dictate the definition and contours of marriage. If a uniform legal definition is necessary to save marriage, it must be because marriage owes its legitimacy to the government. By pushing to legalize, even nationalize marriage, religious conservatives are reifying marriage as a legal, rather than religious, construct contrary to their conventional, religious view of marriage.

This essay presents a theological argument against the secular legalization of marriage and in favor of the secular privatization of marriage. It argues that the traditions of Judaism and Christianity understand marriage as an institution whose legitimacy derives not from the state but from the sanction of religious communities. As such, marriage is the province of religious communities, and not the state, and empowering the state to define marriage uniformly not only profanes a holy institution but threatens the ultimate autonomy and authority of religious communities with respect to marriage.

The full article is available in PDF format at http://www.cardozolawreview.com/PastIssues/CRANE.WEBSITE.pdf

 
 

16 Comments

  1. GaryW says:

    Having just read this article in its entirety, I think Crane is right. It terrifies me that so many churches are willing to hand over their power to the government to manage the marriage issue.

  2. GaryW says:

    Having just read this article in its entirety, I think Crane is right. It terrifies me that so many churches are willing to hand over their power to the government to manage the marriage issue.

  3. Ryan Bell says:

    I'm a pastor/theologian, not a lawyer, but this short introduction definitely articulates my view. I'm looking forward to reading the entire essay. Thanks so much for posting this.

  4. Ryan Bell says:

    I'm a pastor/theologian, not a lawyer, but this short introduction definitely articulates my view. I'm looking forward to reading the entire essay. Thanks so much for posting this.

  5. Buddy Scott says:

    I really don't care what others do in their lives. I might pray for them but what they do with their lives is between them and God. If God has given us the freedom to choose right from wrong then he knows that some of us are not going to choose correctly. Thus the freedom for anyone to choose to be distanced from God or not. It does bother me that society seems to be migrating from what is right but as I stated, it's between them and God. It does disturb me that the government may start legislating freedoms.

  6. Buddy Scott says:

    I really don't care what others do in their lives. I might pray for them but what they do with their lives is between them and God. If God has given us the freedom to choose right from wrong then he knows that some of us are not going to choose correctly. Thus the freedom for anyone to choose to be distanced from God or not. It does bother me that society seems to be migrating from what is right but as I stated, it's between them and God. It does disturb me that the government may start legislating freedoms.

  7. Alison Agins says:

    Well I hate to be droll but we see what can happen when religion takes marriage away from the state such as in Colorado City and the polygamist sects. A man marries several wives with many of them being younger than some of his children and grandchildren. To them they are married because one of their prophets conducts the ceremony and they don't bother to register with the state. So then there are children many many children that one man has with many wives. Oh now that seems to me to be a very good reason that the state should have a hand in this thing called marriage. Because those many children have to eat and it looks like we the people of the state are the ones supplying the welfare monies for those children. Those people call it "Bleeding the beast".. or something similar to that.

    The state issues the license to the preacher so that it is well known that the marriage will hold up in court and be legal. The state issues the license to the couple with the blood tests taken care of so the state knows that someone will not be hoodwinked into marrying someone with a "social" disease. After the ceremony the happy couple signs papers that are recorded in the county offices where the marriage takes place. All these things for good civil reasons. As married people they are honored by the state with breaks in taxes or living arrangements and even by friends and family. That little piece of paper gives them something that establishes them in a way that just isn't there is they live together without it.

    All the rest of their lives the civil/state authorities recognize them and their children as legal. Bonded together as a unit. The children that they have are recognized as being from a family and are legitimate. Those children have rights because of this and the state honors those rights.

    Marriage is a civil affair. And I say, as it should be.

    For a very large segment of our citizenry religion does not enter or interfere in their lives. They do not attend church, they do not pray, read the Bible or Koran or any other recognized religious book or authority. The only time they speak of God is a profanity. Some get married at courthouses, Las Vegas, and other marriage mills. "Elvis" marries them or maybe even Peter Rabbit. The point is that there are a lot of marriages that take place in this country that are not sanctioned by church or I dare say by God. The wedding service is brief, and soon the drinking and revelry start and the marriage is down hill from there. With over half of all marriages ending in divorce we are not looking at holy unions where no man can put asunder what God has joined together. That just doesn't fly!

    The divorce is also handled by civil/state authorities. The children are then assigned by the courts into a civil/state decided life.

    For Christians or Jews who are religious there are priests, preachers and rabbis that will perform the service and pronounce the words that will either be taken as solemn vows or not. I've attended many a wedding and listened to the familiar words and heard the I do's or I will's knowing full well that it will not be long until there is the I no longer do or will.

    We cannot fix this problem by asking the state to step into the role of religion and enforce upon the entire state laws that are of a religious nature.

    We should not be getting off the track of Religious Liberty and the huge problems that we are facing now and into the future getting ourselves all tangled up with those that will be our enemies regarding freedom of conscience and who we should obey regarding the day we worship.

    If we allow religion to step into this and bring about an amendment to the constitution be it state or federal we are really asking for trouble. What will the next step be? That no one can get married unless a priest, preacher or rabbi performs the ceremony? That would surely be around the corner. What hypocrisy!

    Marriage has evolved. Remember how they did it in Ruth and Boaz's day? She could find herself married if he threw his garment over her on the floor of the threshing room!

  8. Alison Agins says:

    Well I hate to be droll but we see what can happen when religion takes marriage away from the state such as in Colorado City and the polygamist sects. A man marries several wives with many of them being younger than some of his children and grandchildren. To them they are married because one of their prophets conducts the ceremony and they don't bother to register with the state. So then there are children many many children that one man has with many wives. Oh now that seems to me to be a very good reason that the state should have a hand in this thing called marriage. Because those many children have to eat and it looks like we the people of the state are the ones supplying the welfare monies for those children. Those people call it "Bleeding the beast".. or something similar to that.

    The state issues the license to the preacher so that it is well known that the marriage will hold up in court and be legal. The state issues the license to the couple with the blood tests taken care of so the state knows that someone will not be hoodwinked into marrying someone with a "social" disease. After the ceremony the happy couple signs papers that are recorded in the county offices where the marriage takes place. All these things for good civil reasons. As married people they are honored by the state with breaks in taxes or living arrangements and even by friends and family. That little piece of paper gives them something that establishes them in a way that just isn't there is they live together without it.

    All the rest of their lives the civil/state authorities recognize them and their children as legal. Bonded together as a unit. The children that they have are recognized as being from a family and are legitimate. Those children have rights because of this and the state honors those rights.

    Marriage is a civil affair. And I say, as it should be.

    For a very large segment of our citizenry religion does not enter or interfere in their lives. They do not attend church, they do not pray, read the Bible or Koran or any other recognized religious book or authority. The only time they speak of God is a profanity. Some get married at courthouses, Las Vegas, and other marriage mills. "Elvis" marries them or maybe even Peter Rabbit. The point is that there are a lot of marriages that take place in this country that are not sanctioned by church or I dare say by God. The wedding service is brief, and soon the drinking and revelry start and the marriage is down hill from there. With over half of all marriages ending in divorce we are not looking at holy unions where no man can put asunder what God has joined together. That just doesn't fly!

    The divorce is also handled by civil/state authorities. The children are then assigned by the courts into a civil/state decided life.

    For Christians or Jews who are religious there are priests, preachers and rabbis that will perform the service and pronounce the words that will either be taken as solemn vows or not. I've attended many a wedding and listened to the familiar words and heard the I do's or I will's knowing full well that it will not be long until there is the I no longer do or will.

    We cannot fix this problem by asking the state to step into the role of religion and enforce upon the entire state laws that are of a religious nature.

    We should not be getting off the track of Religious Liberty and the huge problems that we are facing now and into the future getting ourselves all tangled up with those that will be our enemies regarding freedom of conscience and who we should obey regarding the day we worship.

    If we allow religion to step into this and bring about an amendment to the constitution be it state or federal we are really asking for trouble. What will the next step be? That no one can get married unless a priest, preacher or rabbi performs the ceremony? That would surely be around the corner. What hypocrisy!

    Marriage has evolved. Remember how they did it in Ruth and Boaz's day? She could find herself married if he threw his garment over her on the floor of the threshing room!

  9. Kevin says:

    Marriage in society is both a civil and religious affair. It is the one privilege at which church and state are joined, and necessarily so. Marriage can be purely faith based, indeed, but in order to enjoy many legal dimensions of society the civil aspect must be part of the game. Something that legally recognizes the union. This close union ends up defining so much about what society feels is acceptable and legal. Therefore, the battle wages over homosexual marriages. Most of society agree with civil unions giving same sex couples legal rights. Much like a Justice of the Peace declares a man and woman husband and wife, but without the religious dimension to the ceremony.

    Marriage not only carry's with it a faith dimension, it carry's with it society's blessing of what is acceptable and normal unions. Instinctively humans know that a man and a woman are the valid means by which a society is built and strengthened through the rearing of children.

  10. Kevin says:

    Marriage in society is both a civil and religious affair. It is the one privilege at which church and state are joined, and necessarily so. Marriage can be purely faith based, indeed, but in order to enjoy many legal dimensions of society the civil aspect must be part of the game. Something that legally recognizes the union. This close union ends up defining so much about what society feels is acceptable and legal. Therefore, the battle wages over homosexual marriages. Most of society agree with civil unions giving same sex couples legal rights. Much like a Justice of the Peace declares a man and woman husband and wife, but without the religious dimension to the ceremony.

    Marriage not only carry's with it a faith dimension, it carry's with it society's blessing of what is acceptable and normal unions. Instinctively humans know that a man and a woman are the valid means by which a society is built and strengthened through the rearing of children.

  11. Alison Agins says:

    How is "marriage in society is both a civil and religious affair"?
    You are making a statement that would indicate that all marriages are both civil and religious. This just isn't true. They can be either or both.
    In many countries the civil service must take place before the religious one. All over the world the place of marriage is in the civil authorities hands.

    The following is from Wikipidea:

    "A marriage is usually formalised at a wedding or marriage ceremony.[6] The ceremony may be officiated either by a religious official, by a government official or by a state approved celebrant. In many European and some Latin American countries, a religious ceremony must be held separately from the civil ceremony. Some countries – such as Belgium, Bulgaria, the Netherlands and Turkey[7] – require that a civil ceremony take place before any religious one. In some countries – notably the United States, Canada, the United Kingdom, the Republic of Ireland, Norway and Spain – both ceremonies can be held together; the officiant at the religious and civil ceremony also serving as agent of the state to perform the civil ceremony. To avoid any implication that the state is "recognizing" a religious marriage (which is prohibited in some countries) – the "civil" ceremony is said to be taking place at the same time as the religious ceremony. Often this involves simply signing a register during the religious ceremony. If the civil element of the religious ceremony is omitted, the marriage is not recognised by government under the law.
    While some countries, such as Australia, permit marriages to be held in private and at any location, others, including England and Wales, require that the civil ceremony be conducted in a place open to the public and specially sanctioned by law. In England, the place of marriage need no longer be a church or registry office, but could also be a hotel, historic building or other venue that has obtained the necessary licence. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
    Despite a marriage ceremony being conducted by a religious or civil official, most religious traditions maintain that the marriage itself is the act of the individuals themselves, either as a form of contract or as an exchange of vows, with the guests acting as witnesses.[citation needed]
    Within the parameters set by the law of the jurisdiction in which a marriage or wedding takes place, each religious authority has rules for the manner in which weddings are to be conducted by their officials and members."

    In the US there are around 75% of marriages performed by clergy. That can and does include clergy by other than Christian clergy.

    The laws of this land are in place to protect those that are not in the majority.

    What I find so interesting is who is financing the amendment against gay marriage in California.

    Colorado-based Focus on the Family and James Dobson. more than $400.00.

    The American Family Assn. headquarted in Tupelo, Miss . $500.00.

    The national council of the Knights of Columbus based in New Haven, Conn. $250.00.

    I for one question their motives in giving large sums of money towards new law in Calif.

  12. Alison Agins says:

    How is "marriage in society is both a civil and religious affair"?
    You are making a statement that would indicate that all marriages are both civil and religious. This just isn't true. They can be either or both.
    In many countries the civil service must take place before the religious one. All over the world the place of marriage is in the civil authorities hands.

    The following is from Wikipidea:

    "A marriage is usually formalised at a wedding or marriage ceremony.[6] The ceremony may be officiated either by a religious official, by a government official or by a state approved celebrant. In many European and some Latin American countries, a religious ceremony must be held separately from the civil ceremony. Some countries – such as Belgium, Bulgaria, the Netherlands and Turkey[7] – require that a civil ceremony take place before any religious one. In some countries – notably the United States, Canada, the United Kingdom, the Republic of Ireland, Norway and Spain – both ceremonies can be held together; the officiant at the religious and civil ceremony also serving as agent of the state to perform the civil ceremony. To avoid any implication that the state is "recognizing" a religious marriage (which is prohibited in some countries) – the "civil" ceremony is said to be taking place at the same time as the religious ceremony. Often this involves simply signing a register during the religious ceremony. If the civil element of the religious ceremony is omitted, the marriage is not recognised by government under the law.
    While some countries, such as Australia, permit marriages to be held in private and at any location, others, including England and Wales, require that the civil ceremony be conducted in a place open to the public and specially sanctioned by law. In England, the place of marriage need no longer be a church or registry office, but could also be a hotel, historic building or other venue that has obtained the necessary licence. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
    Despite a marriage ceremony being conducted by a religious or civil official, most religious traditions maintain that the marriage itself is the act of the individuals themselves, either as a form of contract or as an exchange of vows, with the guests acting as witnesses.[citation needed]
    Within the parameters set by the law of the jurisdiction in which a marriage or wedding takes place, each religious authority has rules for the manner in which weddings are to be conducted by their officials and members."

    In the US there are around 75% of marriages performed by clergy. That can and does include clergy by other than Christian clergy.

    The laws of this land are in place to protect those that are not in the majority.

    What I find so interesting is who is financing the amendment against gay marriage in California.

    Colorado-based Focus on the Family and James Dobson. more than $400.00.

    The American Family Assn. headquarted in Tupelo, Miss . $500.00.

    The national council of the Knights of Columbus based in New Haven, Conn. $250.00.

    I for one question their motives in giving large sums of money towards new law in Calif.

  13. Alison Agins says:

    How is "marriage in society is both a civil and religious affair"?
    You are making a statement that would indicate that all marriages are both civil and religious. This just isn't true. They can be either or both.
    In many countries the civil service must take place before the religious one. All over the world the place of marriage is in the civil authorities hands.

    The following is from Wikipidea:

    "A marriage is usually formalised at a wedding or marriage ceremony.[6] The ceremony may be officiated either by a religious official, by a government official or by a state approved celebrant. In many European and some Latin American countries, a religious ceremony must be held separately from the civil ceremony. Some countries – such as Belgium, Bulgaria, the Netherlands and Turkey[7] – require that a civil ceremony take place before any religious one. In some countries – notably the United States, Canada, the United Kingdom, the Republic of Ireland, Norway and Spain – both ceremonies can be held together; the officiant at the religious and civil ceremony also serving as agent of the state to perform the civil ceremony. To avoid any implication that the state is "recognizing" a religious marriage (which is prohibited in some countries) – the "civil" ceremony is said to be taking place at the same time as the religious ceremony. Often this involves simply signing a register during the religious ceremony. If the civil element of the religious ceremony is omitted, the marriage is not recognised by government under the law.
    While some countries, such as Australia, permit marriages to be held in private and at any location, others, including England and Wales, require that the civil ceremony be conducted in a place open to the public and specially sanctioned by law. In England, the place of marriage need no longer be a church or registry office, but could also be a hotel, historic building or other venue that has obtained the necessary licence. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
    Despite a marriage ceremony being conducted by a religious or civil official, most religious traditions maintain that the marriage itself is the act of the individuals themselves, either as a form of contract or as an exchange of vows, with the guests acting as witnesses.[citation needed]
    Within the parameters set by the law of the jurisdiction in which a marriage or wedding takes place, each religious authority has rules for the manner in which weddings are to be conducted by their officials and members."

    In the US there are around 75% of marriages performed by clergy. That can and does include clergy by other than Christian clergy.

    The laws of this land are in place to protect those that are not in the majority.

    What I find so interesting is who is financing the amendment against gay marriage in California.

    Colorado-based Focus on the Family and James Dobson. more than $400.00.

    The American Family Assn. headquarted in Tupelo, Miss . $500.00.

    The national council of the Knights of Columbus based in New Haven, Conn. $250.00.

    I for one question their motives in giving large sums of money towards new law in Calif.

  14. Alison Agins says:

    And something else.
    Marriage is NOT only to rear children. There are many reasons that people enter into a contract of marriage.

  15. Alison Agins says:

    And something else.
    Marriage is NOT only to rear children. There are many reasons that people enter into a contract of marriage.

  16. Alison Agins says:

    And something else.
    Marriage is NOT only to rear children. There are many reasons that people enter into a contract of marriage.

 
 
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