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