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OPEN TO THINKING Marriage: Confusion of State and Church
A recurring column
by Nick Patricca
2015-08-05

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It is now time to remove from all religious authorities the power to officially represent the state in recognizing the legal union of two competent adults in our society.

It is an unhealthy and unnecessary confusion of powers to permit a member of the clergy to be the official celebrant of both the legal and religious marriage ceremonies.

The recent Supreme Court decision to recognize the constitutional right of gay citizens to enter into a valid legal marriage makes this separation of powers all the more necessary and urgent for the proper functioning of our body politic and for avoiding the many specious religious objections raised against the validity of gay marriage in our society.

Our current legal and social conversations about marriage have been plagued by a systematic ambiguity based in a fundamental confusion of civil and religious jurisdictions. The refusals "for religious reasons" of some civil authorities to issue marriage licenses for gay marriages or of a baker to make a wedding cake for a gay marriage, or of an employer to hire or retain people openly entering a gay marriage are examples of this persistent, endemic confusion in our thinking on matters of church and state.

We need to clearly affirm the following three principles of marriage in our society: 1 ) the competent adults marry each other; 2 ) the civil authority grants the legal civil recognition; 3 ) the religious authority grants the religious recognition. The civil officiant only has power to recognize the civil marriage; the religious officiant only has the power to recognize the religious marriage.

I am frequently asked "to marry" people. I am always honored by the request but always decline—for many reasons, the principal reason being this confusion of jurisdictions. In the state of Illinois in the county of Cook, for example, to officiate at a wedding one must be a judge or the County Circuit Clerk, or an ordained minister of some sort of church ( religious denomination ). Since I am neither a judge nor the Cook County Circuit Clerk, I would have to become "ordained" by an officially recognized religious authority. Many people choose to become ordained by the Universal Life Church or some other such legal entity constructed to meet the various state and county laws governing marriages so that they can officiate at a wedding. For me, this type of ordination perpetuates a bad marriage between church and state in our society—not to mention the tensions such an ordination creates with one's personal spiritual and religious traditions.

This confusion of civil and religious jurisdictions causes some people to fear that their church will be forced by civil law to marry gay couples even though their church does not recognize gay marriage. The best way to end this confusion is to remove the church from the business of state marriage.

Clarifying the proper jurisdictions of church and state would greatly assist our political discussions of the role of religion and faith in our society, especially in regard to abortion and birth control and other issues involving the idea of religious freedom.

The criteria that the state establishes for recognizing the marriage of competent adults belong to the realm of politics and are based on our Constitution and our legal and social traditions. The criteria that a church or a religion employs are based on its sacred texts and traditions. Even when civil and religious traditions overlap in any given matter, we must distinguish which values are civil and which values are religious. If you believe that homosexual activities are sinful, that is a religious judgment. If you believe they are criminal, that is a civil legal judgment.

The decision of our Supreme Court to recognize gay marriage has provoked discussions on how this decision might affect other forms of marriage arrangements such as polygamy or group marriage. This discussion represents a test case for us to avoid sensationalistic headlines and to delineate what matters are properly civil and what matters are properly religious.

In December of 2013, a portion of the ban on polygamy in Utah was partially struck down by a Federal Court because it was based on the legal premise that co-habitation is criminal. This decision presents the legal judgment that group co-habitation, religious or otherwise, that does not seek state marriage sanction, is protected by the U.S. Constitution [jurist.org/paperchase/2014/08/federal-judge-partially-strikes-down-utah-polygamy-law.php&; .

If we are going to discuss "What Is Marriage" in our society and what values marriage seeks to preserve and promulgate, we must first separate civil marriage from religious marriage. Then, perhaps, we can have a productive conversation.

Nick Patricca is professor emeritus at Loyola University Chicago, president of Chicago Network and playwright emeritus at Victory Gardens Theater.

© nicholas.patricca@gmail.com


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