Civil Marriage: An Institution whose time has past?
Abstract
Marriage law is very much in the news. Court rulings have dramatically redefined marital law in the last fifteen years. Even church associations are not immune from this shift. But was it necessary, and is it the way forward? The question researched in this paper is the impact of attempting to codify into law what has traditionally been a religious rite, both on the institution of marriage itself, but on individual liberties as well. The paper will progress through the history of marital law and the rational used to establish those laws. I will demonstrate a cause and effect in redefining marriage and advance some statistics regarding these laws, and conclude with information about how, from a legal view, the traditional definition of marriage can be reinstated.
Keywords: same sex marriage, religious freedom, cohabitation, civil partnerships, redefining marriage
Redefining Marriage through the Law?
Literature Review: Final Assignment
Introduction
Two US Supreme Court (SCOTUS) cases have brought marriage and the law to the forefront of law, policy, and political posturing, those being United States v Windsor (2013) and Obergefell v Hodges (2015). The first case, Windsor, found that the federal definition of marriage as being between a man and a woman found in the Defense of Marriage Act to be discriminatory and as such, unconstitutional. Part of that ruling by SCOTUS was that states held the jurisdiction to define marriage. States across the country chose sides based on their constituencies, some allowing marriage between consenting adults with few restrictions, others shored up laws affirming the principle of marriage being between a man and a woman. This was in keeping with the Windsor ruling and was an expression of the states’ sovereignty in defining laws within the scope of the 10th Amendment of the Bill of Rights. All of this was struck down in the follow up case Obergefell, which found as discriminatory that framework at the state level.
The purpose of this paper is to examine the history of marriage in the United States of America, how we have arrived at where we are today, and where should we go in the future. Specifically, what is the impact of attempting to codify into statute a religious institution such as marriage on the institution of marriage as well as the individual liberties of the people? In my first literature review, I established a historical basis for my research through a review of peer-reviewed articles on the subject. While this paper focuses on marriage, included in this section is a review of religious freedom issues that go hand in hand with the topic. In the second paper I evaluated statistics as well as legal research regarding marital law. In this paper I will be tying those together as well as offering some solutions for reestablishing the tradition definition of marriage, and the wisdom in perhaps removing this religious rite from the legal realm.
Theoretical Framework
To understand the beginning of marital law in the United States, one must understand that at the Founding of this nation, marriage was not a legal construct. It was performed by the church, where available, and when not, or if the individuals were not members of the local church, or non-believers, they announced their intentions to live together, and after coordinating as necessary with families, were considered married under common law. In fact, when the first marriage laws were established, it was not clear to the legislators that they could even legislate this relationship. The common law marriage was the status quo for nearly 200 years.
Lauren Feldman stated that the first marriage laws were passed in the state of New York in 1809 (2023). This law was not so much to define marriage, as it was to assign financial responsibility in the eyes of the state. A definition of marriage was forthcoming in an 1827 law, also in New York. Other states passed laws up to the Civil War, and afterwards, when many southern states passed laws for similar purposes as New York, to organize the relationships of newly freed slaves. The purposes were honorable, no doubt, but in this field began to define, and limit people’s ability to marry, or not. Interracial marriages, under the same banner as defining marriage, were banned.
Most of these laws were passed by the various state’s legislatures, but that was not exclusive. In 1862 Congress passed the Morrill Anti-Bigamy Act which specifically targeted US Territories, prohibiting the practice of polygamy. Passed during the Civil War, this law was consistent with the Republican platform of eliminating two great evils, slavery and polygamy. While not mentioned by name, this law specifically targeted The Church of Jesus Christ of Latter-Day Saints (Vile, 2009). This law, and other marital laws, while espousing a public good, also had the effect of limiting the liberty of the people.
Indirectly related, religious mores such as cohabitation and adultery have also been legislated into statute, with many of those statutes still in the legal code, if not enforced (Soules, 2021). An interesting aside to this, is that we have arrived at a point where two people agreeing to live together without a paper from the state, which as previously stated was the status quo in early America (Feldman, 2023). Again, laws limiting individual freedoms. One must be careful at this point in separating a religious belief in an act being right or wrong from whether something should be a crime. Which introduces an important factor in this discussion, the ideal of freedom of religious express, or as referred to today as simply religious freedom.
The history of religious freedom in this country begins with the first settlers, the puritans and pilgrims. Jeremy Gunn (2004). The story is familiar, wanting to worship as they would, they left a country with an established state religion to a new land with no such structure. Other colonies in the Americas were established along similar lines, Pennsylvania and Maryland are examples. But what happened next? Gunn pointed out that in the case of the Puritans and Pilgrims, they sought to limit religious freedoms within their communities. When the Bill of Rights was constructed, the first freedom of the 1st Amendment was the free expression of religion, and that Congress was forbidden to establish a national church. The colonists had learned from past experiences how important separating government from any single religious faith. In the 19th and 20th Centuries, discrimination, either through statute or culturally was focused on non-majoritarian Christian faiths, such as Mormons and Catholics (Gunn, 2004). A note, Mormon is a nickname or slur for members of The Church of Jesus Christ of Latter-Day Saints, the preferred nomenclature of the faith.
The idea of uniting around what many considered uniting religious principles codified into law was to unite a nation, to rally around the flag, many would say. This is a significant part of Gunn’s work (2004), in that using this concept of religious unity would bring the nation together. Laws such as the Morrill Anti-Bigamy Law previously alluded to, as well as laws requiring recitation of the Pledge of Allegiance, including the phrase “One nation under God”, were passed with this intent. Again, laws limiting the free expression of individuals.
In recent history, Amy Lind pointed to two specific legislative actions that further attempted to codify religious mores into statute. Both were passed during the terms of US President William Clinton. One directly highlighting the topic of the paper was the Defense of Marriage Act (DOMA), which defined marriage federally as being between a man and a woman (Lind, 2004), along with allowing states to not acknowledge marriages that did not fit that description, though legal in other states. The other being the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform) which had significant impact on what would be considered nontraditional families. DOMA in particular was problematic, in that it flies in the face of the US Constitution’s Article IV, which requires states to accept the actions of other states, which would include marriage. Additionally, as federal law, there were certainly questions about Equal Protection.
In a series of court cases over the last 50 plus years, several state, and federal laws have been overturned. In Griswold v Connecticut (1965), a right to privacy, specific to this case, the use of birth control between consenting adults was established. This case led to others, such as Loving v Virginia (1967), which eliminated bans on interracial marriage, and Lawrence v Texas (2003), which decriminalized homosexual behavior. Ten years later, DOMA was mostly repealed in United States v Windsor (2013), due to Equal Protection concerns. DOMA was federal law, and had the impact of eliminated structures throughout the federal code as well as a federal definition of marriage, which traditionally had been state regulated. A not to this, in 1878 SCOTUS ruled that the federal government could indeed regulate marriage in Reynolds v United States (1878). This ruling addressed the constitutionality of the Morrill Anti-Bigamy Law. Finally, the case Obergefell v Hodges (2015) overturned all state laws that codified into statute the definition of marriage as being between a man and a woman.
Laws codifying marriage as well as other acts being struck down due to the evolving morality of a pluralistic society. But it goes beyond striking down these laws. By them being in the public square, it has allowed for the redefinition of terms such as marriage in society. And more, as that redefining has an adverse impact on believers. Timothy Bradley (2020) highlighted court cases as well as in practice, the impact this redefinition has on those believers. From having their business threatened in the case of a pizza parlor in Indiana, to SCOTUS cases regarding the ability of people to serve the public according to their personal beliefs as in Masterpiece Cakeshop v Colorado Civil Rights Commission (2018), which, while going in favor of the cakeshop, did so on a technicality, which invited future suits. The impact of this redefinition has yet to fully play out and will undoubtably be to the detriment of people of faith.
Christian Worldview
Marriage is a contract, or better said, covenant, between the husband, wife, and God. This was literally from the beginning as stated in Genesis 2:24. (KJV). The state, especially in nation with a diverse population, and a ban on a national religion, would have no authority to create any bond with God. That is the key to this sacred rite, as codifying into statute would seem to supplant God with the government. I am reminded of the Master’s response to paying a tax, when He stated “Render therefore unto Caeser that which is Caeser’s: and unto God the things that are God’s” Matthew 22:21 (KJV). Marriage is a religious issue, and by crossing it over into the civil realm itself redefines the institution. As we have seen from the evolution of law, and the overturning of same based on changing morals, I am reminded of when John Adams, a founder involved in the Declaration of Independence, the US Constitution, and 2nd President of the United States said that the Constitution was “fit only for a righteous people” (Adams, 1798). A government that was established, with few mandates on the people required a people that was morally upright, that understood right from wrong.
Theory Model
Daniel Hill (2022) did a study on what would society look like without a legal “marriage”. Marriage is in quotation marks, as Hill felt that as marriage is a covenantal relationship with God, a statutory relationship between two individuals cannot be marriage. Part of the purpose of this paper is to emphasize the importance of defining terms, and that includes reeling in the definition of marriage. Hill explored what changes would need to be made to society and the legal code in the United Kingdom to remove marriage from it (Hill, 2022). Part of marriage in the civil realm is divorce. Jesus Christ mentioned divorce in the Mosaic Law, and how it was suffered by God, but not ordained by Him (Matthew 5:31, KJV). Divorce is a significant factor in tracking marriage statistics, as we shall see in the next section.
Findings from Literature Research
Divorce is an ugly topic. It is also a fact of modern life. As we examine the effect of the ever-changing definition of marriage, we also must study the definition of divorce, and its impact on society. Prior to the 1960s, in most locations, to receive a divorce, a causal factor was needed. Whether adultery, as was the biblical justification, or some other cause, such as neglect or abuse. Beginning in the latter half of the 20th Century, the concept of no-fault divorce, or divorce “just because” (my phrasing), has become the norm, with no justification required. Today, marriage is a 50-50 proposition, in that half of all marriages end in divorce. Tarja Viitanen (2014) did a study on trust and divorce and concluded that with the liberalization of divorce law, the rate increased substantially, before equalizing. She attributed that equalization to an increase in cohabitation (Viitanen, 2014). The institution of marriage was no longer the bedrock that it once was.
A group of three studies was conducted in Europe examining whether there is a link between the liberalization of divorce law and an increase of cohabitation specifically. Perelli-Harris et al (2017) compiled these statistics in three groups based on how various European nations changed their divorce laws and when they did so. Their findings strongly suggest a correlation between divorce law liberalization and increases in cohabitation. As marriage was diminished through the liberalization of divorce, the impetus to legally marry seemed to decline.
With marriage being redefined, there is some movement to forego the civil marriage while having a strictly religious marriage ceremony performed. Broyde and Peltzer (2020) examined this very issue in the Orthodox Jewish community. They found that when couples opted for this path that they usually also entered into a legally binding contractual agreement, which addresses the loss of protections that comes with foregoing the legal marriage. They also surveyed the legal aspect in other countries of following this path. They examined whether a civil marriage separate from a religious ceremony was required for it to be legal and found in some countries simply performing a religious marriage without civil authority was illegal (Broyde and Peltzer, 2020). What was interesting about that is that in some of those countries, cohabitation with no legal or religious marriage was legal. It seemed that the intent was to replace the covenantal relationship with God that a marriage was intended to create with a contractual relationship with the state (Broyde and Peltzer, 2020).
Throughout the history of marital law in the United States, laws were influenced significantly by the predominantly Protestant electorate, and as such, reflected those principles. This allowed for a very simple bridge between the religious and the secular. But what about those non-majoritarian faiths, and how do they fit in? Joel Nichols (2012) reviewed attempts to rewrite civil marriage statutes in Canada and Britain, to be more compliant with sharia (or Muslim) law. This is a significant movement, reflective of the increase in the Muslim populations in those countries. One issue that is caused a complete realignment of civil law mirroring the religious is the issue of gay marriage. This was an issue that was foreseen when DOMA was made into law. In the case Goodridge v Department of Health (2003), the Massachusetts Supreme Court found that marriage was a civil right, and as such, laws defining marriage as being between a man and a woman violated the Equal Protection Clause of the 14th Amendment. While the Court found that religious entities were not constrained by the ruling, civil laws regarding marriage were. This case signaled the divorce between civil and religious marital law.
Goodridge brought up an interesting point, in that marriage was a civil right. When the US Constitution was drafted, and the Bill of Rights later, the document was a series of negative rights, or rather, what the government could not do to you. It would appear that a right to marriage would fall into the category of positive rights, or rather what the government can do for you. This conflict was studied by Gregg Strauss (2016). He concluded that it was indeed a positive right. The government assumed responsibility for regulating marriage, as in who can marry whom. In exchange, the government agreed to certain protections to both parties, in the event of a marital dissolution (Strauss, 2016). Throughout the Western world, marriage has become a segment of civil society, with religion being optional; contractual instead of covenantal.
Establishing a need for further study on this contractual vs covenantal relationship. Ripley et al (2005), did an exhaustive study on how various groups felt about the marital relationship. They framed it as a collective partnership, which would be the covenantal order, or an individualistic one, which is the contractual. They studied three groups, with a very high participation rate, and set an excellent baseline to build future studies.
I wanted to address one final study in this section, completed by Anja Bredal. She studied the marital system in Norway, specifically comparing religious and civil marriage. She broke down the civil requirements for marriage, and what was required for one to officiate in an officially recognized marriage. Her research focused on those of Islamic faith, and how administrators were chosen and authorized by the state to conduct marriages. An interesting note is that while some mosques allowed for non-civil sanctioned religious marriages, those authorized by the state to officiate in marriage would not normally perform those (Bredal, 2012).
The creation of the civil right of marriage led to the inevitable results of Windsor and Obergefell. Phillips and Yi (2018) examined the path forward regarding same sex marriage, while looking through the prisms of past decisions. These cases, Loving, Roe v Wade (1973), and Reynolds. These cases all dealt with moral issues and how they were handled. They also tried to provide a glimpse into the future, based on these and other cases. They noted that while Goodridge and Obergefell, they asked for how long, as it seems that part of the civil right issue is more than the recognition of this definition of marriage, but the universal acceptance of it (Phillips and Yi, 2018).
Literature Area: The Legal Construct of Marriage
I wanted to lead this section with the article by Feldman “Creating Law through Regulating Intimacy: The Case of Slave Marriage in Nineteenth-Century New York and the United States” (2023). She begins by pointing out one of the first laws regulating what had been a common law or religious affair, marriage. This foundation is important as we need to understand how marriage became a civil matter.
Nancy Cott, in her book review, broke down the impact of marital law, and how it fit in the federal construct. This is important to understand, as while it was not fully understood whether laws could be made regarding marriage, it was understood that if they could, it would be within the prerogative of the state, not the federal government. (Cott, 2019).
Daniel Souleles (2021) examines the impact of marital and other moral laws on society, as to the enforcement and observance of those laws, including adultery, cohabitation, and polygamy.
Amy Lind in “Legislating the Family: Heterosexist Bias in Social Welfare Policy Frameworks” (2004) examines welfare reform as well as DOMA. DOMA is unique in that it is a federal application of marital law, including allowing states to not accept same sex marriages performed in other locales where it was legal to do so.
Joel Nichols in “Marriage: Civil, Religious, Contractual, and More!” (2012), discussed the work on adding Sharia law into the legal marriage lexicon in Britain and Canada. He mentioned the construct in the United States being built upon Protestant principles, which came to a halt with the Massachusetts case Goodridge.
Phillips and Yi in “Debating Same-Sex Marriage: Lessons from Loving, Roe, and Reynolds” (2018) attempt to examine the legal path forward with the Windsor and Obergefell rulings setting the tone for the future.
Literature Area: Religious Freedom
It is a loaded term, religious freedom. It has become synonymous with a counterculture movement today, to protect a right enshrined by the US Constitution. If only it were that easy.
Ted Jelen’s work “Political Esperanto: Rhetorical Resources and Limitations of the Christian Right in the United States” (2005) highlighted that too often those claiming religious freedom are, ironically, limiting the freedom of others through legislating their values into statute. It limits the ability of others in a pluralistic society to enjoy their religious freedom.
Jeremy Gunn examined the concept of religious freedom, and how it compared to “laicite” or secularism in France in his work “Under God but not the Scarf: The Founding Myths of Religious Freedom in the United States and France” (2004). What he found was like what Jelen mentioned, that those seeking religious freedom would intentionally or not, limit the freedom of others not of their faith. Ultimately, many used the legislated religious mores to unify, or control the population. That those faiths not in the majority were frequently discriminated against, and bullied, by the government itself frequently, as well as the population in general.
Timothy Bradley in “Religious Liberty, Discrimination, and Same-Sex Marriage: Escaping the Obergefell Catch-22” (2020) writes on the impact the Obergefell decision had on those who believe in the traditional definition of marriage. While Justice Kennedy writing for the Court in Obergefell noted that there was room for those with traditional beliefs in the ruling, the reality has been far different. Bradley highlighted the case of small pizzeria in Indiana that ultimately had to close because of the owner’s stated beliefs, as well as noting the many SCOTUS cases that would follow challenging a variety of businesses on providing a public service, or not, according to their beliefs. Man must have the freedom to choose what to believe, or not, that is true religious freedom. The problem is that this is not a given anymore.
In “Marriage, Morality, and Federalism: The USA and Europe Compared” (2017), Briand Soucek reviewed the differences between the US and Europe when it came to the Courts and same sex marriage. He found that Europe lagged behind the US primarily due to the European Court on Human Rights gave deference to the moral argument against same sex marriage to the various nations that still held those beliefs, wherein SCOTUS tossed aside any moral argument (Soucek, 2017).
Michael Homer in “Separating Church and State in Italy: Civil Marriage and the Mormon Connection” (2019) detailed the struggle of creating civil marriage independent of the Catholic Church in Piedmont, to allow for marriages to be performed for the minority that was not Catholic. Included here, as the Italians recognized the importance of maintaining marriage as a sacrament of the church. The efforts put forward to prevent this separation were immense, and it was a long fought battle (Homer, 2019).
Literature Area: Relationships other than Civil Marriage
As a reminder, prior to 1809, marriage was strictly a religious and/or common law arrangement. It is fitting, that the final review segment, we examine cohabitation, and alternatives to civil marriage.
Daniel Hill in “Could the State do without Marriage Law” (2022), pointed out that marriage by statute does not meet the proper definition of marriage. He broke down the hypothetical of what would need to change to remove marriage from the legal lexicon. While his study focused on the United Kingdom, it is equally applicable to the United States, as much of our law is based on English Common Law. He addressed objections to removing the legal construct, including how protections currently in law would work without it
Tarja Viitanen in The Divorce Revolution and Generalized Trust: Evidence from the United States 1973-2010 (2014) examined the impact of divorce on marital trust, and the generational issue of the evolution of divorce law. Statistically what was born out was that as divorce become easier to get, the numbers increased to a point of leveling off (Viitanen, 2014). The reason for the leveling off? An increase in cohabitation.
Perelli-Harris et al did a study of European states like Viitanen’s. In “The Rise in Divorce and Cohabitation: Is there a Link?” (2017). They based their study on three nation groupings according to when divorce laws were liberalized, which is to say availability of no-fault divorce, and the divorce and cohabitation statistics for those groups (Perelli-Harris et al, 2017). Their findings found significant correlation between divorce law changes and cohabitation. Divorce had a strong impact on the decision to cohabitate whether the individuals had direct experience with divorce or not.
In “Rethinking Religious Marriages when Done Without Any Civil Marriage: Non-Marriage, Neo Marriage, Marriage, or Something Else” (2020), Broyde and Peltzer studied a practice amongst Orthodox Jews of marrying non-civil religious marriage. Their study examined the lack of legal protection in choosing this course, and how some individuals are managing that in the civil realm. They also examined marriage law in other parts of the world as to whether that was something that could even be done. They found that laws varied, and that in some places, it was illegal to have a religious marriage without a civil component, even though cohabitation was legal in many of those countries (Broyde and Peltzer, 2020).
Setting a scale to be used for future studies is no easy task. Ripley et al (2005), created such a scale to define feelings towards covenantal or religious marriages as opposed to contractual or civil marriages. In “Covenantal and Contractual Values in Marriage: marital Values Orientation toward Wedlock or Self-Actualization (Marital VOWS) Scale”. They conducted three different studies with diverse groups, each having high participation (Ripley et al, 2005). In their work, their methodology for the study was clearly explained, and established a very solid baseline for future studies.
In “Contesting the Boundaries between Civil and Religious Marriage” (2018), Anja Bredal examined the legal marriage structure in Norway, as well as the impact religious entities had on it. She focused on the Muslim community for consistency in the study. She found that those officiators in mosques that had state authority to marry did not engage in religious only marriages, while some of the mosques that were not authorized to legally marry did provide religious weddings for a number of reasons (Bredal, 2018).
“Abolishing Marriage: Can Civil Partnership Cover It?” by Beresford and Falkus (2004) puts forward a very practical solution pre-Windsor and Obergefell. They point out that the Civil Partnership law enacted in Britain relegated to 2nd Class Same Sex relationships, by denying them the term marriage, even if legally, they were identical (Beresford and Falkus, 2004). Their proposal was to apply the Civil Partnership law to all familial couple relationships, and put marriage back to where it originated, as a function of religion.
Literature Area: Federalism in Marriage
“Morality Policy and Federalism: Innovation, Diffusion and Limits” (2017), Hollander and Patapan explore an important aspect to this argument. At the beginning of the article, they highlight that as issues are portrayed in moral terms, there is much less flexibility in the discussion. They discuss the issues of Same Sex Marriage and the legality of marijuana laws.
In “Presidential Constitutionalism and Marriage Equality” (2019), William Eskridge Jr. breaks down the political process of overturning DOMA, from the administration of President Barack Obama. It examines the inherent federal issues leading to the Windsor decision, as well as SCOTUS overturning all same sex marriage bans in Obergefell.
Gogarty et al (2018) asked a question regarding the ability of people of faith to opt out of providing services for Same Sex Marriage. Their review studied the laws of countries where these marriages are legal and recognized. They highlighted that the United States is different than most, due to the unique nature of federalism between states and the national government. The balance of course is between the protection of entities that may have religious beliefs that contrast with the law, and individual protections against discrimination (Gogarty et al, 2018).
In “Federalism and Full Credit: Must States Recognize Out of State Marriages?”, Feldmeier (!995) explored the question of whether states had to recognize Same Sex Marriages from states were it was legal prior (emphasis mine) to the passage of DOMA. He provided insight into this topic, as well as what Congress could do to address the issue. He addressed Court opinions that potentially allowed for that to occur. The federal hierarchy was discussed, and some interesting predictions regarding future court actions were advanced.
Discussion
A key thread to my question is the impact of legislating morality. Hollander and Patapan (2017) lead their article with the very issue of a changing morality in legislation, as well as the inflexibility of positions that have a moral framework. Two centuries of building a legal framework for marriage, have culminated in a redefinition of the term. Even within the last two decades this evolution can be seen in the political posturing of the Presidency, from the easing of federal restrictions and ultimately the refusal of the Obama Administration to defend DOMA in the courts, all while complying with the law administratively (Eskridge, 2019).
Federalism
Prior to DOMA, Feldmeier (1995) addressed the potential federal issues with the Hawaiian Supreme Court potentially overturning laws banning Same Sex Marriage. I have to reevaluate to an extent my view of the unconstitutionality of DOMA. (which I have held since its passage in 1996), as the issue of Congressional intervention in what seems a clear Article IV Full Faith and Protection Clause problem is not so clear cut. Feldmeier (1995) breaks down the federal issues interstate, the ability of Congress to address them, and what impact the courts could have on all of it.
Greater contrast could not be drawn than between the two SCOTUS cases Windsor and Obergefell. The Court’s makeup for the two cases was the same, and the opinion was written by the same Justice, Anthony Kennedy. This is what makes this situation so unusual. Kennedy found, in the former that DOMA violated federalist principles, in that it was a federal mandate on the various states on an issue that was a state one. In the latter, no federal argument was made, in fact, it struck down those principles of federalism with a blanket elimination of state law throughout the country. Soucek (2017) made this distinction in his work comparing the deference the European Courts gave to the moral positions of the various nations, while noting that those morals seemed to be changing. The crux of these cases reflects different styles of federalism. Elazar’s matrix model shows a series of shared responsibilities in government, not only with different levels of government, but with nongovernmental actors as well (Elazar, 1987). With Obergefell, SCOTUS attempts to revamp marriage law into a hierarchal one, with the federal government dictating to the states how marriage is to be defined.
One aspect not frequently considered in the discussion of federalism is that this construct is not necessarily limited to government entities. In the case of Same Sex Marriage, we see the progression from Windsor, where the Court found that the federal government could not define marriage as it was the domain of the states, to Obergefell, which found that this federal arrangement was overridden by due process and equal protection clauses of the US Constitution. However, Obergefell maintained the rights of religious stakeholders to maintain their doctrine, if contrary to the ruling, for now (Gogarty et al, 2018).
Research Question
Which brings us back to where we started. The question is what is the impact of putting marriage, a religious rite, into the legal realm? The impact on the institution of marriage, and, the impact on individual rights. Two additional articles weighing in were the struggle to separate marriage from religion in Italy, and an alternative to redefining marriage to accommodate a pluralistic society. In Italy, Homer (2019) discussed the struggle in a quasi-theocratic state of Italy to remove the religious aspect of marriage so that religious minorities did not have to go to the Catholic Church to get married.
Beresford and Falkus (2004) provided a very common-sense solution for the upcoming problems in the UK and applies equally here in the United States. They proposed adopting the Civil Partnership Act to include all such relationships, and to strike the term marriage from the legal lexicon entirely (Beresford and Falkus, 2004). The reason that there was such a battle over Same Sex Marriage in the US is due to the religious nature that a plurality, if not majority, of Americans feel towards the institution of marriage. Is it too late?
I have compiled considerable data that at best draws an incomplete picture. Too often I have had to use international studies which do not fit completely within the framework that I am theorizing. Religious freedom does limit rights. Marriage law does limit rights. By trying to recreate religious marriage as a legal construct, while ignoring, or minimizing the impact on individual freedoms in a pluralistic society, is an area where more research is needed.
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