Marriage Separate Church State 1[1]

8/3/2019 Marriage Separate Church State 1[1]

1/27

Joseph R. Long, A Treatise on the Law of Domestic Relations 4, n. 5 (1905).1

The holiness of the matrimonial estate is left entirely to ecclesiastical law. 1 Bl.2

Comm. 433. Accord, II Kent Commentaries on American Law 87. William the

Conqueror separated jurisdiction of the English church from that of the secular courts in

1085 and gave the former exclusive jurisdiction over matrimonial issues. Franklin C.

Setavo, A History of English Ecclesiastical Law (Part I), 18 B.U.L. Rev. 102, 104-107

(1938). During the High Middle Ages, marriage constituted one of the main objects of

papal legislative activity, as well as academic studies at Paris and Bologna. American Law

Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations89 (2002).

Genesis 2:24, Genesis 1:27 ff, Matthew 19:4 ff, 1 Corinthians 6:16, Ephesians 5:31 ff.3

American Law Institute, n. 2supra at 90.4

American Law Institute, n. 2supra at 63. Indissolubility was also scripturally5

mandated. Matthew 19:9, 1 Corinthians 7:10-11, 39.

SEPARATING CHURCH AND STATE: GIVE

CEREMONIAL MARRIAGE BACK TO THE

CHURCH AND THE PEOPLE

From medieval times marriage was both a sacrament and an institution of the

church. For a millennium or more, the ecclesiastical courts, to the complete exclusion of1

the civil courts, had jurisdiction over the determination of the existence of marriage and the

rights and duties of the spouses. Based on Biblical pronouncements, marriage was2 3

regarded by the church to be indissoluble.4

The Christian institution of marriage focusing on lifetime monogamy, displaced

marital forms of the Roman Empire and barbarian lands, as well, that allowed the taking

of multiple spouses in some cultures by permitting polygamy and in other cultures by

tolerating quick and unrestricted divorce and remarriage.5

The first intrusion of temporal authority into the regulation of marriage may have

been during the reign of Henry VIII, when statutes modified the permissible degrees of


2/27

25 Henry VIII, ch. 22, 3, and ch. 38, allowing marriages based on the6

relationship of uncle/niece and aunt/nephew.

That marriage might be validly contracted by mutual premises alone . . . without7

the presence of benediction of a priest, was an established principle of civil and canon

law antecedent to the Council of Trent. Hallett v. Collins, 10 How. (U.S.) 181 (1850).

Cohabitation under marriage-like conditions was regarded by the medieval church to be

a lawful marriage. American Law Institute, n. 2supra, at 95. Geoffrey May, Marriage

Laws and Decisions in the United States 11 (1929).

c. 1, Trid. Sess. XXIV, De reformations matrimonii, Canons et Decreta Sacrosanti8

Oecumenici Concilii Tridenti sub Paulo III, Julio III, et Pio IV (1903).

Gran Lind, Common Law Marriage 122, n. 126 (2002); II Frederick Pollock and9

Frederic W. Maitland, History of the English Law 368 (2d ed. 1898).

26 Geo. II, c. 33.10

Regina v. Millis, 10 Cl. & Fin. 534 (1844).11

Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 161 Eng. Rep. 665 (1811).12

2

consanguinity from those found in the 18 chapter of Leviticus.th 6

While marriages were typically solemnized in church ceremonies, formless

marriages, those in which the spouses simply had declared their intention to be married and

had begun living together, were legally recognized.7

The Council of Trent in 1563 imposed the requirement for the validation of

marriage by solemnization in a ceremony before a priest. In Protestant countries formless8

marriages remained valid. It was not until 1753 that England enacted a statute, Lord9

Hardwickes Act, requiring priestly solemnization; this law was judicially construed to10

reject the validity of a marriage before a Presbyterian minister in Scotland. Also formless11

marriages continued to be valid in Scotland. The American states unanimously refused12

to accept Lord Hardwickes Act as part of the common law and most of the states initially


3/27

Gran Lind, n. 9supra, at 135, n. 16, 137, 140-149; George Elliott Howard,13

A History of Matrimonial Institutions II 125-327, III 170-185 (1904).

The term itself is traceable to I Kent, Commentaries on American Law 2 (1826).14

Some American courts regarded common law marriage to have become part of the

common law. E.g.,Rose v. Clark, 8 Paige (N.Y.) 574 (1841).

E.g.,Milford v. Worchester, 7 Mass. 48 (1810). It is not clear that the enactments15

of marriage form requirements were always deemed mandatory. W. J. Brockelbank,

La Formation du marriage dans le Droit des Etas-Unis 250 (1935); Gran Lind, n. 9

supra, at 155-157, nn. 105-109.

Michael Grossberg, Governing the Heart; Law and the Family in Nineteenth16

Century America 75-79 (1985). E.g., Ala. Code 8996, 8997 (pastor of any religious

society may perform marriage according to the rule or custom of the society;

Mennonites, Quakers and other societies may solemnize marriages according to

their forms).

Gran Lind, n. 9supra, at 957.17

Michael Grossberg, n. 16supra, at 211-212. Motivations to abolish common18

law marriage in many states included the avoidance of disputes and uncertainty.

Gran Lind, n. 9supra, at 176. SeeDuncan v. Duncan, 16 Ohio St. 181, 188 (1859).

3

validated the formless marriage, requiring for its existence only that the couple declared

their intention to be married and lived together as husband and wife, consistent with

Scottish law. These non-ceremonial marriages came to be known as common law13

marriages. Even in those jurisdictions maintaining the requirement of ceremonial14

marriage, there was wide acceptance of varying wedding forms and persons authorized15

to perform weddings. Of course, in all jurisdictions, couples have always had the right16

to choose between church and civil wedding ceremonies.17

Understandably, widespread dissatisfaction arose over the formless common law

marriage. Absent any public record, immense evidentiary problems occurred, frequently

in the context of multiple claimants fighting over marital shares of deceaseds estates.18


4/27

Michael Grossberg, n. 16supra, at 158-159, 956-957; Chambery v. Dickson, 219

5.&R. (Pa.) 475, 476 ff (1816).

[C]overed wagon days are over . . . [;] no person lives, who cannot in some

20

manner easily reach the county court house. In re Estate of Soeder, 7 Ohio App. 271,

220 N.E.2d 547, 562 (1966).

As of 1900, two-thirds of the states recognized common law marriage.21

Michael Grossberg, n. 16supra, at 176, 781.

Plus the District of Columbia. Michael Grossberg, n. 16supra, at 781.22

Between 1970 and 2004 marriage rates per 1000 persons declined in the United23

States (11% to 8%), Europe (8% to 5%), and Australia/New Zealand (9% to 5%).

Gran Lind, n. 9supra, at 784. Bishop, an early commentator on domestic law,

referred to form requirements for marriage as cumbersome and artificial barriers.

Joel Prentiss Bishop, I New Commentaries on Marriage, Divorce and Separation

457 (1891). Presently marriage is in decline because of high rates of divorce,

delayed marriage, cohabitation and unwed parenthood. Judith Stacey, Toward Equal

Regard for Marriage and other Implied Intimate Affiliations, 32 Hofstra L. Rev. 331

(2003).

4

Also early justifications for common law marriages, that of remoteness and

unavailability of celebrants, witnesses and registry offices, disappeared with increasing19

population density and community organization, as well as better transportation.20

Consequently, many states began rejecting or repealing authority from common law

marriage, a process that began in the Nineteenth Century and extended into the early

Twentieth Century. Finally, only thirteen states permitted common law marriage.21 22

While the governing authorities labored to put an end to formless marriages,

couples continued to cohabit without matrimonial ceremonies. As non-marital23

cohabitation became more commonplace, criminal penalties for this conduct fell away, and


5/27


The state interest in imposing duties of support and property allocation, that is,25

controlling the dissolution of marriage, also weighed heavily in states decisions torecognize formless marriages in the early days of our country. Michael Grossberg,

n. 16supra, at 160-161.

These courts reasoned that to allow relief would be to damage the institution of26

marriage and reintroduce common law marriage. E.g.,Hewitt v. Hewitt, 77 Ill.2d 49,

394 N.E.2d 1204 (1979);Marone v. Marone, 50 N.Y.S.2d 481, 407 N.E.2d 438 (1980).

18 Cal.3d 660, 557 P.2d 106 (1976).27

Gran Lind, n. 9supra, at 800-812.28

Beginning in Sweden with case law in the 1970's and legislation enacted in 1987.29

Gran Lind, n. 9supra, at 800-820.

See text at n. 2,supra.30


5

by the end of the Twentieth Century, cohabitation was universally de-criminalized.24

Couples relationships, when they ended by separation or by death, brought about demands

for rights, particularly of property division and inheritance. At first these claims were25

rejected by the courts. Eventually, following the leading case ofMarvin v. Marvin,26 27

many, but not all, jurisdictions began adjudicating these claims on their merits by means

of doctrines such as partnership, implied contract, and unjust enrichment. In Europe,28

Canada, Australia and New Zealand, similar developments occurred in recent years.29

As noted above, under early English law, all matters relating to marriage were

determined by the ecclesiastical courts. The church tribunals thus exercised what we30

would now regard to be governmental authority. As statutes relating to marriage came to

be enacted, secular courts began to adjudicate certain marital issues. For instance,31


6/27

Joseph R. Long, n. 1supra, at 12, 130-131; Epaphroditus Peck, The Law of Persons32

and of Domestic Relations 20-22 (2d ed. 1920); Geoffrey May, n. 7supra, at 8-10.

Joseph R. Long, n. 1supra, at 12, 22-25; Epaphroditus Peck, n. 32supra, at 134-33

135; Geoffrey May, n. 37supra, at 8-10.

The American society had no state church. Many emigrated here under state34

confessional oppression. Gran Lind, n. 9supra, at 152.

See text at nn. 3, 4.35

No-fault divorce was adopted first in California in 1970. By 1985 it had spread36

to half the states, and it became universal before the turn of the century. Gran Lind,

n. 9supra, at 882. See L. J. Weitzman, The Divorce Revolution 15, 41-43 (1985).

N. E. Dowd, Law, Culture and Family: The Transformative Power of Culture37

and the Limits of the Law, 78 Chi-Kent L. Rev. 785, 789 (2003).

6

proceedings to set aside marriages based on consanguinity and impotence, were adjudicated

by the canonical courts, whereas those dependent to prior marriages, unsoundness of32

mind, and want of sufficient age, were within the jurisdiction of the civil courts. The33

American states never accepted the authority of ecclesiastical courts to determine the lawful

existence of marriage and to decide about marital rights, because church jurisdiction over

marriage would have plainly violated the separation of church and state.34

The former indissolubility of marriage over time was altogether swept away, and35

at present divorce on demand is available in every American jurisdiction.36

The preceding discussion makes it plain that changing family practices change the

law, but the law ultimately is not successful in changing the family. The cultural reality of

the family can be transformative or subversive of the law. Law is an ineffective instrument

to accomplish change of the family. The law may facilitate change or support it, but the

law cannot force change or stop it. With this reality in mind, we can consider and37


7/27

The right to marry is of fundamental importance, one of the basic civil rights38

of men. Zablocki v. Redhail, 434 U.S. 374, 383-384 (1978). The freedom to marry

has long been recognized as one of the vital personal rights essential to the orderly

pursuit of happiness by free men. Marriage is one of the basic civil rights of man,

fundamental to our very existence and survival . . . Loving v. Virginia, 388 U.S. 1,

12 (1967).

___ U.S. ___ (2003).39

478 U.S. 186 (1986).40

41

Leviticus 18:22 and 20:13, Romans 1:26-27, I Corinthians 6:9, I Timothy 1:8-10.42

7

determine what should be the reasonable response of the law to current demands for same-

sex marriage. But before doing so, we must consider the constitutional limits that apply.

The right of a heterosexual couple to marry is a firmly established constitutional

right. The right of homosexuals to engage in physical sexual activities in private was38

established, at least in those jurisdictions where heterosexual sodomy is not criminalized,

in Lawrence v. Texas, a 2003 decision that overruled the 1986 case of Bowers v.39

Hardwick. Understandably, advocates of same-sex marriage anchor their arguments on40

these two constitutional doctrines.41

Much of the controversy and anger relating to same-sex marriage stems from the

traditional deeply religious character of marriage, and the belief that this ancient sacrament

of the church is violated when the union of homosexuals is blessed in violation of Biblical

commands.42

The struggle for governmental acceptance of same-sex marriage is mirrored,

actually exceeded, by disagreements within church denominations about whether the


8/27

43

William N. Eskridge, Jr., The Case for Same-Sex Marriage 189 (1996).44

45

46

47

Joseph R. Long, n. 1supra, at 75; Goshen v. Stonington, 4 Conn. 209, 10 Am.48

Dec. 121 (_____).

8

churches pastorates must consecrate same-sex unions. Some denominations, including43

evangelical Lutherans, Episcopalians, Congregationalists, most Quaker meetings,

Unitarian-Universalists, and Reformed Jews have opted to perform marriages of same-sex

couples. Other denominations have refused, including Catholics, Greek Orthodox,44

Methodists, Presbyterians, and Missouri and Wisconsin Synod Lutherans. These45

decisions have been characterized by bitter struggles, resulting in departures of numerous

disaffected members, clergy, and even whole congregations.46

If pastors of churches were not expected to carry out the state function by

performing marriages, the intensity of conflict within religious denominations would be

greatly diminished. Same-sex marriage applicants would no longer be able to claim that

the church, by not marrying them, was depriving them of their right to a ceremonial

wedding that is recognized by the government and confers a concomitant array of legally

recognized benefits.47

When a member of the clergy performs a wedding, he acts as an agent of the state.48

The extrication of the clergy from this role may not only be wise public policy, but also


9/27

403 U.S. 602 (1971).49

459 U.S. 116 (1982).50

459 U.S. at 127.51

463 U.S. 783 (1983).52

9

may, as well, be constitutionally mandated under church-state separation principles.

A legal connection between church and state amounts to an unconstitutional

establishment of religion, according to the familiarLemon v. Kurtzman tests, unless49

(1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and

(3) it avoids creating an excessive entanglement between government and religion. A

violation of any one of these criteria is a violation of the establishment clause. The aspect

of marriage celebrated by a member of the clergy that creates the greatest constitutional

problem, is the delegation of a state function, the formation of a marital union, to a church.

Pastoral celebration of marriages becomes highly suspect constitutionally in light ofLarkin

v. Grendals Den, Inc. That decision invalidated a law giving religious entities the power50

to veto applications for liquor licenses in areas near churches and religious schools. The

court reasoned that the statute was susceptible to being used for the promotion of religious

rather than secular ends, and the church exercised a governmental power that was subject

to no clear secular standard. The court concluded that the law impermissibly enmeshes

churches in the exercise of governmental powers. Yet the granting of official status to51

church wedding ceremonies is deeply grounded in history, and long history of acceptance

of a practice weighs in favor of its constitutionality, as determined inMarsh v. Chambers ,52

where the employment of a chaplain by the state legislature was upheld. The court warned


10/27

463 U.S. at _____.53

463 U.S. at _____.54

435 U.S. 618 (1978).55

Compare Sherryl E. Michaelson, Note, Religion and Morality Legislation: A56

Reexamination of Establishment Clause Analysis, 59 N.Y.U.L. Rev. 301, 309-311

(1984) (does unconstitutionally establish religion) with Emily Taylor, Note, Across

the Bond: The Dismantling of Marriage in Favor of Universal Civil Union Laws,28 Ohio Northern U.L. Rev. 171, 179 (2001) (does not unconstitutionally establish

religion).

See cases cited in n. 38supra.57

Harper v. Virginia Board of Elections, 384 U.S. 663, 672 (1966).58

10

that history could not justify contemporary violations of the establishment clause, but53

sustained the statute because in practice the chaplains prayers had never resulted in the

establishment of religion or an encroachment on separation of religious beliefs from

governmental functions. The Supreme Court inMcDaniel v. Paty, invalidated a state54 55

statute prohibiting ministers of the Gospel and priests from serving as delegates to the

states constitutional convention. Here, of course, we have the reverse: ministers are

compelled to act as agents of the state when they perform weddings. Commentators are

divided in their opinions as to whether a member of the clergy who performs the marriage

ceremony and signs the marriage license is thereby carrying out an unconstitutional

establishment of religion.56

The right of heterosexual couples to marry is a fundamental constitutional right.57

Under well established constitutional doctrine, any limitation or reduction of that right, if

it is valid, must be based on a compelling governmental interest, and must not be58


11/27

Harper v. Virginia Board of Elections, n. 58supra, at 672.59

See text at nn. 1, 2supra.60

See text at nn. 6, 30-33.61

See text at n. 34.62

Geoffrey May, n. 37supra, 8-10; Gran Lind, n. 9supra, at 191-207; Joseph R.63

Long, n. 1supra, at 26-27; Epaphroditus Peck, n. 32supra, at 126-128.

Frank Keezer, The Law of Marriage and Divorce 24 (1971); Joseph R. Long, n.164

supra, at 38-43; Epaphroditus Peck, n. 32supra, at 143-144.

Frank Keezer, n. 64supra, at 23; Joseph R. Long, n. 1supra, at 15, 52-53, 76-77.65

Frank Keezer, n. 64supra, at 23; Joseph R. Long, n. 1supra, at 15, 52-53, 76-77.66

Geoffrey May, n. 37supra, at 8-10; Joseph R. Long, n. 1supra, at 27-32;67

Epaphroditus Peck, n. 32supra, at 129-130.

Joseph R. Long, n. 1supra, at 20-22; Epaphroditus Peck, n. 32supra, at 131-134.68

11

achievable by any less restrictive means.59

Marriage everywhere has been regulated, at first by the church acting as lawmaker

and adjudicator, later divided between the church and state in parallel systems of justice,60 61

and finally by secular institutions exclusively.62

The asserted governmental or societal interests in regulating marriage are (1) to

prevent or annul marriage where a condition precludes the mutual voluntary consent to

enter into marriage by reason of (a) infancy or age minima, (b) fraud or duress, (c) joke,63 64 65

(d) mistake, (e) insanity, and one can add (f) impotence (although it does not quite fit66 67

this matrix); and (2) to prevent or annul marriages contrary to established mores against68


12/27

Joseph R. Long, n. 1supra, at 22-25; Epaphroditus Peck, n. 32supra, at 134-135;69

Gran Lind, n. 9supra, at 207-213 and nn. 68, 69, 73. Constitutional principles of

religious freedom will not prevent conviction for bigamy. Reynolds v. United States,

98 U.S. 145 (1978). The organization of a community for the spread and practice of

polygamy is . . . contrary to the spirit of Christianity and of the civilization which

Christianity has produced in the Western world. Mormon Church v. United States,

136 U.S. 1, 49 (1890).

Epaphroditus Peck, n. 32supra, at 131-134; Frank Keezer, n. 64supra, at 19;70

Joseph R. Long, n. 1supra, at 18-20. The very first secular regulations of marriage,

laws adopted in the reign of Henry VIII, modified the Biblical laws on incest. Seetext at n. 6,supra.

Joseph R. Long, n. 1supra, at 33-34; Frank Keezer, n. 64supra, at 18. Of course,71

these laws were held unconstitutional inLoving v. Virginia, 388 U.S. 1 (1967).

DeSanto v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952 (1984); Ga. Code Ann.72

19-3-3.1(a); Iowa Code Ann. 595.2, Kan. Stat. Ann. 23-101; Okla. Stat. Ann.

Tit. 43 3; S.C. Code Ann. 20-1-15; Utah Code Ann. 30-1-2(5); 23 Pa. Cons.

Stat. Ann. 206. The earliest specific regulation of marriage, that banns be published

in advance and the wedding ceremony be public, was enacted by the Fourth Lateran

Council in 1215, to guard against the impediments to marriage of infancy, consanguinity,and bigamy. Gran Lind, n. 9supra, at 93, 119; Pope Innocentius III, Letter to Archbishop

of Upsala, April 15, 1216.

Geoffrey May, n. 31supra, at 15-27; Gran Lind, n. 9supra, at 1007-1008.73

See n. 71,supra.74

12

(a) bigamy (and polygamy), (b) incest, and (c) formerly racial miscegenation, and (d)69 70 71

same-sex unions. Last, but certainly not least, is the governmental interest in maintaining72

records of marriages and divorces for the sake of establishing property and support rights

upon dissolution of marriage, establishing rights of inheritance and related entitlements on

the death of a spouse, and finally genealogical research. The above exclusions from the73

freedom of marriage, with the exception of miscegenation, which has been overthrown,74

and of same-sex marriage, which is the subject of an extremely vigorous contemporary


13/27

75

Frank Keezer, n. 64supra, at 9-10.76

William J. ODonnell and David A. Jones, The Law of Marriage and Marital77

Alternatives 17 (1982); Drinan, The Loving Decision and the Freedom to Marry,

29 Ohio St. L.J. 358, 376-377 (1968). Replacement of marriage by a civil or domestic

union is advocated in Emily Taylor, Note, Across the Bond: The Dismantling of

Marriage in Favor of Universal Civil Union Laws, 28 Ohio Northern J. L. Rev. 171,

173-174, 191-192 (2001).

Gerard v. Bradley, Same-Sex Marriages: Our Final Answer? 14 Notre Dame J.78

Law, Ethics & Public Policy 729, 731 (2000).

See text at nn. 8, 10supra.79

N. 22supra.80

See text at n. 13supra.81

13

debate, are easily sustained by compelling state interests that are not otherwise achievable.75

There is one remaining exception to unrestrained freedom of marriage. That is the

requirement of either a religious or secular ceremony. Unlike the other exceptions76

discussed above, no compelling state interest can be identified to support this legal

requirement. There is no necessity of a ceremonialized marriage; marriage can be

adequately effectuated merely by official registration. The requirement of a ceremony77

seems to be purely an accident of history, history rooted in church practices and doctrines,78

and in the United States, by history - - in the form of the Council of Trent and Lord

Hardwickes Act - - neither of which was incorporated into the common law. The79

needlessness of a marriage ceremony as a legal requirement is confirmed by the practices

of common law marriage in the 14 jurisdictions where it is recognized, which by its very80

definition comes into being without formal solemnization. The principal objection to81


14/27

See text at n. 18supra.82

14

common law marriage, that it creates no official record, would be obviated by a simple

requirement that such unions be recorded, not that they be solemnized. Couples,82

heterosexual and homosexual alike, could seek blessings of marriage in their churches. For

same-sex couples (and for heterosexual couples, one or both of them who had previously

been divorced), the granting or withholding of religious blessing would be entirely up to

the particularly religious denomination, as it is now. However, by removing the clergys

participation as an agent of the state, not only would principles of church-state separation

be advanced, but also the cause of religious freedom would be supported by releasing the

subtle, and sometimes not so subtle, pressures on the clergy to bless unions that they feel

are religiously wrong. In sum, the interests of both branches of the First Amendment

religion clause, freedom of worship and church-state separation, would be promoted.

Much of the raging debate about the legitimacy of same-sex marriages focuses on

whether these marriages must be recognized by the state. If a same-sex couple has merely

a domestic union and not a marriage in the eyes of the state, then opposition becomes

considerably reduced. Moreover, if all couples in cohabiting relationships, heterosexual

and homosexual alike, are effectively registered as domestic unions but with entitlement

to all spousal rights, and not as marriages, the grounds for seeking official recognition of

same-sex marriage would disappear altogether. No longer could same-sex couples

complain of discrimination at the hands of the state, since all couples, heterosexual and

homosexual, would be treated alike. Only domestic union registration, not registration of

marriage, would be offered by the government. Marriage would be what it anciently was,


15/27

Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2009);83

Baker v. State, 744 A.2d 864 (Vt. 1999);Kerrigan v. Department of Public Health, 2008

W.L. 4530885 (Conn. 10/28/08). Same-sex marriage is also legalized in Canada, The

Netherlands and Belgium. Many states, on the other hand, have statutes forbidding same-

sex marriage. Appendix, State Anti Same-Sex Marriage Statutes, 16 Quinnipiac L. Rev.

134 (1996).

Hawaii Const., Art. I, 23 (nullifyingBaehr v. Lewin, 875 P.2d 225 (Haw. 1993);84

Alaska Const. Art. I, 25 (nullifyingBrause v. Bureau of Vital Statistics, WL 88743(Alaska Super. Ct. 1998); California, Proposition 8 (2008) (nullifyingIn re Marriage

Cases, 183 P.3d 384 (Cal. 2008).

85

N. 105, infra.86

15

a status to be granted or denied solely by ones church acting with complete freedom and

without exercising any function of the state.

Presently three states offer same-sex couples the right to marriage. In three states83

cases requiring the recognition of same-sex marriage have been reversed by constitutional

amendments. In one of these states, California, the outcome is not clear, because the state84

constitutional change is subject to a challenge on federal constitutional grounds. All of85

this trouble could be eliminated if the state no longer were in the business of passing on the

validity of marriages.

Domestic union legislation, on the other hand, has been adopted in seven

jurisdictions, reflecting a considerably broader public acceptance for this status, than for86

same-sex marriage.

By count of the General Accounting Office, there are 1,138 legal benefits of one


16/27

Linda J. Lacey and D. Marianne Blair, Symposium: The Legislative Backlash to87

Advances in Same-Sex Couples, 40 Tulsa L. Rev. 371, 415, n. 290 (2004).

William J. ODonnell and David A. Jones, n. 77supra, at 16.

88

William J. ODonnell and David A. Jones, n. 77supra, at 16.89


William J. ODonnell and David A. Jones, n. 77supra, at 16; Milton C. Regan, Jr.,91

Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation, 76 Notre

Dame L. Rev. 1435, 1438 (2001); Linda J. Lacey and D. Marianne Blair, n. 87supra, at

417; Gran Lind, n. 9supra, at n. 216.

E.g., N.C.G.S. 29-14.92

E.g. N.C.G.S. 30-31, et seq.93

E.g., N.C.G.S. 28A-4-1(b)(1).94

Linda J. Lacey and D. Marianne Blair, n. 87supra, at 417.95

William J. ODonnell and David A. Jones, n. 77supra, at 16; Linda J. Lacey and D.96

Marianne Blair, n. 87supra, at 417.


William J. ODonnell and David A. Jones, n. 77supra, at 16; 26 U.S.C. 250398

(unlimited marital deduction for estate and gift taxes); 26 U.S.C. 6013(a) (joint tax

returns); 26 U.S.C. 152(b)(5) (dependency exemptions); 26 U.S.C. 1001(c) (no

taxable gains on property transfers).


16

kind or another that traditionally depended on the existence of marriage. These include87

support, alimony, property division, claims for loss of consortium, the right to inherit88 89 90 91

upon death intestate, the right to force a surviving spouses share upon death testate, the92 93

right to administer the estate of the deceased intestate spouse, social security survivors94

benefits, government pensions, employment benefits, numerous tax advantages (for95 96 97

example, a 100% deduction against the taxable estate), wrongful death claims,98 99


17/27

Family and Medical Leave Act, 29 U.S.C. 2611, 2612(a)(1), (c).100

Milton C. Regan, Jr., n. 91supra, at 1460.101

8 U.S.C. 1255(e)(3).102

E.g.,Parker v.Quinn-McGowan Co., 262 N.C. 560, 138 S.E.2d 214, 215 (1964).103

28 C.J.S. Dower and Curtesy 2, 136. See also e.g., N.C.G.S. 30-15 for a104

benefit in the nature of a surviving spouses years allowance.

Gran Lind, n. 9supra, at 216 (wrongful death claims); Cory v. Edgett, 111105

Cal.App.3d 230, 168 Cal.Rptr. 686 (1980) (inheritance and gift tax deductions);

Califano v. Boles, 443 U.S. 282 (1979) (social security survivors benefits);

Estate of Hall, 707 N.E.2d 201 (Ill. 1998) (surviving spouses share of estate).

Preferences for married persons are permissible in various contexts. California v.

Jobst, 434 U.S. 47, 58 (1977);Michael H. v. Gerald D., 491 U.S. 110 (1989).

See text at nn.27-29supra.106

J.A. Hein, Caring for the Evolving American Family: Cohabiting Partners and107

Employer Sponsored Health Care, 30 N.M.L. Rev. 19 (2000).

Gran Lind, n. 9supra, at 846-861. See 15 Vt. Stat. Ann. 1201-1207 (1999);108

Conn. Gen. Stats. 46b-38pp (2007); N.J. Stat. Ann. 37:1, 37:2 (2007); Cal. Domestic

Partners Rights and Responsibilities Act (2003); District of Columbia Partnership Equality

Amendment Act of 2006, D.C. Law 16-79; 2003 Me. Laws 672; Haw. Rev. Stat.

572c-1, 572c-3. Laws also provide for domestic unions in Denmark, Norway, Sweden,

17

employment leave on account of spouses illness, spousal evidentiary privilege, right100 101

of immediate citizenship, right to make funeral and burial arrangements, and102 103

allowances in the nature of homestead, dower and curtesy.104

These benefits are not available to domestic partners, who are not lawful

spouses with three important exceptions: (1) where theories such as partnership,105

implied trust and unjust enrichment are applicable to cohabiting couples; (2)106

where employers, without being legally required to do so, grant benefits to domestic

partners; and (3) in those several jurisdictions that recognize domestic unions.107 108


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Iceland, Greenland, Finland, The Netherlands, Spain (Aragon and Catalonia), France,

Germany, Switzerland (Geneva and Zurich), Australia, Canada, Croatia, Hungary, Ireland,

New Zealand and Portugal. Grace G. Blumberg, Legal Recognition of Same-Sex Conjugal

Relationships, 51 U.C.L.A.L. Rev. 1555, 1572-1574 (2004).

Gran Lind, n. 9supra, at 847. For example, California Family Code 297109

specifically allows hospital visitation, insurance beneficiary eligibility, standing to sue

for negligent infliction of emotional distress, health insurance coverage for public

employees, retirement benefits for some government employees, sick leave, tax

treatment, medical decision making and community property.

Gran Lind, n. 9supra, at 847. See the specific prohibitions of bigamy/polygamy110

or incest, or both, in 15 Vt. Stat. Ann. 1203 (1999); Conn. Gen. Stats. 466-38pp (2007);

N.J. Stat. Ann. 37:1, 37:2 (2007); Cal. Family Code 297(b). The existence of these

provisions should assuage fears that marriage would be extended to polygamy and group

marriage. Linda C. McClain, Intimate Affiliation and Democracy: Beyond Marriage,32 Hofstra L. Rev. 379, 381 (2003); Mark Strasser, Loving, Boehn and the Right to

Marry, 24 Nova. L. Rev. 769, 788-790 (2000).

111

Gran Lind, n. 9supra, at 1074-1076.112

18

Domestic union laws frequently grant couples many of the rights and obligations

of spouses. Also these statutes typically prescribe the same legal requirements that are109

applicable to traditional marriage, such as age, monogamy, and consanguinity.110

One of the most pressing claims by same-sex couples is that they be allowed to

marry in order to have access to the benefits conferred by the government. If all couples,111

heterosexual and homosexual alike, had access to equal benefits by means of regulated

domestic unions, as could easily be accomplished by appropriate legislation, these claims

would disappear.112

The question of whether or not to allow same-sex marriage is hugely controversial,

laden with religious and other traditional values, and not easily resolvable or likely to be


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Martha A. Fineman, Why Marriage? 9 Va. J. Soc. Policy & L. 239 (2001).113

See text at nn. 39-41. It is argued that the prohibition of homosexual marriage114

causes homosexuals to undertake heterosexual marriage for the sake of conformity,

convenience and social advantage, likely causing harm to themselves, their spouses,and their children. William J. ODonnell and David A. Jones, n. 77supra, at 47-48.

William J. ODonnell and David A. Jones, n. 77supra at 47-48.115

Veitch, The Essence of Marriage - A Comment on the Homosexual Challenge,116

5 Anglo-Am. L. Rev. 41, 44-45 (1976).

19

resolved in the near future.

Proponents of same-sex marriage claim that traditional marriage is an imperfect

institution, that is not sufficiently inclusive, failing to represent the full range of forms of

intimate affection.113

Opponents of same-sex marriage use arguments that, for the most part, do not

withstand careful scrutiny. The complaint that same-sex marriage is morally and

ideologically objectionable is constitutionally problematic, considered in the light of the

overruling ofBowers v. HardwickbyLawrence v. Georgia. The claim that marriage114

implies reproduction and child rearing is overwhelmed by the reality that many

heterosexuals who marry are incapable of reproduction, or do not desire or refuse to have

children, and that couples in same-sex unions can raise children and by artificial means of

reproduction can procreate. The argument that marriage presupposes heterosexuality,115

states only a conclusion and offers no reasoned analysis. This conclusion is grounded on

the assumption that penile-vaginal intercourse is a crucial test of marriage. The vice of116

this assumption is that heterosexuals in marriage are free to, and do, engage in a variety of


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William J. ODonnell and David A. Jones, n. 77supra, at 48-49.117

William J. ODonnell and David A. Jones, n. 77supra, at 48-49. If procreation118

were essential to marriage, then post-menopausal women, sterile people, and aged couples

should not be allowed to marry, nor should those who use contraceptives, women who

abort, and those who have no intention of having intercourse. William N. Eskridge, The

Case for Same-Sex Marriage 96, 183 (1996). Same-sex couples are allowed to adopt

children as a result of court decisions in at least nine states, and by statute in three

other states. William C. Duncan, The Social Good of Marriage and Legal Response

to Non-marital Cohabitation, 82 Ore. L. Rev. 1001, 1021-1022, nn. 172, 174 (2003).

Utah, Mississippi, and Florida specifically prohibit homosexual adoption. Id., at 1022,nn. 175, 176; Fla. Stat. 63.042(3).

See Lynn Wordle, The Bonds of Matrimony and the Bonds of Constitutional119

Democracy, 32 Hofstra L. Rev. 349, 372 (2004).

120

20

sexual practices, and some are incapable of carrying out penile-vaginal intercourse. The117

argument continues that marriage means having families, and members of same-sex unions

should not have families; but this proposition, as well, founders on the facts that

homosexuals do have children, either from former unions, by artificial means, or by

adoption, while heterosexual marriages often do not last and these families often split up.118

Ultimately, justification of union between man and woman, as the only permissible form

of marriage, has to be dependent on values of traditional religion and morality.119

While much of the current debate with which this article is concerned, focuses on

relationships of same-sex couples, it must be remembered that many cohabiting

heterosexual couples opt against marriage for a variety of reasons. Principally, these are

being opposed to marriage as an institution on account of its religious roots, and lacking120


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Frances K. Goldschneider and Linda J. White, New Families, No Families? The121

Transformation of the American Home 62-63 (1991); Milton C. Regan, Jr., n. 91supra,

at 1450-1462.

N. E. Dowd, n. 37supra, at 789.122

See text at n. 23,supra. According to the 2000 census, 9.1% of households123

(5,475,768) are headed by unmarried persons, and 10.9% of these (594,391) are

comprised of same-sex couples. T. P. Gallanis, Inheritance Rights for Domestic

Partners, 79 Tul. L. Rev. 55, 59 (2004).

21

that degree of commitment which marriage entails. In sum, it must be recognized that121

while the dominant legal norm is the heterosexual, marital biological family, social and

cultural patterns are substantially at odds with this norm. Experience has taught, if122

nothing else, that couples, be they opposite sex or same sex, will make relationship

arrangements to suit themselves, regardless of what limits or forms of relationship that the

state may seek to impose.123

To limit choices only between state sanctioned marriage, on the one hand, and mere

cohabitation, on the other hand, leaves entirely too great a gap, a void to which many

relationships would be consigned.

Offering an option for formalizing commitment, other than traditional marriage,

would have multiple salutary effects:

(1) Many couples who did not want to marry, but desired to raise children, or

were already in the process of raising children, might elect such an option. Formal

relationships have great advantages over mere cohabitation, with respect to the health and

well being of children. The latter is characterized by more fights and violence, lower levels

of child support, lowest academic performance, highest school behavior problems, more


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Lynn D. Wordle, Preference for Marital Couple Adoption - Constitutional and Policy124

Reflections, 5 Journal of Law & Family Studies 345, 369-375 (2003); William C. Duncan,

n. 118supra, at 1005-1014. In fairness it should be noted that the methodologies of these

studies have been criticized. Id., at 1015.

125

See text at nn. 115-119,supra.126

The California decision upholding same-sex marriage, was struck down an initiative127

adopted by 61% of the voters. Thomas M. Messner, Same-Sex Marriage and the Threat

to Religious Liberty, Backgrounder No. 2201, Heritage Foundation, n. 16, (Oct. 30, 2008).

In turn the court decision was nullified by a constitutional amendment. See n. 135, infra.

22

child abuse, higher levels of depression, and more alcohol and drug abuse, according to

several studies.124

(2) The controversy over same-sex marriage has been enormous and shows no

signs of any timely resolution. If some acceptable solution is not found, there is every

reason to expect a debate as contentious, divisive, and persistent as the debate over

abortion. The general public is opposed to same-sex marriage by wide margins, ___%

against and only ___% in favor, according to the polling data. With persistent demand125

for the benefits of marriage supported by the more logical arguments, on the one hand,126

but with high majority public opposition, on the other hand, recognition of same-sex

marriage is destined to have an uneven course. There will be over-reliance by its advocates

on court decisions, non-majoritarian sources of governance, and there likely will be

reversals of judicial and legislative decisions, by constitutional amendments voted on by

the people. Such developments have already occurred. Court decisions requiring127


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The right of same-sex persons to marry was determined by court decisions in128

Massachusetts, Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004), and

Vermont,Baker v. State, 744 A.2d 864, 886 (Vt. 1999).

1 U.S.C. 7.129

28 U.S.C. 1738c.130

T. P. Gallanis, n. 123supra, at 71; Haw. Const., Art. I, 25; Lamda Legal, Status131

of Same-Sex Relationships Nationwide (2008); Linda J. Lacey and P. Marianne Blair,

n. 91supra, at 392.

T. P. Gallanis, n. 123supra, at 70, n. 92.132

Linda J. Lacey and P. Marianne Blair, n. 91supra, at 414; T. P. Gallanis, n. 123133

supra, at 75.

Boehr v. Lewis, 852 P.2d 44 (Haw. 1993);Brause v. Bureau of Vital Statistics,134

WL 88743 (Alaska Supr. Ct. 1998).

Haw. Const., Art. I, 23; Alaska Const., Art. I, 25; California, Proposition 8135

(2008).

23

recognition of same-sex marriage have been made in Massachusetts and Vermont. The128

United States Congress passed the Defense of Marriage Act in 1996, providing that in129

interpreting federal laws and regulations, marriage means a legal union of one man and one

woman as husband and wife. The statute further provides that no state is required to give

effect to any public record or adjudication that upholds same-sex marriage. More than130

half of the states, 26 of them, adopted constitutional amendments banning same-sex

marriage, 38 states have enacted laws patterned after the federal Defense of Marriage131

Act, and 18 states have constitutional amendments refusing to recognize same-sex132

marriages performed elsewhere. Hawaiis, Alaskas, and Californias judicial decisions133

requiring recognition of same-sex marriage were reversed by constitutional amendments134

defining marriage as between one man and one woman.135


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Tex. Family Code Ann. 2.402 (Vernon 2005).136

Vermont civil unions are available only to persons of the same sex. Vt. Stat.137

Ann. 1204(e)(7). California civil unions are available only for same-sex couples

and for opposite-sex couples over the age of 62. Cal. Family Code 297.

The right of inheritance often is not offered in domestic union laws. T. P. Gallanis,138

n. 123supra, at 79. Californias domestic union law provides many of the same benefits

as marriage: hospital visitation, insurance-beneficiary designation, standing to sue for

negligent infliction of emotional distress, health insurance coverage for public employees,

retirement benefits for some government employees, sick leave, tax treatment, medical

decision-making, and community property. Cal. Family Code 297. Hawaiis

domestic union law provides for a more restricted set of benefits: family leave,

hospital visitation, health insurance coverage, and elective share of deceaseds estate.

Haw. Rev. Stat. 572C-1, 572C-3. Vermont purports in its domestic union law to

provide all the benefits of marriage. 15 Vt. Stat. Ann. 1201-1207 (1999).

24

A freely accessible registered domestic union is the middle ground that would both

ratchet down the anger and disarray created by the drive for same-sex marriage, and also

provide an acceptable niche for heterosexual couples who did not want to enter into

traditional marriage.

A basic format for the universal domestic union is found in Texas legislation

providing for registered common law marriage. To answer the needs identified in this136

article, the legislation must be applicable to heterosexual and same-sex couples alike.

Some of the existing domestic union laws are deficient in this respect, being reserved only

for same-sex couples. In order to be a fully acceptable alternative to marriage, domestic137

union laws, should either (1) extend all marital benefits and obligations to partners in

domestic unions, which is not the case now and varies from jurisdiction to jurisdiction,138

or (2) allow the parties to select which rights and obligations they choose to assume, much


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E.g., N.C.G.S. 32A-1.139

See text at nn. 63-70. Under current domestic union laws only certain prohibitions140

are articulated. E.g., incest and bigamy in Vermont, 15 Vt. Stat. Ann. 1203, and in

California, Cal. Family Code 297(b). Most civil union laws contain requirements

regarding age and consanguinity. J. A. Hein, n. 107supra, at 847.

See A.L.I., Principles of the Law of Family Dissolution: Analysis and141

Recommendations, Ch. 4 and 6 (2002) (recommends legislation concerning division

of property and making compensatory payments where relationship of domestic partners

is dissolved through separation).

See text at nn. 73-75supra.142

A principal reason the Massachusetts court held that the domestic union143

law was not sufficient to protect the rights of same-sex couples, and that they must

be given the right to marry. Goodridge v. Department of Public Health, 440 Mass.

309, 798 N.E.2d 941 (2009).

25

like the checklist format that is offered in statutory short form powers of attorney.139

Universally applicable domestic union laws also should contain the same

prohibitions against unlawfulness that the state has traditionally enforced with respect to

marriage: underage unions, unions the product of fraud or duress, unions the result of joke

or mistake, unions of insane persons, bigamous unions, and incestuous unions. Further,140

there should be standard provisions for rights of the parties on dissolution of a union.141

Domestic union laws, of course, would necessarily require, as they now do, public

registration, so that there would be no uncertainty as to the existence of a relationship.142

Domestic union laws conforming to the foregoing standards would be less likely,

than some current laws on the subject, to be subject to potentially successful attacks as

discriminatory on the basis of sex.143

Another salutary feature of the type of domestic union laws proposed here, is that


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In 2004 referenda in 11 states answered no to same-sex marriage, but in three144

states civil unions were accepted by the voters. Gran Lind, n. 9supra, at 855.

There is no need to have any civil ceremony at all. The states interest can be fully145

served by simple registration. The ceremony can be none, religious, or non-religious,

public or private, all at the parties choosing. This is highly logical if the state espouses

freedom of religion. Such a system would also be able to defuse the controversial issue

of a homosexual couples right to marry ceremonially. Gran Lind,supra n. 9, at 1074-

1077. In Western Europe, including Germany, France, Belgium and The Netherlands,

religious marriage ceremonies are optional and have no legal significance; only the

simple, brief civil ceremony is of legal consequence. Id., at 1074, n. 5.


See text at nn. 48-56supra, with respect to church-state separation. Also collisions147

implicating religious freedom would be greatly curtailed. These have been identified as

including (1) states conditioning grants of government benefits on recipients renouncing

opposition to same-sex marriage, (2) greater exposure of religious individuals and

institutions supporting solely heterosexual marriages to liabilities under civil rights laws

that protect sexual orientation. Thomas M. Messner, n. 127supra, at 7, 15; Eugene

Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155, 1179 (2005).

26

there would be far less public opposition than provisions allowing same-sex marriage.144

Finally, and perhaps most importantly, domestic union laws should be the exclusive

means for marriage and other committed living arrangements to be recognized by the state.

The ceremonial marriage would never be required, but always permitted, offered, not by

the government or its functionaries (including members of the clergy acting as agents of the

state under the present system), but by churches and whatever other organizations chose to

do so. The ceremonial wedding would be cut loose from the bonds of government and145

would be returned to the church; it would be placed back in its state of historical origin.146

The central First Amendment values of church-state separation and religious freedom

would be greatly advanced. Strident and unseemly public debate about who is qualified147

to participate in a ceremonial marriage would be ended. It would be up to each religious


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27

denomination or institution to make that decision, with no effect whatever on matters

within the realm of government, regardless of what the decision was.

- by Daniel W. Koenig and

Norman B. Smith

Documents

Marriage Separate Church State 1[1]