Why We Should Separate Civil and Religious Marriage. And Why We Shouldn’t.

Same sex marriage is now the law of the land. The Supreme Court’s ruling last week in Obergefell v. Hodges  was a landmark decision, bringing to a climax decades of activism and organizing. The movement for marriage equality slowly spread over the nation as court decisions and ballot initiatives gradually legalized same sex marriage throughout the states. And while there is much more work to be done to fully realize LGBT equality in this country, this decision will surely be looked upon as a major milestone.

I personally celebrate this decision. Rooted both in my commitment to civil rights and my approach to Jewish text, tradition and interpretation, I have long been a supporter of same sex marriage. When the battle was being fought in the statehouse and on the ballot in my home state of Washington several years ago, I was active on the issue, testifying in front of the State Legislature and serving on the referendum campaign’s “Faith Cabinet.”

As we see in response to the decision, same sex marriage garnered both support and opposition from religious communities. And that points to a larger issue: with no other communal institution in our country are church and state so tightly bound. When rabbis or other clergy perform weddings, we are more often than not also serving as agents of the state. State governments empower clergy to serve as civil servants for this one act, and our signatures on marriage licenses carry civil legal authority. (Performing baby namings and funerals do not empower us to sign birth and death certificates, on the other hand.)

But is this right? It is this dual authority—religious and civil—that allowed clergy to have an important voice in the arguments around same sex marriage.

Yet at the same time, we see civil servants who are religiously opposed to same sex marriage seeking protections from not participating. This is taken to a greater degree when it is intimated, and often codified in law, that religious leaders would not be coerced into officiating at same sex marriage. On the one hand, these protections are unnecessary, clergy could always refuse to officiate at a union—an intermarriage, for example—if it violated their religious principles. On the other, these attitudes point to the deep interconnectedness and conflation of civil and religious marriage.

But civil marriage and religious marriage, while similar, are not the same thing. Civil marriage sets up a legal arrangement. Religious marriage sets up a spiritual relationship. The interests of the state and the interests of religious authorities in regards to marriage are different. And to fully demonstrate this, it may be time to get rabbis and other clergy out of the civil marriage business. In other words, couples go to the clerk or magistrate to be civilly married, and then, if they so choose, they can go to a rabbi or other clergy to get religiously married. This allows religious denominations to maintain their views independent of the state, and keeps the differing ends of civil and religious marriage separate.

And while we can advocate for getting religion out of civil marriage, at the same time we need to get more religion into civil marriage. For while the interests of civil authorities and the interests of religious authorities diverge regarding marriage, we ultimately need both.

In the oft-quoted words of Justice Anthony Kennedy from the Majority Opinion in Obergefell, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” But is the state equipped to ensure these ideals? In issuing marriage licenses, the state is not interested in the compatibility of the two people applying. It is not interested in whether or not they have thought about large issues such as children, or money, or sex. It is not interested in whether or not the two people are communicating well or respect each other. Before it issues a license the state only wants to know, are these two people legally allowed to wed?

Which is why the expansion of the right to civil marriage is both a blessing and a challenge. It is a blessing because it is an important achievement for civil rights in our country. And it is a challenge because the emphasis on civil marriage may obscure the fact that marriage takes work. Deep, committed and reflective work.

And this last point is what underlies spiritual preparation for marriage. When rabbis and clergy such as myself work with a couple, we include premarital counseling in one form or another. We do not just focus on planning the wedding, we focus on planning the marriage. This work is so important and so necessary to help build a successful partnership. It is this work that makes a marriage, and not a signature on a legal document. So while we expand the civil right, let us also work to expand the religious rite.

We celebrate this Supreme Court decision and our nation’s achievement. And while we do so, let’s question how we as clergy need be separated from the marriage process, and how we need to be a necessary part.

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