Marriage and the Religion Clauses

Authors

Elijah L. Milne

Document Type

Article

Abstract

(Excerpt)

While it is not the purpose of this Article to stoke the flames of controversy, this Article does attempt to explain and clarify a handful of narrow topics in the modern debate over same-sex marriage which concern the intersection of religion with marriage. Due to the vast array of issues involved in this debate, however, the topics addressed in this Article are only considered in the context of the Religion Clauses of the First Amendment to the United States Constitution. These topics include such things as the historical relationship of marriage and religion, the legality of defining marriage as the union of one man and one woman, the propriety of religious leaders solemnizing civil marriages, the possible effects on religious liberty of either legalizing or prohibiting same-sex marriage, and the continuing significance of marriage for families and religions of all stripes.

The layout of this Article in addressing these topics is as follows: First, Part I chronicles the origins and history of marriage in America. Next, Part II explores whether defining marriage to be the union of a man and a woman constitutes an unlawful establishment of religion. Part III then addresses questions involving the religious solemnization of marriage and the possible effects on religious liberty of legalizing same-sex marriage. Part IV analyzes whether refusing to recognize same-sex marriages unlawfully impairs religious liberty. And, finally, Part V provides brief remarks on the continuing significance of marriage for families and religions in America.