by Bruce Dunlavy             (My blog home page and index of other posts may be found here.)

Although we have certainly had a long time to prepare for it, the legalization of same-sex marriage is going over hard with traditionalists. A fair-sized chunk of the American population is still opposed to the idea, ostensibly on religious grounds.  In a previous post, I dealt with this issue on a scientific basis.  Here we shall look at the legal and functional history.

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On June 26, 2015, the Supreme Court decided in Obergefell v. Hodges that States may not deny marriage recognition to same-sex couples. The decision was crafted on equal-rights grounds, based on precedent decisions such as Loving v. Virginia  and United States v. Windsor.  The right to a same-sex marriage, the Court held, is fundamental under the Fourteenth Amendment’s requirement that States provide “equal protection under the law.”

Added to the Constitution after the Civil War, the Fourteenth Amendment was specifically written to ensure that States not create “second-class” citizenship in which some people are not afforded the same rights as others. While some people may argue that the Amendment applies only to race-based discrimination, those people are wrong. The transcripts of the framing of the Amendment make it clear that the framers rejected language which would have restricted its scope to race. The Amendment was intended to be applicable to all forms of discrimination among citizens.

One of the States directly affected by Obergefell was Ohio, where in 2004 voters had added an amendment to the State constitution forbidding same-sex marriage. Obergefell established that Ohio’s amendment was a violation of the “supreme law of the land,” the United States Constitution.

Now comes C. Allen McConnell, a Toledo Municipal Court judge who has refused to officiate same-sex marriages.  McConnell justified his refusal by citing his “personal and religious beliefs.” This is not the way the legal system operates. Judges, above all others, are not to allow “personal beliefs” to determine whether they will or will not administer laws equally and fairly.

Ohio Revised Code 3.23 specifies the form of the oath of office that McConnell took at his swearing-in:
“The oath of office of each judge of a court of record shall be to support the constitution of the United States and the constitution of this state, to administer justice without respect to persons, and faithfully and impartially to discharge and perform all the duties incumbent on the person as such judge, according to the best of the person’s ability and understanding.”

The emphasis in the above paragraph is mine, to point out that a judge cannot make distinctions about which “persons” s/he will administer justice to, that s/he must be impartial, and that s/he must be faithful to perform all the duties of her/his office, not just the ones s/he wants to. In other words, when this guy became a judge, he put his hand on the Bible and swore to uphold the Constitution. He didn’t put his hand on the Constitution and swear to uphold the Bible.

With that established, let us now turn to the central point about marriage, which is this: Marriage is not a religious establishment, but a legal one. The “marriage contract,” as it is often called, is just that – a contract, with the same basis, format, and obligations as any other contract. This is made clear simply by pointing out that when a couple gets married in a church they must record it at the court house for it to be legally valid, but when a couple gets married in a court house they need not record it at a church. In addition, dissolving the contract – a divorce – must be performed in court.

The concept of marriage as a legal – not a religious – status goes back to the earliest establishments in history. The first complex and comprehensive set of laws, the Code of Hammurabi, was established in Mesopotamia around 1780 B.C.E. It devoted considerable attention to the institution of marriage, identifying it as a contract entered into to preserve social order, establish the rules of inheritance, and protect the woman’s property rights in case of the man’s death, divorce, or abandonment.

The ancient Hebrews also knew that marriage is a civil arrangement and not a religious one. This is easily demonstrated by the circumstances surrounding their use of the ketubah, a prenuptial agreement specifying the groom’s responsibilities to the bride and outlining the disposition of property in case of divorce or the death of the husband. The key to understanding the civil – not religious – nature of the marriage contract is that a ketubah could be written by a woman, and women were forbidden to write religious documents.

In medieval and early modern Europe, marriage was a legal contract and a civil status. Most marriages were common-law actions, in which there were no official ceremonies, just an acknowledgement by the couple that they were now joined. When there were formal wedding ceremonies, they were not held in church, but outside one of the entry doors, after which the couple and their guests would go inside for a celebratory wedding Mass. Even when a priest officiated (not always the case), it was still a civil and essentially secular rite.

As the church took more and more involvement in the everyday activities of its members, Holy Matrimony was established to add an official church imprimatur on the marriage. Marriage officially became one of the seven Sacraments of the Roman Catholic Church at the Council of Trent in 1563. Nevertheless, the status of the relationship remained a legal and civil one, with the church merely adding its own endorsement.

From the establishment of the American colonies of England and through the founding of the United States, marriage remained a legal contract. How do we know this? Clear evidence can be obtained from the status of slave marriages. Although slaves might have informal wedding ceremonies (e.g., “jumping the broom”), legal marriages were forbidden to them. This was because slaves did not have the right to enter into legal contracts, and marriage is a contract.

In the modern world, marriage is used for purposes other than the disposition of property when a marriage ends.  Married couples may make end-of-life and other medical decisions when one or the other is incapacitated.  Spousal immunity in criminal trials means that marriage partners may not be compelled to testify against one another.  Insurance, inheritance, and child custody are further complexities.

Thus it is clear that marriage is a legal relationship, and as such is subject to the requirements of the Constitution, particularly the Fourteenth Amendment. Since Ohio (the State where I wrote this) abolished common-law marriage in 1991, the only way to become married in Ohio is through a legal procedure, established in courts and public records of the State or county.

The sacrament of Holy Matrimony may be conferred in a church as a strictly religious ceremony, but it does not constitute a marriage unless the appropriate legal procedures are followed. Without legal approval, a marriage contract is invalid before the law, and the rights and responsibilities of spouses as delineated under marriages laws are not applicable. If you want a church wedding, by all means, have one and enjoy it, but it is not a legal marriage until it is recorded in conformity with State law.

The Constitution requires that laws be executed on a fair and equal basis. It does not say that those who execute the laws – especially judges – may select which persons they will or will not perform their duties for. Just as a judge may not refuse to officiate at a marriage between persons who have been divorced, citing his “personal and religious” opposition to divorce, s/he may not refuse a same-sex couple. Same-sex marriage is legal in Ohio now, and judges are the foremost upholders of State law.

One would have thought that the issue of religion-based dissension from the law of the land in cases such as these would have been decided once and for all in Loving v. Virginia (yes, “race-mixing” was opposed on grounds that it was antithetical to the tenets of the Christian religion). However, it is clear that it will take more time to pull everyone into line.

In a church wedding, a pastor can refuse to perform a ceremony with which s/he disagrees, but a pastor is not a judge ordained by law and sworn to impartially serve all who come before her/him. C. Allen McConnell is such a judge, and thus is required to follow the dictates of the law, not of his own personal interpretation of religious revelation. If he cannot do his job as set forth in the Constitution and the law, he must relinquish his position.