Obama and the Two Types of Marriage

In the wake of President Obama’s declaration of his personal support for the right of same-sex couples to marry under civil law, the nation is understandably focused on debating the merits of this position. Three related points from President Obama’s announcement, however, deserve our attention as well.

First, President Obama noted that there is an important difference between civil marriage and religious marriage. The state defines civil marriage, which serves as the gateway for a wide variety of government benefits, rights and privileges. Religious marriage, on the other hand, is defined solely by religious communities.

These categories may be fuzzy in our minds because current law not only respects the ability of clergy and religious communities to define and bless religious marriage, it also allows clergy to solemnize civil marriage. That’s why one often hears a minister conclude a wedding by saying, “By the authority vested in me by the state of X, I now pronounce you husband and wife.” Setting aside the oddity of a minister claiming the authority of the state rather than a higher power, the fact that the state allows clergy to bring a civil marriage into being does not mean it can require clergy to bless or recognize any relationship the state defines as civil marriage. Some clergy won’t perform interfaith unions, and many refuse to perform a wedding when they believe a couple is unready for the momentous commitment of marriage. Just as the state cannot force clergy to perform these marriages, the state cannot require a clergy person to marry same-sex couples. In his remarks, President Obama affirmed these ideas, emphasizing that he was “talking about are civil marriages and civil laws,” as opposed to religious marriages, and that “churches and other faith institutions are still gonna be able to make determinations about what their sacraments are — what they recognize” as religious marriage.

Second, the president expressed his support for appropriate religious exemptions in legislation recognizing same-sex marriages. In his comments to ABC News’ Robin Roberts, President Obama pointed to the example of New York as a state that has been “respectful of religious liberty” in this regard. New York’s same-sex marriage law says the state may not “penalize, withhold benefits, or discriminate” against a minister for the minister’s refusal to perform a marriage for same-sex couples. Religious organizations and their employees may not be required to provide services, facilities or goods “for the solemnization or celebration” of same-sex marriages, and refusals to do so may not form the basis of any civil claim, nor result in any state penalties, withholding of benefits, or discrimination. This New York law also says the state’s recognition of same-sex marriage will not affect things like the ability of religious organizations to make religion-based employment decisions and religious colleges and universities to limit married student housing to heterosexual couples, if that is their practice.

Given constitutional protections for free exercise and religious autonomy, courts would recognize certain exemptions for religious objectors from same-sex marriage laws even without specific legislative language. Spelling these matters out in legislation, however, helps to clarify what is and what is not at stake and to reassure those who would define religious marriage in ways that differ from the state’s definition of civil marriage. It may also result in the adoption of wider free exercise protections than is constitutionally required where such protections adequately respect competing interests and are otherwise constitutionally appropriate. There is serious debate about issues like whether some small businesses should be exempt from obligations to provide goods or services for same-sex marriages where business owners have religious objections to doing so and whether religious organizations receiving government grants should be exempt from non-discrimination conditions on the use of grant funds. At the same time, there is no question that exemptions like those in New York law are widely supported, including by President Obama.

Finally, President Obama insisted that conversations about these sensitive and important matters should be conducted in a spirit of civility, and that proponents of same-sex marriage should resist the temptation to demonize those on the other side of the debate. Obama said:

[I]t’s important to recognize that folks who feel very strongly that marriage should be defined narrowly as between a man and a woman, many of them are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families. … [A] bunch of them are friends of mine … pastors and … people who I deeply respect.

Likewise, Governor Mitt Romney has called this issue is “a very tender and sensitive topic.” As President Obama and Gov. Romney recognize, we can state our beliefs on these issues plainly without slandering those who take a different point of view.

Americans must decide whether they support or oppose recognition of same-sex marriage in our civil laws, but they also must determine how religious objectors will be treated where same-sex marriages are recognized and the spirit in which these debates will be conducted. President Obama’s remarks on all these scores are worthy of attention and consideration.

This piece originally appeared in

The Huffington Post

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