Religion and Same-Sex Marriage

Abstract

There are civil and religious notions of marriage; civil and religious authorities exercise power regarding them. These notions and exercises of power coexist, collaborate, and overlap. Sometimes they collide. Against this reality, the courts and federal legislative drafters have fashioned a simplistic narrative by which civil marriage opened to same-sex couples in a process distinct from religious marriage. This chapter emphasizes the connections between civil and religious marriage. The processes by which state institutions have recognized same-sex marriage have not only altered civil marriage, but also further defined religious marriage. When intervening in civil marriage with an eye to vindicating same-sex couples’ right to equality, state actors such as judges and legislative drafters have continued the long process of producing “civil” and “religious” marriage. As religious bases for state action appear increasingly out of place in a diverse contemporary society, the pursuit of equality has emerged as an admissible substitute in relation to marriage.