Marriage, Legal and Illegal

The first U.S. anti-miscegenation law (a laws prohibiting interracial marriage) was passed in Virginia in 1661. Punishments included a fine of ten thousand pounds of tobacco, or five years of indentured servitude, plus thirty years of indentured servitude for any child borne of an interracial union. Some of you may know that as late as 1911, people of English, Irish, Italian, Polish, and Jewish descent were not considered "white" in the U.S. Marriage of whites with members of these groups was thus illegal.

The people who enacted these laws and created these definitions stood on principle. They must have felt strongly that marriage should be defined as between a white and a white only. They probably felt that they were acting in accordance with God's will, and that their views on race were borne out by millennia of human history. They did not see themselves as hateful or bigoted, nor did they think they were limiting human rights and liberties. Rather, they saw themselves as protecting the institution of marriage. So did the did the majority of voters in eleven U.S. states last Tuesday, who passed constitutional amendments outlawing marriage between anyone other than a man and a woman (and in eight cases, civil unions as well).

In 1967 — about three hundred years after the first state anti-miscegenation law was passed — the last of these laws was repealed by the Supreme Court decision of Loving vs. The Commonwealth of Virginia. The case was brought by Perry Loving and his African-Native-American wife Mildred. The couple were residents of Virginia who married in Washington D.C., where interracial marriage was legal at that time. Upon their return to Virginia, police raided their home, and they were arrested and thrown in jail. This action was later deemed unconstitutional by the Warren Court, the same court that ruled racial segregation unconstitutional in Brown vs. Board of Education.

Today, I believe that the majority of Americans and citizens of other democracies would agree that the Warren Court ruled correctly. Today, I hope that the majority of Americans would admit that anti-miscegenation laws and their punishments could be seen as prejudiced, as limiting civil liberties, and as a violation of the right to "life, liberty, and the pursuit of happiness." I believe that such laws would also be viewed as morally wrong according to the values of many religions.

Why, then, have the voters of eleven states decided to outlaw unions between two men or two women? Do they not see the analogy to anti-miscegenation laws?

My first impulse is to try to convince these voters that they are just as immoral as the Virginians who enslaved the children of mixed marriages, and that their homophobia is just as frightening and lethal to gays as was the racism that was written into law until 1967. I might say to them that even from a Christian perspective, nowhere does Jesus or the New Testament state that homosexuality is a sin, that the Old Testament contains only one such reference, and that even this one reference is far outweighed by the thousands of exhortations to forgive sin, to leave the judging and punishing to God, and to practice tolerance and love.

However, I'm not sure that this would work. No one thinks of themselves as immoral, no one likes to be called a bigot, and no one wants to be taught their own religion. Those who believe they have God as their guarantor only renew their faith and resolve in the face of such criticisms. If I say their beliefs are misguided, they will only counter that mine are more so.

As I cannot convince these voters that gays have as much right to civil liberties as do straights, and that their religion in fact preaches something other than what they believe it does, I will try to convince them of something else. I will remind them instead that this country was founded on the principles of religious tolerance and separation of church and state. It is absolutely crucial that we maintain this distinction if we are not to turn from a democracy into a pre-enlightenment-style theocracy by a ruler who is perceived as having divine right. Ensuring that church and state remain two separate realms is not a secular, amoral repudiation of religious values. On the contrary, it is an absolute necessity for ensuring the freedom to practice religion, which is why the original settlers of this country came here in the first place.

Marriage is one of those tricky areas that falls under the domain of both religion and the state. Marriage is a religious matter in that ceremonies may be conducted by a member of a clergy, in that the vows may be written by a church, in that the union may be subject to a church-sanctioned definition of what constitutes a successful and worthy marriage, and in that many churches decide who may and may not be a member based upon whether one abides by this definition (e.g., many religious do not admit divorcées). Marriages are also state affairs, though, insofar as the government bestows certain benefits upon married couples: tax incentives, spousal health care, inheritance rights, permission to have children, hospital visitation rights, as well as the right not to have one's home stormed by police and be thrown in jail.

No religious institution is required by law to endorse principles that it disagrees with, nor is any religion required to admit anyone it does not want as a member. Religions are free to ban gays, blacks, divorcées, or anyone else they wish. Why? Because they are private organizations that are not sponsored by the federal government and do not receive tax dollars contributed by citizens who are not members of this religion. We may disagree with their choices, but private groups have every right to set their own conditions of membership and rules. If a religious group wants to make a rule that its members not consume alcohol, for example, they are allowed to make such a rule, even though alcohol is legal according to current U.S. law.

A rule made by a private group for its own members, however, is not the same as a punishable law that applies to every citizen of a nation. If a member of a private group flauts the rules of that group, they might be criticized or even expelled. But they will not receive a ticket or be arrested by an officer of the law. This is basic information about the public vs. the private sector that most people are already familiar with, and about the separation of church and state.

What I propose is this: make more clear the separation of church and state when it comes to partnership. Extend the benefits that are currently given to married couples — joint tax returns, spousal health care, consideration as kin in the event of illness or death, permission to be considered to adopt children — to any two adult human beings legally united by domestic partnership or civil union. Let the various religions continue to create and enforce their own definitions of marriage. But let those definitions and rules apply only to the consenting, confirmed members of those religions.

We would thus have two separate aspects: the state-sanctioned civil union or domestic partnership, available to any two consenting adults regardless of race, religion, or gender; and the church-sanctioned marriage, with rules and restrictions under the authority of the churches themselves. Couples could opt for either, both, or none of the above. Any ritualized ceremony would fall under the latter aspect of marriage, regardless of whether it were performed in an established church, a fringe religion, or created from personal beliefs or spiritual practices. The status of the couple as eligible for legal partner benefits would in no way be related to the type of ritual ceremony performed or whether one was performed at all.

As long as we have full separation of church and state, no church official will ever be required by law to perform a marriage of anyone they do not wish to, and no state official will ever be punished for violating a religion's doctrine. But if those lines blur, churches will be subject to certain government-based anti-discrimination laws, and states will be subject to certain religiously-derived rules. This is a situation that is horrifying for people of no faith and people of strong faith alike.

Keeping church and state fully separate is the best way to ensure that everyone is legally protected to follow their own desire, be it a desire for divine absolution or a desire to love without being persecuted for that love.


Barbara Cruz and Michael Berson, "The American Melting Pot? Miscegenation Laws in the United States," OAH Magazine of History 15:4 (Summer 2001).

Maria Root, Racially Mixed People in America, Newbury Park: Sage Publications, 1992.