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Why Evangelical Protestants Are Right When They Say That State Recognition of SameSex Marriages Threatens Their Marriages and What the Law Should Do About It
(Inaugural Lecture for the Hofstra Colloquium on Law and Sexuality)
Mary Anne Case
I should say at the outset, since I understand there may be some doubt about this from
anyone who doesn’t know me or my work or anything about me – anyone who does will
not have this difficulty – that I am not an evangelical Protestant, nor am I an opponent of
same-sex marriage. I am an extremely strong proponent of same-sex marriage, both as a
philosophical and ideological matter and as a matter of law. That is to say, I have been
writing since the beginning of my career in legal academia that, under ordinary connectthe-dots doctrinal constitutionalism, the U.S. Constitution compels the recognition of
same-sex marriage if there’s going to be the recognition of marriage, not only, in the
aftermath of Lawrence v. Texas, on substantive due process grounds, but even more
clearly on equal protection grounds. The requirement that to have a marriage there must
be one person of each sex is one of the last remaining “fixed notions concerning the roles
and abilities of males and females”1 embodied in American law. Anyone who recognizes
that quote knows that the Supreme Court’s standard explanation of what makes a sexrespecting rule unconstitutional is that it embodies such a fixed notion. So as a feminist
and a constitutional law scholar, as well as a scholar of the regulation of sexuality, I’m
for same-sex marriage.
But I have been spending a fair amount of time recently trying to understand, as it
were from the inside, some of the most frequently and vehemently voiced objections to
same-sex marriage. There are a bunch of them that I understand perfectly, but just
happen not to agree with. For example, there is the oft-cited one adopted by what I
should be ashamed to call my old friend, Judge Robert Smith in Hernandez v. Robles, the
New York same-sex marriage case, that the interests of procreation made it appropriate to
limit marriage to persons of opposite sexes.2 That I understand. It seems to me wrong as
a matter of law and wrong as a matter of policy, but I understand it. Here are some I have
trouble understanding: For example, the claim enunciated from the time of the earliest
U.S. same-sex marriage cases in the 1970s that, “the relationship proposed by [a samesex couple] does not authorize the issuance of a marriage license because what they
propose is not a marriage,”3 The notion is that marriage is something like a natural kind.
The best that I can do in understanding this from the inside is to is say that it may be that
“what they propose is not a marriage” in the way that three is not a couple. Three people
can be many things, but not a couple.
I’ve also tried, but will not discuss at length with you now, to understand –although so far
this one I’ve simply failed at – the claim that marriage is a pre-political institution. I tried
1
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
See Hernandez v. Robles, 7 N.Y.3d 338, 349 (2006).
3
Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky App. 1973).
2
1
to have a conversation with a Catholic bishop who has written on the subject, Bishop
Thomas J. Paprocki of Chicago,4 about this, and I said, “I understand that pair-bonding
may be a pre-political institution, but y’all think that marriage cannot involve divorce.
Unless you are relying on theological arguments, something you disclaim, how can the
absence of divorce be something pre-political?”
But the one of the objections that I think I’ve had the most success in understanding, at
least by my own lights, is the one that gets the most negative publicity, in the sense that
it’s seen as a joke. It’s generated umpteen cartoons and humor columns. It’s the claim,
most often raised by evangelical Protestants, that THEIR marriages would be threatened
by state recognition of same-sex marriages. The cartoons involve, for example, a nice
elderly heterosexual couple sitting by their fireplace saying,” The lesbians next door are
getting married. Now we really need to get a divorce.”
The more, however, I thought about this, the more I thought, these Protestant protesters
are exactly right and explaining in what sense they are right will take up the bulk of this
talk. (It’s going to be a descriptive and historical talk for its bulk, and then at the end I’ll
give you my own normative punch line.) They are exactly right because Protestants in
the United States have essentially abdicated the definition of marriage, its formation, and
above all its dissolution to the state. There is simply no air between marriage as the state
defines it and marriage as Protestants can define it to their flock I think one way of
seeing this is to observe that this is not true of other major religious groups in this
country, notably Catholics and Jews.
Catholics, for example, famously do not recognize divorce, and this helps them to
understand full well that marriage in their faith tradition and marriage as the state defines
it are not the same, so that one can be married in the eyes of the faith and not of the state,
and vice versa. A divorced Catholic who remarries is married in the eyes of the state and
not of the Church to his or her new spouse. That person is, in the eyes of the Church and
not of the state still married to his or her first spouse, from whom the state, but not the
Church, legally divorced him or her. Catholics do, however, have a means that de facto
serves to dissolve marriages, and that is the procedure for annulment, made famous in the
popular press by the efforts of spouses of some of the Kennedys to resist annulments that
were being sought by these supposedly family-loving and God-fearing Kennedys.5 The
annulment procedure allows, through legal process, through advocates and judges, for the
dissolution of a Catholic marriage, dissolution on the grounds that it never really existed,
that the spouses were in some way disqualified from entering into marriage with one
another in the first place.
4
Thomas J. Paprocki , Marriage, Same-Sex Relationships, and the Catholic Church, 38 Loy. U. Chi. L.J.
247(2007).
See e.g. Shattered Faith: A Woman’s Struggle to Stop the Catholic Church from Annulling her Marriage,
a best-selling book, by Sheila Rauch Kennedy, one of the divorced spouses of one of the Kennedys,
focused on this.
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2
Similar difference between marriage as the civil law defines it and as the faith defines it
is less famously true for observant Jews, something that, in New York State in particular,
not only the observant Jews among you, but the family lawyers among you would have
reason to know, because, of course, New York is a pioneer state in the civil legal
provision for what observant Jews call the “agunah” or “bound woman.” Let me briefly
explain, with the caveat that I am not an expert in Jewish law. It is my understanding
that, just as Catholics have their annulment procedures, so observant Jews have their
religious divorce procedures. The Jewish divorce, called a “get,” is given by the husband
to the wife through the intermediary of a tribunal known as a “beth din.” The reason why
New York family lawyers have had to know this is that there was a series of cases in New
York and elsewhere, but in New York much more quickly reacted to by the legislature, in
which typically the husband of an observant Jewish family would seek a civil divorce but
decline to give his wife a religious divorce. This left her divorced in the eyes of the state,
but still married in the eyes of the religious community, so as to preclude, for example,
her remarriage within the faith or the religious legitimacy of any children she might have
with her next husband. Ultimately the New York courts dealt with this by making it a
condition of a civil divorce that the Jewish husband grant his wife a get, and this was
embodied about twenty years ago in a statute that in general terms talked about the
requirement as a precondition for a civil divorce for spouses to “take all steps within their
power to remove any religious or conscientious restraints on the other spouses
remarriage.” There are interesting and difficult constitutional questions raised by this
statute, which I’ll return to later. For the moment I want to suggest that, even though
reform, reconstructionist and conservative Jews tend to rely on civil divorce procedures
alone, and not the religious get or the beth din, to exit their marriages, all branches of
Judaism can be reminded of the gap between civil marriage and marriage in their faith
tradition by the fact that the repertoire of marriage ceremonies for a typical civil official
performing marriages, such as a justice of the peace, does contain language taken directly
from the Book of Common Prayer, but does not contain a ketubah.
So, Catholics and Jews have reason to understand the difference between civil and
religious marriage, but Protestants have reason not to. I’ll talk a bit about the legal
historical reasons for this, but first I wanted to present what for me was the “Aha!”
moment for my theory, the moment when I became convinced I was onto something. It
is a series of polls taken over the last several years in the period when same-sex marriage
was a hot topic nationally. There are a number of polls and all come out fairly
consistently. I’ll give you the statistics from one or two by way of example. These are
polls in which, holding constant views on homosexuality, both among polling
populations relatively sympathetic to gay rights and polling populations that are relatively
unsympathetic, the following differences come up with respect to same-sex marriage
only. That is to say these differences are not there nearly as strongly when it comes to
other gay right issues, for example employment non-discrimination, hate-crimes
protection, even, in some cases, recognition of same-sex partnerships short of marriage.
For example, in a Pew Forum poll released in October 2004, 55% of Jews supported
same-sex marriage. Now this may not be that surprising, because Jews are on average
more liberal than the population as a whole. But, among white Roman Catholics,
opposition was 48%, lower than among the population as a whole, that is to say the
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population as a whole was more hostile to same-sex marriage than the Catholic
population. 52% of Latino Catholics were opposed, 71% of Latino Protestants, 72% of
black Protestants and 75% of white evangelical Protestants. A similar poll taken a year
earlier had a similar 20% gap between Protestant objection to same-sex marriage and the
objections of otherwise similarly situated Catholics.
Now before talking about what this means for us today and what the law ought to do
about it, let me give you my account of how this came to be, which involves a brief legal
history of marriage in the Anglo-American legal tradition. As you may know, the
English state came relatively late to the regulation of marriage. Initially, marriage in
England was “a private contract for the purchase of a wife, a purely private transaction
with no trace of anything such as a public license or registration, no authoritative
intervention either by a priest or civil functionary, purely a private business transaction.”6
When there began to be more regulation of the formation of marriage, it was not through
the state in the first instance, but through the Church. So it was the canon law that
defined who was married and who was not, and it did so famously from the time of Pope
Alexander III in the middle ages by requiring simply the exchange of words of present
consent, so that two otherwise single people past the age of puberty, not closely related to
one another and of opposite sexes would be married to one another if they simply said to
one another, “I marry you.” “I will marry you” was more complicated, because that’s the
future tense and a promise, however, a future commitment followed by sexual intercourse
also made a marriage. There was a lot of litigation about this. A famous legal historian
famously said, lovers, of all people are the ones who have the most difficulty
distinguishing between the present and the future. This of course, created a lot of
problems, this purely private marriage, and eventually the English church came in and
started getting fussier.
But when the English state finally and definitively asserted control over marriage, saying
none of this merely contractual stuff, either by words of present consent or more formal
private contracting will suffice, but you have to come to us, you’ve got to have our
recognized officials marry you, it did so through its Established Church of England, in an
Act officially known as the 1753 Act for the Better Prevention of Clandestine Marriages
and popularly known as Lord Hardwicke’s Act for the Lord Chancellor who shepherded
it through Parliament. I will talk more about the fact that this was almost exactly the
same time as the Bubble Act was passed, so that the state took charge both of marriages
and of business corporations virtually simultaneously. For the moment, let me draw your
attention to the fact that, with respect to marriages, the state asserted its monopoly power
through its Established Church, and that therefore, it provided for the marriages of
members of the Church of England, and some exceptions for the marriages of Jews, but
none for those of Catholics. 1753 was after the tradition of marriage and its legal
regulation had already developed in the colonies, but there is an interesting difference
there as well, even before Hardwicke’s Act, which is that in the colonies settled by
members of the Church of England, in the South, marriages were performed, as they are
today, by members of the clergy, and those marriages were civilly recognized. In Puritan
New England, however, marriage was a civil contract, and not only were clergy not
6
1 GEORGE ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL INSTITUTIONS 285 (1904).
4
authorized to perform marriages, they were disinvited from even attending the ceremony
because it was thought that this would create too much confusion between marriage,
which the Puritans saw as a civil contract, and religion.
Now let me pause for a moment on that fact and push it back into history and forward
into the present. Why did the Puritans do this? They might have gotten the idea from the
Netherlands, where they spent time before sailing for Plymouth Rock. The Netherlands
also had the notion that marriage was a civil contract, and if you look beyond the United
States into the rest of the world for the places where recognition of same-sex couples was
earliest in the ascendancy, the Netherlands was among the first countries to recognize any
legal relationship between members of a same-sex couple with rights and obligations
even remotely parallel to marriage, and also a few years later perhaps the first to grant
civil marriage rights to same-sex couples. Coming back to the United States, as you may
know, New England has been in forefront of the legal recognition for same-sex couples,
so that Vermont was the first state, through the litigation in Baker v. Vermont and the
subsequent legislation demanded by the Vermont Supreme Court in that case, to grant
same-sex couples civil union status, that is to say full legal recognition without the name
of marriage, Massachusetts was the first state to grant same-sex couples full civil
marriage rights, and Connecticut the first state to do either without litigation preceding
the legislative action. (The legislature of Connecticut passed a civil union statute very
much like Vermont’s even though no court had demanded on constitutional grounds that
it do so.) Now why were these three states in the forefront with the rest of New England
not far behind? The most frequently given explanation, which clearly does have a lot to
do with it, is that in the conventional red-blue map of the United States drawn in the last
several Presidential elections, few states are deeper blue than these, and states that are
relatively liberal will be more receptive to same-sex couples. But then, at least two other
things, should perhaps be taken into account. The first is that each of these states is one
with a legal historical tradition of Puritanism rather than Anglicanism, and therefore has a
legal historical basis for thinking of marriage as a civil contract. The second is something
one might initially be tempted to think would work against the political will to recognize
same-sex couples, to wit that each of these states has a comparatively high percentage of
Catholics in the population. This turns out to work in favor of same-sex couples, because
Catholics are not as invested in marriage as the state defines it and marriage in the faith
tradition being one and the same.
Another example of this happening that I’ve written about before is that the first case that
made its way fully through the litigation process up to the U.S. Supreme Court of samesex couples asserting a constitutional right to marry, coincidentally also captioned Baker,
the couple, one of whom was a law student and a devout Catholic, went to mass regularly
and talked to their priest about how the Church and how Christ Jesus would view their
relationship. The priest said that he thought that the Church could not recognize their
relationship, but the state should, so that when the couple got their civil license,
notwithstanding being practicing Catholics, they had a Protestant minister seamlessly
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perform a civil and religious ceremony.7 (Now this is not to say that this is a stable
configuration. The hierarchy of the Catholic Church is every bit as opposed to same-sex
marriage as a matter of official policy as anyone of the evangelical Protestant churches,
and they may eventually work up their faithful to join them.)
The tendency of Protestants to conflate civil and religious marriage doesn’t just explain
the virulence of objections by evangelical Protestants to state recognition of same-sex
marriage, it also explains another interesting development in family law, which is
covenant marriage, an alternative form of civil marriage available in about half a dozen
Southern states. Covenant marriage is somewhat harder to get out of than ordinary civil
marriage, which some have correctly described as terminable at will in most states, New
York being an exception with its retention of fault divorce. All states, including New
York, allow couples who separate and agree to get a divorce. Covenant marriage is
somewhat harder, though not impossible, to terminate through divorce. Political
scientists looking at the legislative and political action that generated covenant marriage,
particularly in Louisiana, the first state to adopt covenant marriage, have stressed the
leading role of evangelical Protestants, including Tony Perkins, who thought that this
legislation was legislation a "politically more palatable” alternative to their preferred
option of generally reinstituting state laws "limiting access to divorce and restoring the
requirement that someone must be to blame" for the failure of a marriage. This, I think,
also is accounted for by the fact that there is no air between civil and religious marriage
for Protestants. Catholic priests can wave a finger at their faithful and say don’t get
divorced and make it stick legally through canon law. Protestant pastors may also wag
their fingers and say don’t get divorced, but there’s nothing legally either in church law
or in civil law that gives them enforcement power. There were rumors when covenant
marriage first passed that a host of Protestant ministers said to members of their
congregations, we will only marry you if you agree to get a covenant marriage. It has not
worked, however. The number of covenant marriages is miniscule - as a percentage of
new marriages in the states in which covenant marriage is on option it has remained in
the single digits.
Now I hope you have all seen parallels in my historical and analytical account to another
major contemporary issue about which evangelical Protestants are exercised. What we
have in the claims about marriage is, I would argue, Protestants taking a nominally
secular institution, co-opting it for sectarian ends, getting accustomed to their ownership,
and then feeling an understandable, though not justifiable, sense of loss and grievance
when that ownership is challenged and taken away. This seems to me directly parallel to
the much more longstanding and famous arguments about public schools. So, as with
marriage, so with the public schools, Protestants took a state-sponsored, state-funded
institution, state-regulated institution, co-opted it for sectarian ends, and felt a sense of
7
Mary Anne Case, Marriage Licenses, 2004 Lockhart Lecture, 89 Minn. L. Rev. 1758
(2005) for further discussion.
6
loss and grievance when their control was challenged and taken away. Beginning with
the nineteenth century Bible wars, where there was dispute about whether the King James
version or some other version of the Bible should be taught, it continues through the
twentieth century disputes about prayer in the schools to the present day disputes about
whether creationism or intelligent design can be taught in the public schools. As with
marriage, so with the schools: While Protestants took over the state-sponsored institution,
very early on, Catholics, initially went into the Bible wars and political disputes over
funding demanding that they also have their Douay version taught and that they also have
sectarian schools in which their doctrine is taught be publically funded, state-sponsored
and denominated public schools. They soon realized they had lost that battle and went on
to establish their private parochial schools, as did the Jews establish private religious
schools, and therefore neither Catholics nor Jews felt quite that sense of loss and
grievance when the courts forced a disaggregation of religious and public education. Not
until very recently, partly in the South as a result of the ban on segregation in the public
schools, but also as a result of things like prayer and the Bible being taken out of public
schools, did evangelical Protestants have to cope by setting up their own private sectarian
schools.
OK, that’s all for the first half of my presentation, that is to say why evangelical
Protestants are right to feel threatened. Now for the second half, what the law should do
about it. I come at this, not just as a feminist, a supporter of same-sex marriage, a scholar
of the regulation of sexuality, but also as a con law scholar, and as a teacher from day one
of my legal academic career of the First Amendment. Anyone who has just a colloquial
understanding of the First Amendment’s non-establishment clause and the separation of
Church and state it has been thought to mandate should be surprised by the way the civil
law in the U.S. regulates marriage. The idea that a minister of the gospel or other
member of the clergy can simultaneously and seamlessly perform both a civil and a
religious marriage should be pretty antithetical to our view of the separation of church
and state. It certainly isn’t the way a whole lot of other countries, including some, like
Germany, which constitutionally enshrine, not separation of, but cooperation between,
church and state, go about regulating marriage. In Germany, only civil marriage has the
force of law and it may be performed only by a civil registrar. German couples are free to
have an entirely separate religious ceremony performed by clergy, but, this ceremony
"has no legal effect under German law."
It seems to me that one of the things we might consider doing is following the German
example, either by disaggregating civil and religious marriage while continuing to call
them both marriage or by adopting the innovative term civil union for anything the state
does and leaving the term marriage to religious communities. This would incidentally
solve some problems other than the ones I’m directly addressing, for example, in most
states it still is some sort of crime – not a capital offense as it was under Hardwicke’s
Act, but at least a misdemeanor, for a member of the clergy authorized to perform
marriages to do so in the absence of a civil license and in a way designed not to have
binding effect in civil law. (By the way, when we talk of a marriage license, colloquially
we think of them as a license to the members of the couple, but actually it’s a license to
the celebrant. It authorizes the one performing the ceremony –whether minister or justice
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of the peace, to do so.) So to perform a religious marriage that has no civil effect can be
a criminal offense – think about that from an Establishment Claus perspective. I’ve
offered to defend rabbis who came to me and said what do I do about this civil
prohibition on my performing a religious ceremony, and the context in which they wished
to do it was not by and large the marriage of persons of the same sex to one another. This
is because this so obviously has no civil validity in most states that it has generally not
led to threats of prosecution, the exception being the threatened prosecution of some
ministers in upstate New York in that brief period of time when the mayor of New Paltz
sought to authorize civil same-sex marriages. Consider instead the situation with respect
to California and New Jersey domestic partnership. California and New Jersey allow not
only same-sex couples, but also couples of opposite sexes one of whose members is a
senior citizen to register as domestic partners with almost all the rights and obligations of
marriage. This is done, as I understand it, largely to avoid bad consequences from the
perspective of pension and social security law for surviving widows who want to keep
their benefits from a prior marriage; it also may assist in estate planning. So there are in
California and New Jersey some deeply religious Jewish couples who may want for civil
legal purposes to register as domestic partners but not to marry, though they may still
want to get married in a religious ceremony. The rabbi who accommodates them in that
request could be breaking the law.
Now that’s not to say that getting the state out of the business of recognizing marriages
would be an unequivocally good idea. Some people would say the state should get
entirely out of the business of regulating unions. But, for reasons I’ve set out at length
elsewhere,8 having largely to do with that quintessential University of Chicago value,
efficiency, I think that would not be desirable or feasible. Here let me simply suggest
what the reaction of some of the evangelical Protestants I’m discussing might be to such
a suggestion. Some of them – and in other work I call these people fundamentalists,
defining the term in an unusual way (not the way it is typically defined) to mean those
who are unwilling to compromise but not necessarily interested in imposing their views
on others 9 - there certainly are some Protestants in the United States, and some Muslims
here and elsewhere, for whom getting the state out of the seamless interweaving of
religious and civil marriage would be good because they could then more directly
influence their own congregations and develop their own regulation of marriage - John
Witte of Emory has spoken about these people a bit. But there are others – and I’ll call
them perfectionists - who, just as they wish to keep or reassert control of the public
schools, wish to keep or reassert control over civil marriage, because instead of focusing
on speaking only to their own faithful, they want to impose on all of the rest of us the
rules they think are right from the perspective of their faith tradition.
8
Mary Anne Case, Marriage Licenses, 2004 Lockhart Lecture, 89 Minn. L. Rev. 1758 (2005) for further
discussion.
9
See e.g. Mary Anne Case, Feminist Fundamentalism and Constitutional Citizenship, forthcoming in
Gender Equality: Dimensions of Equal Citizenship, Cambridge University Press (2009)
8
I would urge on them the following, however: When they talk, as in the same-sex
marriage they so often do, about “preserving traditional marriage” one thing they ought to
realize is how little of traditional marriage on anyone’s definition there is left to preserve
in the American civil law of marriage. I mean by this, that first, apart from its sex and
gender aspects, marriage used to be for life and monogamous, as enforced by the civil
law. It isn’t anymore. Anyone can get a divorce and few if any are at risk of being
charged criminally with adultery. What used to be a status institution, with mandatory
rules imposed by the state has become far more contractual, with couples free to structure
their relationship. In other work, I’ve drawn an extended analogy between the
development of the law of marriage and of business corporations. As I said, the Bubble
Act paralleled Hardwicke’s act in asserting state monopoly control. One of many things
that an analogy between the Anglo-American legal history of marriage and corporations
brings out is that both used to be available only to the favorites of the state for certain
enumerated worthy purposes, over which they held a legal monopoly, procreation and sex
in the case of marriage, such that there were obstacles in a way to the marriage of, for
example, the impotent; in the case of corporations, exploring the East Indies, or building
a bridge over a given river. There’s also, I think, an analogy between divorce and
bankruptcy. Both used to be infused legally with notions of moral fault and also could
only be granted on certain grounds – just as their were fault grounds for divorce so there
were acts of bankruptcy in the absence of which one could not be discharged of one’s
debts. And to divorce or go bankrupt was seen as a failing, but over time, for both these
institutions, the moralistic tone, the notion that a thick and rich ethical vision was being
promulgated, fell out of the law, so now marriages, like corporate status, can be entered
into by almost anyone for almost any purpose. There is no requirement that a couple
procreate, that they have sex, that they live together or commingle their finances; they
can pretty much structure their lives as they see fir; nor need they marry to have sex or
procreate legally (just as they need not incorporate to run a business together). So with
respect to divorce and bankruptcy, the argument today is let’s not chain people, but let’s
put assets to their most productive use in the most expeditious way, so that the notion of a
fresh start is common to the modern American law of both divorce and bankruptcy.
So I think it might be worthwhile for people like the proponents of covenant marriage to
speak of restoring certain aspects of traditional marriage, but not of preserving them,
because they are no longer there in the law to be preserved.
The final thing I need to say on this score, going back to where I started, which is the
feminist argument and the constitutional sex discrimination argument for same-sex
marriage, is that another aspect of so-called traditional marriage that really isn’t there in
the law to be preserved is sex role differentiation. (One of my other projects is to see
what if anything is constant or universal in the history of marriage and what varies from
time to time and place to place. I have to say that I used to think the thing that seems
most universal is that marriage historically has been about sex role differentiation, but
what I have recently come to learn about the medieval canon law of marriage raises some
questions – the canon law, unlike the Roman, Jewish or Islamic law, and unlike the later
common and civil law, imposed identical obligations on both spouses.) Nevertheless,
evangelical Protestants have a very strong stake in reinforcing sex role differentiation in
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marriage. It was perhaps not coincidentally for the first time in 1998, after U.S. civil
marriage law had stopped enforcing sex role differentiation, that the Southern Baptists
promulgated their directive that it was a wife’s duty graciously to submit to her husband’s
servant leadership.10 The submission of wives was not a new concept to Southern
Baptists in 1998, but perhaps they were forced to juridify this aspect of their view of
marriage for themselves when they could no longer count on the state to do it for them.
Now, the submission of wives to husbands is something that could not without radical
constitutional change be reintroduced into American law. All sex role differentiation, let
alone subordination, between husbands and wives has been ruled constitutionally out of
bounds. This makes marriage in contemporary U.S. law since the last quarter of the
twentieth century something radically different from what it has ever been in history, so
that when people say that same-sex marriage would change civil marriage, what they fail
to realize or acknowledge is that that change has already happened. There can be no
legally enforced sex role differentiation, although of course, there still can be role
differentiation – one of the spouses can be a breadwinner and the other a homemaker, but
the law not only does not but cannot demand that the breadwinner be a male and the
homemaker a female. This is something that evangelical Protestants may see as a loss,
but it is a loss, that unlike the disaggregation of religious and civil marriage, they have
already suffered, and like the disaggregation of religious and civil marriage, it is one that
the Constitution demands they suffer.
10
See BAPTIST FAITH AND MESSAGE STUDY COMM., REPORT TO THE SOUTHERN BAPTIST CONVENTION
http://www.utm.edu/martinarea/fbc/bfm/1963-1998/report1998.html
10