April 10, 2009
Law professor argues for role of government in marriage
Recent legal and legislative decisions to legalize gay marriage in Iowa and Vermont have brought suggestions from some commentators that government should get out of the marriage business entirely, grant civil unions to all couples and leave marriage to religious faiths.
But University of Iowa law professor Ann Estin said that while such ideas are interesting in the abstract, they fail to recognize the deeply rooted importance of marriage in American culture and the many ways that civil and religious marriage interact.
"Marriage is clearly understood across secular and religious frames to be a good thing, something to be encouraged, upheld and validated," Estin, a family law expert, wrote in her recently published essay "Unofficial Family Law." "For families, the opportunity to celebrate civil and religious marriage simultaneously is beneficial at both a symbolic level and a pragmatic one."
Estin said attempts have been made in various countries to separate the civil and religious natures of marriage and divorce. In some countries -- France, for instance -- couples have separate marriage ceremonies, one to receive a sanction from the state, the other from their religion.
Muslim and Jewish communities in many countries, including the United States, also have alternative dispute resolution systems to allow members of their faiths to divorce in accordance with their religious laws and separate from the civil divorce procedure.
Roman Catholic couples seeking a civil divorce must receive a separate marriage annulment from the church in accordance with canon law if they wish to continue to participate fully in their faith.
Estin notes that some people who support separating the two sides of marriage in the United States -- in other words, "privatizing" marriage -- argue that civil marriage is unneeded because a state government can regulate marriage and related family issues with existing contract and property laws.
But she argues that the interaction of civil and religious marriage law is useful and important. Solid marriages provide such a strong social benefit that it makes for better public policy to tie the religious and civil natures together.
"Concluding marriages with a single ceremony prevents the ambiguity and potential complications of different status in civil and religious law," she wrote. "In our society, as in many others, the definition of marriage . . . has been central to our self-definition as a community. Debate over marriage policy has been intensely joined because these are debates over who we are."
Estin's essay appears in the February 2009 issue of The Iowa Law Review. A copy can be downloaded online at http://www.law.uiowa.edu/journals/ilr/.
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