Alan Brownstein writes:
In order to answer Mark's question, we have to decide whether there is a
constitutional dimension to the cultural capital associated with
marriage (accepting Perry's analysis for the moment). Let me pose a
hypothetical question. Are religious individuals entitled to a vote on
the question of what constitutes a religion for cultural capital
purposes? A group calls itself a religion. Members of other faiths are
willing extend to them the same statutory accommodations available to
other faiths, but balk at the law referring to this group's beliefs as a
religion.
This is an interesting hypothetical, but not entirely apposite, it
seems to me, for at least two reasons.
First, "marriage" differs from "religion," in that (1) it is an
institution, and not only a word, (2) there is a long and complicated
history, going back at least a thousand years, of both contestation and
intertwining between the religious/spiritual and civil/secular
aspects/identities of marriage, and (3) perhaps most important, while we
might imagine a world in which the various meanings of marriage could be
kept hermetically sealed off from each other, that is not our world, at
least right now. Indeed, the civil state has been as insistent as many
religious folk are on refusing to erect a wall between "religious" and
"civil" marriage. (In many states, for example, it is simply not possible
for a heterosexual, otherwise qualified, couple even to try to enter into a
"merely religious" wedding: chances are that the wedding will be given
civil effect, regardless of the lack of a marriage license. And, at least
in Utah, a "merely religious" marriage can subject one to a bigamy
prosecution.) In this sense, marriage is radically different from words
such as "religion," and, for that matter, from other cultural institutions
such as, say, the definition of adulthood. As I point out in my Oxford
article, we do manage, without any difficulty, to wall off the secular
legal idea that the age is majority is 18 from, for example, the Jewish
idea that a boy becomes a "bar mtizvah" at age 13 and a girl becomes a bat
mitzvah at age 12. But marriage, for all sorts of reasons, is just different.
Second, it's worth emphasizing that something like my argument
about "religious capital" can have a "constitutional dimension" without
necessarily implying a hard constitutional "entitlement." (Oddly enough,
if there is anything like an "entitlement" argument here, it might well be
on the other side of the equation, in favor of recognizing a right to
full-fledged same-sex marriage, in that, for certain religious traditions
(primarily Protestant, as opposed to Catholic or Jewish or Hindu, etc.), it
is theologically difficult to conceive of a genuine rather than
metaphorical "religious marriage" apart from an underlying civil institution.)
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law -- Camden
217 North Fifth Street
Camden, NJ 08102
[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/
Work: (856) 225-6004
Fax: (856) 969-7924
Home: (610) 896-5702
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