But, consider this: when a priest (or minister or rabbi or imam) signs a marriage license (a license issued by the State), is the minister not acting as an agent of the State as well as an agent of the Religious Body for whom he is a cleric?
What concerns me is that, as long as a minister is authorized (or required) to sign the marriage license, he becomes somewhat under the jurisdiction of the State and subject to the State's laws. (For example, I believe that it would be illegal for a minister to sign a marriage license if he or she was aware of a plural marriage, even if such a marriage was perfectly acceptable within the religious tradition that ordained the minister)
For example, in Maryland State Law (Family Law, Title 2, §2-406),
(a) Authorized officials.-
(1) In this subsection, "judge" means:
(i) a judge of the District Court, a circuit court, the Court of Special Appeals, or the Court of Appeals;
(ii) a judge approved under Article IV, § 3A of the Maryland Constitution and § 1-302 of the Courts Article for recall and assignment to the District Court, a circuit court, the Court of Special Appeals, or the Court of Appeals;
(iii) a judge of a United States District Court or a United States Court of Appeals; or
(iv) a judge of a state court if the judge is active or retired but eligible for recall.
(2) A marriage ceremony may be performed in this State by:
(i) any official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony;
(ii) any clerk;
(iii) any deputy clerk designated by the county administrative judge of the circuit court for the county; or
(iv) a judge.
(b) Period during which ceremony may be performed.- Within 6 months after a license becomes effective, any authorized official may perform the marriage ceremony of the individuals named in the license.
(c) Performance by unauthorized individual prohibited; penalty.-
(1) An individual may not perform a marriage ceremony unless the individual is authorized to perform a marriage ceremony under subsection (a) of this section.
(2) An individual who violates this subsection is guilty of a misdemeanor and on conviction is subject to a fine of $500.
(d) Performance between individuals within prohibited degrees prohibited; penalty.-
(1) An individual may not knowingly perform a marriage ceremony between individuals who are prohibited from marrying under § 2-202 of this title.
(2) An individual who violates the provisions of this subsection is guilty of a misdemeanor and on conviction is subject to a fine of $500.
(e) Performance without license prohibited; penalty.-
(1) An individual may not perform a marriage ceremony without a license that is effective under this subtitle.
(2) An individual who violates the provisions of this subsection is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $500.
What happens if the courts decide that it would be illegal to not allow gay marriage (violation of the 14th Amendment or some such)?
It could be interpreted that a church official authorized in §2-406(a)(2)(i) is required to perform such a ceremony. (He is, after all, defined as an agent of the state, by virtue of his authorization to sign the license)
Think I'm crazy for saying that? Have you actually read the SCOTUS decision in Roe v Wade? The logic applied above is clear and plain compared to the convoluted logic applied in that famous decision. Think Maryland has got screwed up laws? (Well, it does, but that's not the point) Check your own state's laws up.
The sole advantage to what Kmiec proposes is that it takes marriage completely out of the legal picture and no longer mixes up Church and State, like I showed exists today. If "marriage" (vice a "domestic contract") is solely the purview of the Church and is not the State's business, then the protections of the First Amendment would clearly apply. Else, the State (through the courts) could assert primacy and demand compliance.
Think that this somehow dilutes the solemnity of marriage? Well, I would submit that they're not all that solemn today: with no-fault divorce, prenuptial agreements, and so on, we have a divorce rate of over 50% in this country. So obviously society doesn't hold marriage in very high esteem nowadays anyway.
Mind you, I would prefer that marriage was still a sanctified bond. I believe that it is only valid when it is entered into and kept per the precepts of Scripture...but since I am in the minority in American society (anybody divorced and remarried for any other reason than authorized by our Lord -- Matt 5:31-32 -- should check themselves before saying that they believe in the Holiness and Sanctification of the marriage bond)
Sorry about the links in post #29 (I thought they were absolute...they weren’t...they were relative)
In many countries, civil marriage is distinct from religious marriage. I got married in Mexico. My wife and I had had to have a civil ceremony, presided over by a judge, in addition to our Nuptual Mass.
Heterosexual marriage serves a secular, social purpose. It's great that religions sanctify the institution, but it is not only a religious institution.
That's why the libertine proposal to "get government out of the marriage business" is so absurd.