Utah: Don’t Base Your Marriage Laws on Religion

Last week Utah defended its same-sex marriage ban in the Tenth Circuit Court of Appeals. The state offered the same old, same old argument that it can restrict marriage to “the traditional man-woman definition” because only heterosexual marriage is procreative. A child-centered definition of marriage is preferable to adult-centered marriage, the state argued, because the primary goal of marriage is children. The state criticized the district court’s conclusion that marriage concerns an adult relationship, explaining that Utah prefers “to guide as many procreative couples as possible into the optimal, conjugal childrearing model,” forgetting, perhaps, that many heterosexual marriages are childless by choice, infertility, or age.

Unlike many states who pretend their bans on same-sex marriage were passed for secular reasons, Utah was surprisingly straightforward in explaining that its marriage law is based directly upon its citizens’ religious values. The state even cited possible religious strife as a reason to keep the discriminatory laws in place.

Utah has it backwards. The Constitution provides a secular government in order to avoid religious strife. We are a nation governed by laws, not religions. Religious notions of marriage should not be forced upon citizens, even if a religious majority strongly believes in them.

On this subject, the historical record is clear. Procreation is a religious ideal about marriage that is rooted in Augustinian theology. Same-sex marriage equality is the Constitution’s standard that is based on the Equal Protection Clause. Utahns should support equality as their legal norm so that individuals may procreate, or not, as a matter of personal freedom.

The procreative ideal of marriage promulgated by Utah and other states is much older than the Constitution itself. Its lineage links to St. Augustine, the prominent Christian Bishop of Hippo who wrote On the Good of Marriage around the year 401 C.E. Augustine established the essential definition of marriage that dominated centuries of Christian history and later influenced American marital law. According to the bishop, marriage has three goods: procreation, fidelity and indissolubility.

Augustine was troubled by the sinfulness of sexual desire, which he viewed as an evil passion, distorted by original sin. Instead of insisting that Christians renounce all sex, however, he identified a moral rationale that justified some sexual activity, namely procreative heterosexual marriage. His theory of marriage channeled sexual desire into its proper procreative purpose within heterosexual marriage. Such limited sexual activity was moral because it served the goal of procreation, thus avoiding unruly passion and sin. Later Christian writers relied upon Augustine to argue that procreation was the primary purpose of marriage because it tamed the irrationality of the sexual drive into a rational purpose.

Those arguments haunt our laws today. In briefs to the Supreme Court, religious opponents of same-sex marriage defended Augustine’s conjugal account of marriage against all the modern understandings of love, intimacy, reproductive choice and parenthood that guide American marriages today. They found a receptive audience in Justice Samuel Alito, who (joined by Justice Clarence Thomas), dissented in United States v. Windsor, the Supreme Court decision that invalidated the federal Defense of Marriage Act [DOMA] for denying equal tax benefits to same-sex couples.

Alito’s dissent contrasted two “competing views” of marriage. One, the “traditional” or “conjugal” vision, says “marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing.” Traditional marriage is thus “exclusively opposite-sex” and “inextricably linked to procreation and biological kinship.” In contrast, the “consent-based” view defines marriage as the “solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons.” Although Alito recognizes that the consent vision of marriage is “very prominent” and “infuse[s]” our popular culture, he thinks states should be free to choose the Augustinian version.

Justice Alito’s and St. Augustine’s argument would have force only if one believed that most sexual activity is sinful, that childless couples are not really married, that most individuals don’t marry for love, or (as Judge Richard Posner observed) “supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriage.” Instead, today, thanks to a range of Supreme Court decisions from Griswold v. Connecticut to Roe v. Wade and Lawrence v. Texas, Americans can channel their sexual energies into consent-based sex and consent-based marriage without being required to procreate. If heterosexual marriage is based on consent, commitment, sexual attraction between two persons—and love—then there is no nontheological reason why gays and lesbians should not be free to marry in Utah or any other state.

Utah should stop trying to channel “as many procreative couples as possible into the optimal, conjugal childrearing model” of St. Augustine and instead let all Utahns instead enjoy optimal marriage equality. The equality-based law will protect all Utahns in a manner that the religion-based law cannot.

Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.