Advocates for marriage equality came away from yesterday’s Supreme Court pronouncements on same-sex marriage more jubilant than battered. But there was plenty of hurt to go around. Religious commentators are split, like most of the nation. The legal morass has just gotten deeper. The legacy of the Supreme Court’s Proposition 8 decision will be that there is a lot more litigation to come. Opponents of the Defense of Marriage Act (DOMA) won outright (and this is the moment to acknowledge that I was among those historians of marriage who joined a “friend of the court” brief urging the Court to strike down the federal law).
The vital relationship of law, religion, and history is key to Justice Anthony Kennedy’s opinion for a 5-4 majority in Windsor, the DOMA case, which stressed both the traditional location of marriage law in the states, and the ways that the national constitution and federal government have intervened even in such local issues, generally in the interests of equality and the prevention of discrimination, which was the focus of the Windsor opinion.
The opinion did not explicitly address the multiple ways that religious commitments factor into the legal relationship we call marriage, but it is safe to say that in the United States, which has a high “marriage metabolism” according to scholars and where the overwhelming majority of marriage ceremonies (same-sex and otherwise) are celebrated in religious rituals and spaces, religious actors play a central role. Equally important, the lives of marrying couples are sculpted and reflected in such ceremonies. The performance of a marriage (the “I now pronounce” part is what scholars call a “performative”—it becomes true through the pronouncement, by being performed) is a marker in religious life as well as in political and social culture. Such a ceremony literally “solemnizes” an aspiration to love and live in companionship.
Some religious leaders are genuinely concerned that they may be forced to provide such ritual validation to those they believe as a matter of religious conviction are not eligible to marry. This is something of a red herring, honestly. Those who are divorced in civil law, for example, but not in the eyes of the Catholic Church (that is, without a religious annulment of the marriage) have not been able to coerce Catholic priests to marry them in violation of church teaching.
More likely to be jarring are the ways that—if federal officials begin systematically erasing gender distinctions in federal laws that have now been overturned by Windsor—smaller yet ubiquitous changes in citizenship, federal welfare policy, Social Security, immigration, and more will follow. As the historian Margot Canaday argued persuasively in her 2009 book The Straight State, the rise of the federal bureaucracy and the creation of a system of rewards targeted explicitly at heterosexual couples traveled together in time, across the twentieth century. The disentangling of such rewards from hetero-normativity will require intricate and wide-ranging change, and will affect daily life deeply.
Those who support civil unions, as well as supporters of full marriage equality—a total of well over 60 percent of the American population—are likely to welcome these changes. Alterations in federal law would affect even those 31 states that have enacted one man-one woman marriage provisions as part of their constitutions, however. Indeed, we have seen one aspect of such change in Massachusetts, where debates about the effect of same-sex marriage on Catholic adoption agencies has gotten significant attention, including from Republican presidential candidates in 2012.
In Massachusetts, the key was state support for the agencies. To receive state funding, even a private agency must abide by non-discrimination laws of the commonwealth. Money from the state was the true issue, in other words.
This is where a second massive layer of bureaucracy becomes apparent, one that has often been overlooked by scholars and journalists alike. Catholic Charities USA, the Salvation Army, Habitat for Humanity, United Jewish Appeal, and more have become vital participants in the government’s delivery of poor relief, emergency aid, disaster relief, and so on. They grew in size (and in their close relationship to government) over the same period that Canaday traces the growth of the “straight state.”
These large charitable arms of particular denominations or ecumenical cooperation are the religious organizations most likely to be affected by the disappearance of preferences in federal law. The extent of such change will become apparent only once we start to see modified regulations and procedures play out at ground level.
At the outset of President Obama’s first term, the question of discrimination among religions by such large charities, which employ many thousands of people, was a hotly debated issue. Despite the hopes of many Obama supporters, his administration has never intervened in this area.
Instead, the federal government will now be charged with an even more wide-ranging mandate—ensuring that the federal bureaucracy does not discriminate on the basis of sexual orientation in the provision of services to Americans. Religious bureaucracies that receive federal funding will be swept in to this recalibration, and that is where religious opponents of marriage equality will feel the bite most deeply, and nationwide.
Sarah Barringer Gordon is Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania. Her most recent book is The Spirit of the Law: Religious Voices and the Constitution in Modern America.