Invoking a constitutional principle grounded in the Establishment Clause of the First Amendment, progressive scholars have advocated the “disestablishment” of certain privileged forms of family, of compulsory heterosexuality, and of sex and gender as legally salient categories. (See, e.g., Alice Ristroph & Melissa Murray, Disestablishing the Family, 119 YALE L.J. 1236 (2010); Lisa Duggan, Queering the State, SOC. TEXT, Summer 1994, at 1; David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REV. 997 (2002).) In each case, the term “disestablishment” is used metaphorically. The family, heterosexuality, and sex/gender binaries are all analogized to state religions—hegemonic ideologies inappropriately supported by law. In this way, the First Amendment’s prohibition of an established church offers a familiar vocabulary for promoting pluralism—freedom of choice and experimentation—in intimate relationships, identity formation, and self-expression. Yet such figurative usages, though compelling in and of themselves, might leave the impression that disestablishment in the usual, secularist sense is a fait accompli in these very domains of personal and social life. That impression would be mistaken, as I argue in this presentation, Disestablishing Marriage.
The most immediate impetus for Disestablishing Marriage was the recent controversy over Rowan County Clerk Kim Davis’s refusal to issue marriage licenses to same-sex couples in compliance with the Supreme Court’s decision in Obergefell v. Hodges. Davis argued that “authorizing” same-sex civil marriages—attesting to their validity under Kentucky law—would conflict with her religious definition of marriage. This heartfelt objection rests on the unsettling proposition that civil and religious marriage are, or ought to be, similar institutions. Millions of Americans share this belief. Why? Is their equation of civil and religious marriage simply a matter of wishful thinking—a tenet of faith, if you like? Or is their seeming misunderstanding in some sense justified? Perhaps it is scarcely a misunderstanding at all?
Disestablishing Marriage identifies and critiques the government’s own role in shaping Americans’ pervasive conflation of civil and religious marriage, the historical roots of such entanglement, and their contemporary social and political costs and benefits. It focuses on a number of instances where law, policy, and official legal rhetoric muddy what might otherwise be a clear distinction. These include statutes sanctioning religious solemnizations of civil marriage (laws that, as a number of critics have argued, should be held to violate the Establishment Clause); cohabitation and polygamy bans that purport to reach purely private and/or religious arrangements (see, e.g., the Utah Supreme Court’s decision in State v. Holm, recently contradicted by a federal district court); judicial rhetoric, particularly that of the U.S. Supreme Court, that casts marriage in overtly “sacred” terms; the very designation “marriage” (as opposed to a term with less religious baggage); and the Court’s ill-conceived identification of civil marriage as a positive, fundamental right (as opposed to a negative liberty to enter private and/or religious marriages).
While the legal and political work of disestablishing marriage will not be easy, it is a cause that might appeal as much to religious conservatives as to leftists and libertarians. For the former, disestablishment will create opportunities to distance their sectarian conceptions of marriage from a secular version tainted by, among other things, its accommodation of homosexuality. For the latter, disestablishing marriage will mean demystifying it, making it more susceptible to popular critique, political reform, and competition from other institutions, and perhaps even abolition.