Part III | Expanded Analysis
Category C | Discrimination
Topic 15 | Distinguishing civil marriage and holy matrimony
Much of the controversy around same-sex marriage is a result of conflating the civil and religious dimensions of marriage. It is possible to support civil marriage (or civil unions) for same-sex couples while believing that marriage as a religious rite or ordinance (such as holy matrimony or a temple sealing) should be conducted in accordance with religious doctrine or law.376
Introduction
Civil marriage is a legally recognized union between two individuals, conducted by a government official, such as a judge, magistrate, civil registrar, or other licensed or authorized civil celebrant. Requirements regarding the qualifications, performance, and obligations of civil marriage are governed by the laws of the state or country in which it is performed.377 A lawful civil marriage will result in the legal and social recognition of the couple’s union, with implications for rights and responsibilities such as taxation, inheritance, and legal protections.
While civil marriage does not require religious rites or ceremonies, individuals may choose to hold a religious ceremony in conjunction with, or in place of, a civil ceremony.
In more recent years, jurisdictions around the world—including the United States at the federal level—have legally recognized the right of same-sex couples to marry civilly.378
Holy matrimony refers to the contract, covenant, or sacrament of marriage within a religious context. It is generally solemnized by an authorized religious leader in a sacred building or space. Holy matrimony is regarded as more than just a legal agreement and exchange of personal promises; it is seen as a sacred covenant between a couple and God and a means of receiving God’s blessings and direction in marriage. In many religious traditions, holy matrimony also implies certain moral or doctrinal expectations, such as the permanence of the marriage, sanctity of the marital relationship, and responsibility for procreation.
Some critics may regard requirements associated with holy matrimony to be discriminatory. For example, many religious denominations decline to extend rites of holy matrimony to same-sex couples. But such requirements generally originate in foundational religious doctrines and teachings, not unlawful discriminatory animus. Most governments respect the autonomy of religious organizations to stipulate requirements for holy matrimony, as part of a broader right to determine their own internal affairs.379
In some jurisdictions, including most U.S. states, holy matrimony performed by a religious officiant authorized by a religious organization will have civil/legal effect if a couple also fulfills other legal prerequisites: for example, obtaining a marriage license from the state, being of age, and entering the marriage voluntarily. In other jurisdictions, a civil marriage ceremony is required in addition to holy matrimony for a marriage to have legal effect.
While overlapping authorities, ceremonies, or requirements can exist in some places, holy matrimony and civil marriage should be considered distinct, for purposes of maximizing rights protections for all.
Protections for both civil marriage and holy matrimony
Though some see support of rights to same-sex civil marriage and to holy matrimony as antithetical, laws have successfully passed that contain protections for both. In 2015, for example, two bills passed into law in the U.S. state of Utah with widespread support from both religious communities and the LGBTQ community.380 Known collectively as the “Utah Compromise,” the law guarantees the right of same-sex couples to be married civilly by a state officiant while protecting the legal rights of religious organizations and leaders “to decline to host marriage celebrations with which they do not agree.”381
At the federal level in the United States, the Respect for Marriage Law382 passed in 2022 with support from religious communities and LGBTQ advocates. The law requires states to recognize legal marriages and claims arising from legal marriages regardless of sex, race, or other protected grounds.383 The law simultaneously guarantees that, consistent with the U.S. Constitution’s First Amendment, religious organizations “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”384
Reasons for supporting dual protections
As demonstrated by the Utah Compromise and the Respect for Marriage Act, legal and social space for both same-sex civil marriage and holy matrimony can be made without compromising core principles of nondiscrimination and religious free exercise. There are several reasons why advocating for dual protections is possible, and even wise.
First, protecting rights to both holy matrimony and same-sex civil marriage acknowledges and protects the dignity interests of all involved. The congressional findings accompanying the Respect for Marriage Act state that all marrying couples—including interracial and same-sex couples—"deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.”385 At the same time, the findings acknowledge that “[d]iverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises” and affirm “that such people and their diverse beliefs are due proper respect.”386
It is important to note that acknowledging the dignity interests of LGBTQ individuals does not necessarily imply admiration and approval of their lifestyle choices. Nor does acknowledging the dignity interest of religious individuals and organizations imply admiration and approval of their beliefs and doctrines. Rather, focusing on human dignity simply allows diverse individuals and groups to recognize their shared humanity and inherent value—a necessary step in finding solutions for living together peaceably in pluralistic societies.
Second, protecting rights to both holy matrimony and same-sex civil marriage promotes “fairness for all” rather than zero-sum outcomes. President Dallin H. Oaks of The Church of Jesus Christ of Latter-day Saints has said that, where seeming conflicts between nondiscrimination and religious exercise rights exist,
"[a] basic imperative is that we should not seek total dominance for our own position; we should seek fairness for all. Specifically, people of faith should not contest every nondiscrimination law or policy that could possibly impinge, however insignificantly, on institutional or individual religious freedom. Likewise, proponents of nondiscrimination need not contest every religious freedom exemption from nondiscrimination laws. The goals of both sides are best served by resolving differences through mutual respect, shared understanding, and good faith negotiations. And both must accept and respect the rule of law."387
The Utah Compromise and Respect for Marriage Act are evidence that, while conceding legal and social space for others to live their own lifestyles and beliefs may be necessary, “compromise of core principles” is not.388
Third, protecting rights to same-sex civil marriage, in addition to holy matrimony, allows more people in committed relationships to enjoy the bundle of rights in legal marriage—related to taxation, retirement benefits, childbirth and adoption, inheritance, health care, and more. It can also help strengthen social stability, creating broader “buy in” into the bundle of responsibilities inherent in legal marriage—such as nurturing familial bonds, providing financial support for spouse and children, being faithful to spouse and children, and more.389
And finally, standing up for the rights of others can be the right thing to do—full stop. But it can also be returned to us through reciprocation. Maintaining the right to holy matrimony, and freedom of religion generally, depends on the support of more than just religious adherents. The Utah Compromise, Respect for Marriage Act, and other, grassroots efforts demonstrate that when we reach across divides to ensure the protection of others’ rights, others can and will be prompted to reciprocate and stand for our rights, in turn.390
Conclusion
Conflating civil and religious dimensions of marriage can create more heat than light and risks constraining the ability of individuals and couples to exercise their rights to and through marriage. In contrast, delineating differences between civil marriage and holy matrimony, and supporting rights to each, can help maximize human rights protections and human flourishing for all.
References
376. Toolkit Topic 15 (Distinguishing civil marriage and holy matrimony) was drafted with contributions from Trevor Zellweger, 2023 ICLRS Summer Fellow.
377. But see Valeriya Safronova, Utah Is a Destination Wedding Hot Spot, No Travel Required, THE NEW YORK TIMES (Sept. 17, 2021), https://www.nytimes.com/2021/09/17/style/utah-county-weddings-virtual.html (explaining how Utah County, during the COVID-19 pandemic, made virtual licensing and performance of marriages possible).
378. See, e.g., Obergefell v. Hodges, 576 U.S. 644 (2015); Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022) (codified at 28 U.S.C. § 1738C (2024)).
379. See W. COLE DURHAM JR., WILLIAM W. BASSETT, MARK A. GOLDFEDER & ROBERT T. SMITH, RELIGIOUS ORGANIZATIONS AND THE LAW § 5.1 (Defining Church Autonomy) Westlaw RELORGS (updated Dec. 2023).
380. Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality, S.B. 297, 2015 Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 17, 30, 63G (2024)); see also Antidiscrimination and Religious Freedom Amendments, S.B. 296, 2015 Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 34A, 57 (2024)).
381. Stuart Adams, The Utah Compromise, ALLIANCE FOR LASTING LIBERTY, https://fairnessforall.org/the-utah-compromise (last visited Dec. 2024).
382. Respect for Marriage Act, Pub. L. No. 117-228, § 4, 136 Stat. 2305, 2305–06 (codified at 28 U.S.C. § 1738C (2024)).
383. Pub. L. No. 117-228, § 4 (Full Faith and Credit Given to Marriage Equality).
384. Pub. L. No. 117-228, § 6 (No Impact on Religious Liberty and Conscience).
385. Id. § 2(3) (Findings).
386. Id. § 2(2) (Findings).
387. Dallin H. Oaks, Going Forward with Religious Freedom and Nondiscrimination (Nov. 12, 2021), ICLRS RELIGIOUS FREEDOM LIBRARY, https://newsroom.churchofjesuschrist.org/article/president-dallin-h-oaks-speech-university-of-virginia (Joseph Smith Lecture delivered at the University of Virginia).
388. Id.; see also Jonathan Rauch, Meeting in the Middle on Religious and LGBTQ Rights, DESERET NEWS (May 4, 2021), https://www.deseret.com/2021/5/4/22417652/meeting-in-the-middle-religious-freedom-lgbtq-rights-fairness-for-all-equality-act (quoting LGBTQ and conservative political leaders who preferred not refer to the Utah Compromise as a “compromise” because they “found a way forward where each entity was given additional rights and protections, but no one’s core values were compromised”).
389. Benjamin R. Karney et al., Legalizing Marriage for Same-Sex Couples Benefited LGBT Individuals and Their Children, RAND (May 13, 2024), https://www.rand.org/pubs/research_briefs/RBA2912-2.html (link to report PDF).
390. See, e.g., Marian Edmonds-Allen, Why Religious Freedom Matters to Me, ICLRS, TALK ABOUT: LAW AND RELIGION (Dec. 22, 2022), https://talkabout.iclrs.org/2022/12/22/why-religious-freedom-matters-to-me; see also Toolkit Topic 27 (Standing for and with others).