Marriage, the law, and the Church

Could separating legal and religious traditions be the way forward for marriage equality, asks George Browning.

By George Browning

May 19 2017There are many aspects to marriage. The State quite rightly has an interest from a legal perspective. Legality includes determining eligibility, ensuring proper and free consent, making provision for property title, taxation, welfare benefits, and the rights and responsibilities that relate to children. The State provides legal security through licence, legally in force until death or divorce. The State records termination through death, divorce or nullity. Marriage celebrants (ministers of religion and civil celebrants) act on behalf of the state in formalising the legal marriage agreement between the parties. It is of course in the interest of the State that marriages are stable and contribute to a harmonious and peaceful civil society.
Unsurprisingly Australia followed the English pattern in authorising registered ministers of religion to act on its behalf: those so registered need to follow the authorised rite of their denomination or religious identity in the formalising of the marriage. More lately authorised civil celebrants have multiplied as the need for a marriage celebration outside a religious building has increased. Often these civil celebrants use a rite with quasi religious overtones “for better or worse, for richer or poorer” etc. 
For many, perhaps most, marriage is of course more than a legal contract, it is a covenant of love between two people in which commitment is made to serve honour and respect one another, indeed to fulfil the life of the other. Religious conviction undergirds marriage with various levels of covenantal love and commitment. I am committed to a lifelong union. I believe the covenant is made with divine sanction and therefore is a union of grace. The arrival of children and grandchildren deepen the union and extend the layers of responsibility and accountability.
Marriage as I understand it is a commitment between a man and a woman.
But do the legal requirements of marriage by the state and the covenantal or sacramental expression of the couples love need to be formally linked? I do not think they can any longer; indeed the linking of them is causing unnecessary hurt and division in Australian society. 
It has been my conviction for some time that the legal requirements of the state for the registering of a marriage should now be separated from the covenantal expression of love for each other, expressed either through a secular ceremony or a religious one. Marriage celebrants, be they ministers of religion or civil celebrants, should no longer do the work of the State. The work of the State should be done formally at a state sanctioned place of registry according to the requirements of law.
This would then free up couples to celebrate their covenantal love for one another as they choose. This would allow religious ceremonies to take on very specific meaning and would be prepared accordingly.
This week Senator Penny Wong has re-entered the marriage debate seemingly suggesting that people of religious conviction should not impact the lives of others through opposition to same-sex union. Being a Christian herself, this is an interesting position to hold. Everyone is entitled to contribute to the debate. It is my contention that Penny’s position can only be taken seriously if the separation I am suggesting takes place. The state has the right, indeed the obligation to enact laws which further the lives of the majority of its citizens. Given polls suggest the majority favour ‘marriage equality’ then this legal provision should be provided to all.
‘Marriage’ would then have different layers of meaning as a great many words or concepts do in every language. Marriage would mean a legal contract entered into according to the legislated provisions of the parliament. It would also have another meaning all together expressed through the religious or secular ceremony of choice. The latter would normally be the ceremony into which considerable investment is made and to which family and friends gather. The former would be a formality according to law. The latter would be open to the institution (or person) responsible to agree or decline to agree to participate in the intended union. The sacramental celebration of the couple’s love could (probably should) be accompanied with a jointly signed certificate which celebrates the intention of the ceremony. It may also become normal for this union to be reinforced through celebrations every seven or ten years.
The marriage debate has met an unfortunate impasse. Overcoming this impasse will not heal the rift that already exists. Whatever decision is made, some will feel vindicated and others aggrieved.
Separating the legal requirement of the State from the covenantal expression of love seems to me to overcome this impasse.

Dr George Browning is the former Bishop of Canberra and Goulburn. This article was published on his blog on 19 May 2017. See http://www.georgebrowning.com.au