Sam Smith, Progressive Review – I’ve long felt that on both the abortion and the gay marriage issue, activists were not strong enough in making the case that negative laws on such matters are irrefutably the result of religious views and regulations and hence government’s involvement represents making a law “respecting an establishment of religion, or prohibiting the free exercise thereof” in clear violation of the Constitution.
In other words, instead of considering the issue from the viewpoint of women or gays, look at it from the viewpoint of religions or churches within religions that permit such practices as abortion or gay marriage. They don’t have to be in the majority; they simply have to exist. In effect, the government is placing Catholicism or Mormonism above more liberal faiths.
It can be rightfully argued that the government has some interest in such matters – most significantly from the health standpoint – but it may not ignore the Constitution simply because a prohibition is traditional or favors the religions of the majority of voters.
In 1802, Thomas Jefferson wrote to the Danbury Baptists: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their ‘legislature’ should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”
James Madison’s views were similar: “Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience, or that one sect might obtain a preeminence, or two combined together, and establish a religion to which they would compel others to conform.”
Wikipedia – From the early Christian era, marriage was thought of as primarily a private matter, with no religious or other ceremony being required. Prior to 1545, Christian marriages in Europe were by mutual consent, declaration of intention to marry and upon the subsequent physical union of the parties. The couple would promise verbally to each other that they would be married to each other; the presence of a priest or witnesses was not required. This promise was known as the “verbum.” If made in the present tense (e.g., “I marry you”), it was unquestionably binding; if made in the future tense (“I will marry you”), it would constitute a betrothal. But if the couple proceeded to have sexual relations, the union was a marriage. One of the functions of churches from the Middle Ages was to register marriages, which was not obligatory. There was no state involvement in marriage and personal status, with these issues being adjudicated in ecclesiastical courts.
It was only after the Council of Trent in 1545, as part of the Counter-Reformation, that a Roman Catholic marriage would be recognized only if the marriage ceremony was officiated by a priest with two witnesses. The Council also authorized a Catechism, issued in 1566, which defined marriage as, “The conjugal union of man and woman, contracted between two qualified persons, which obliges them to live together throughout life.”
This change did not extend to the regions affected by the Protestant Reformation, where marriage by consent continued to be the norm. As part of the Reformation, the role of recording marriages and setting the rules for marriage passed to the state; by the 1600s many of the Protestant European countries had a state involvement in marriage.
In the early modern period, John Calvin and his Protestant colleagues reformulated Christian marriage by enacting the Marriage Ordinance of Geneva, which imposed “The dual requirements of state registration and church consecration to constitute marriage” for recognition. That was the first state involvement in marriage.
In England and Wales, Lord Hardwicke’s Marriage Act 1753 required a formal ceremony of marriage, thereby curtailing the practice of Fleet Marriage. . . The Act required a marriage ceremony to be officiated by an Anglican priest in the Anglican Church with two witnesses and registration. The Act did not apply to Jewish marriages or those of Quakers, whose marriages continued to be governed by their own customs.