take religious marriage seriously?

[jenk]

Part of me thinks "It takes law professors to come up with this". But I recall CS Lewis suggesting something remarkably similar in Mere Christianity:

There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, and the other governed by the Church with rules enforced by her on her own members.

Paul Campos' column in the Rocky Mountain News takes this a bit further:

Here's the plan: Civil marriage licenses would continue to be issued by the government [...] Religious marriages, however, would be a different matter.

Let us imagine that John and Jane decide to get married in the Roman Catholic Church. [...] As long as the Catholic Church said John and Jane were still married, they would be considered married by the government.

[...I]f John decided he would prefer to enter into a civil marriage with Jackie (or Jack) rather than remaining married to Jane, he would be allowed to do this only if the Catholic Church agreed to release him from his wedding vows. Until then, he would remain married to Jane, and would continue to bear all the legal obligations created by that marriage.

This might sound like a radical idea, but legally speaking, it is merely the standard way in which we treat most business contracts. A friend of mine, law professor Stephen Safranek, is currently making this argument in an Ohio lawsuit involving a divorcing Catholic couple.

As Safranek points out, federal law requires that when a business contract lays out a process for arbitrating disputes that arise about the contract's meaning or enforcement, that process must be honored by the courts. Why shouldn't marriage contracts be treated with as much respect?

This is also similar to the idea of "Covenant Marriage" - but with the twist of permitting institutions other than the state to write the initial marriage contract. In Campos' example, the contract is written by the Catholic Church. But why not by a Wiccan coven, for a year and a day? Or (gasp) by the individuals involved? (Well, granted, I'm sure starry-eyed idiots would put in all sorts of stupid stuff, but ...)

And, as Campos points out, this would give the opportunity for those who believe that marriage is a sacred, lifelong bond to act on it. Might be interesting to see if they would. It also would make it clearer that the church and state are separate, which I also think is a good thing. To quote CS Lewis again:

[The question is] how far Christians, if they are voters or Members of Parliament, ought to try to force their views of marriage on the rest of the community by embodying them in the divorce laws. A great many people seem to think that if you are a Christian yourself you should try to make divorce difficult for every one. I do not think that. At least I know I should be very angry if the Mohammendans tried to prevent the rest of us from drinking wine.

(Andrew Sullivan discusses CS Lewis' take on church, state, and marriage here).