Even those sympathetic to Indian’s efforts to resist the gay-marriage tide should be a little uncomfortable with a provision that could be seen as a huge intrusion by the state into religious matters that are none of its business.
Of course, it all depends on how “solemnize” is interpreted. If it just means someone such as a county clerk who issues the certificate and sends a notice of it to the state, the law is on firm ground. The state is merely reinforcing its own prerogatives: If it’s not legal for two people to get married under the state’s rules, it’s not legal for someone to marry them.
But couldn’t it also apply to someone who performs the marriage ceremony under a church’s rules? Several mainstream religions recognize gay marriages – Episcopalians, for example, and the United Church of Christ. Is the state telling members of the clergy they might face fines and even jail time if they perform same-sex nuptials? How does that fit into “freedom of religion”?
But when it comes to marriage, governments already breech the church-state wall in a way most Americans would not tolerate on any other issue. There are two tracks of marriage – the religious one in which the couple is recognized by the church, and the civil one in which the couple is recognized by the state, thus receiving certain benefits and obligations.
The two paths intertwine somewhat, but they do not converge. You can just take the civil ceremony and skip the religious part, but you can’t just do the religious ceremony. You have to get the state’s certificate of approval for it to be a “real” marriage.
That brings us to the debate we’ve been reluctant to have but seem to be edging toward: Why not uncouple the two? Let people take their vows in whatever religious or private ceremony they chose and call it marriage, and just have the state enforce the contractual obligations the way it does for all other contracts. Would that still protect the state’s interests, such as providing for the well-being of children? Or would it be the final step in destroying a vital institution?