Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions

Lynn D. Wardle, Brigham Young University - Utah

Abstract

This paper considers how the legal regulation of marriage impacts upon religious liberty, how religious regulations of marriage impact upon civil law, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing (and increasingly sharp) conflicts in a growing number of nations. The conflicts concern competing “jurisdictional,” and “choice of law” issues involving competing “sovereign” communities.

The paper notes that loyalty to a religious community is similar to loyalty to a state sovereign, and that conflicts between church and state are in many ways inter-sovereign conflicts. Using comparative law, this article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Around the world today there is a wide variety of approaches to balancing the claims of and conflicts between church and state concerning the regulation of marriage, from purely secular (prohibiting religious celebration or any civil recognition of religious regulation), to primarily religious (giving full civil law effect only to marriages that have been celebrated according to religious regulations). These laws are reviewed.

Increasingly, also, there are sharp conflicts in western nations between civil and religious communities regarding same-sex marriage regulation across a broad range of issues impacting religious organizations, public employees, and private individuals. Some of those conflicts are illustrated and described. They effect not only religious organizations, but also private individuals and public employees.

This paper argues that the body of law known as “conflict of laws” (or “private international law”) that is designed and used to decide judicial conflicts concerning the assertion of jurisdiction and the choice of law application in legal disputes involving the interests of multiple sovereigns, provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage. Choice of law principles, especially, have a proven record of resolving inter-sovereign conflicts involving differing legal policies.