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Unpublished Paper
Family Law's Challenge to Religious Liberty
ExpressO (2012)
  • Raymond C. O'Brien, Professor, The Catholic University of America, Columbus School of Law
FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. By the 1980s businesses and states were enacting domestic partnership provisions or statutes, then eventually, reciprocal beneficiary or civil union status arrangements. These enactments challenged a worldview that held that marriage and its entitlements were unique and could not be simulated through any other status arrangements. Eventually, in 2003, same-sex marriage was enacted in Massachusetts as a result of significant Constitutional litigation at the federal and state levels. This was a further challenge to worldview advocates, especially those who adhere to religious texts and doctrines that define marriage as between one man and one woman. Concomitant with changes in divorce and marriage, states expanded their statutes to allow for adoption of children by single persons, nonmarital partners, both of the same and opposite sex, and by foster parents and older persons. One reason for the change was the expansion of Constitutional protections, but also because of the increasing number of children in dependent care, the parental rights of their parents having been terminated. These children needed permanent placements and expanding adoption possibilities would provide this. Likewise, there occurred scientific advances in assisted reproductive technology, permitting persons to become parents with or without a genetic connection to the child, either during lifetime or after death through posthumous conception. Thus, through expanding adoption rights and assisted reproductive technology, parentage could occur in ways other than through sexual intercourse. This was a further challenge to a worldview that espoused a belief that sexual intercourse should be reserved to marriage, and that this marital act should be the exclusive means by which parentage could come about. Underlying the changes occurring in divorce, marriage, adoption and parentage, is the cultural development of private-ordering. That is, because of multifaceted media expansion, pluralism and internationalism, and Constitutional decisions ratifying privacy, individualism, and the liberty interests of each person, citizens seek to exercise what they perceive to be their right to private-order their lives. This is a right that demands their neutrality when presented with the private-ordering of a neighbor’s life. Private-ordering by adult, educated, and motivated citizens is the underlying challenge to religious liberty because it challenges the historical, natural law, and religious premise upon which is based a worldview espousing universal and even divine values. Historically, whenever worldview proponents were challenged by state or federal laws, such as prohibitions of polygamy, American courts drew a sharp distinction between conduct and belief; neutral laws could restrain conduct, but not beliefs. Such a distinction provides little support to the religious worldview adherents; the First Amendment’s Free Exercise Clause offers no protection when religious beliefs coincide with civil conduct. Thus, when confronted by an increasingly private-ordering legislature, religious worldview adherents are seeking protection in accommodation statutes, isolating them from the applicability of neutral laws that prohibit discrimination in permitting adoptions, assisted reproductive technology, and services that are viewed as secular rather than religious. The controversy over federal mandated coverage of contraception is one illustration of the confrontation between secular enactments and religious beliefs. Accommodation of a worldview that often includes religious underpinnings cannot be achieved without addressing the cultural development of private-ordering. Furthermore, condemnation of existing practices by spokespersons for the worldview, such as politicians and prelates, will not suffice. Instead, adherents of a worldview that relies upon history, natural law and religious texts, must regenerate the message that made the worldview predominant. An educated and media-aware electorate will not respond well to fiat; rather, education and dialogue must occur. The task at hand is to educate, dialogue, and address the issue of private-ordering so as to respond to family law’s challenge to religious liberty.
  • religious liberty,
  • constitutional law,
  • accommodation statutes,
  • private-ordering,
  • same-sex marriage,
  • assisted reproductive technology,
  • parentage,
  • adoption,
  • no-fault divorce,
  • religion,
  • Free Exercise
Publication Date
April 12, 2012
Citation Information
Raymond C. O'Brien. "Family Law's Challenge to Religious Liberty" ExpressO (2012)
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