In the United States, there is perhaps no greater blending of Church and State than with marriage and divorce. New York’s recognition of same-sex marriage shines a light on a debate as old as the country.

It took the 16th century Protestant Reformation to reject marriage as a religious sacrament.  For  Martin Luther, marriage was “a worldly thing.”  In the 17th century, the English Parliament declared “marriage to be no sacrament.” It was to be performed by a justice of the peace, not by a minister. The Puritans brought secular marriage to America. Back in England the pendulum swung back to the religious right in 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but not of Quakers and Jews).

In New York, marriage is a hybrid. Domestic Relations Law §10 declares:

Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.

More than that, though, marriage is a “solemn” occasion.  Our constitutional guarantee of freedom of religious worship has been held to include the right to have a civil marriage solemnized by a clergyman or minister, a right codified in D.R.L. §11. The parties must declare their marriage to the clergyman, or civil magistrate, and at least one witness (unless you are a “Friend” or a Quaker, or your religion has some other solemnizing manner).

Religious ceremony, alone, is not enough. To be married, at least under civil law, there must be a license issued by a city or town clerk (§13). After the license is endorsed by the solemnizing authority, the city or town clerk issues  the certificate of marriage (§14-a).

Effective July 24, 2011, makes marriage available to persons of the same sex (D.R.L. §10-a).

D.R.L. §10-b, though, allows religious institutions to (continue to) discriminate against same-sex spouses and marriages:

1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity . . . shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. . . .

Moreover, nothing about the authorization of same-sex marriages . . .

2.  . . . shall limit or diminish the right . . . of any religious or denominational institution or organization . . . to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.

“Getting in” is not the only blending of Church and State. We are continually reminded that “getting out” presents mixed religious and civil issues.

Under Jewish law, a divorce can only be accomplished by the volitional act of the husband: the giving of a “get.”  Of recent note, on July 18, 2011, David and Judy Wax were chargedin a New Jersey federal court with kidnapping and assaulting Yisrael Briskman, an Israeli who had moved to Brooklyn, in an effort to compel him to give his wife a religious divorce.

Israel only solemnizes religious marriages. Indeed, on July 27, 2011, the Israeli parliament, the Knesset, voted down an attempt to allow civil marriage and divorce in Israel.

New York “deals” with the orthodox Jew by withholding its Judgment of divorce or annulment from any petitioning party to a marriage solemnized by a clergyman who fails to file a sworn statement that “to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant’s remarriage following the annulment or divorce,” unless such requirement is waived by the other spouse (Domestic Relations Law §253).

Thus, as a practical matter, section 253 only affects Jewish men. A Jewish wife does not have the power to give her husband a “get.”

The section is of little help for Catholics. Parties married by a Catholic priest who civilly divorce and then remarry, without the benefit of a religious annulment, are banned from receiving Communion. It was not until 1977 that the more serious American Catholic penalty of excommunication was lifted by the National Conference of Catholic Bishops. That more extreme punishment had been adopted in 1884. New York’s Domestic Relations Law §253 does not apply if the barriers cannot be removed solely by the voluntary act of the spouse (subd. 6).

Also of recent note, on July 25, the parliament of the 95% Roman Catholic island nation of Malta acted to legalize divorce. That law is due to take effect in October if, as expected, it is approved by Malta’s President. Currently, Maltese people have to travel abroad to obtain divorces. Malta is the only member of the European Union without divorce legislation.

Our secular society has determined to confer hundreds of benefits on married couples.  However, civil benefits should only be conferred upon parties who enter a civil contract; a civil union; a creature only of civil law. The requirements of that contract, and the penalties or consequences for its breach or dissolution should also be a matter only of civil law. As we expand beyond our Judeo-Christian traditions and decide that a particular sexuality is not a requirement of that secularly-favored civil union, it is time to reaffirm our respect for the separation of Church and State.

Using the term “marriage” to describe the civil union our secular society chooses to benefit may only embitter some. Whether a church chooses to confer a sacrament on any particular couple is a matter for that church. It is not for civil law to accept or be bound by religious institutions, nor to decide when a religious marriage is over. Religious marriages and civil unions may present overlapping interests. However, we need to focus our care and respect for both our religious traditions and our separate civil rights as we progress.