The Marriage Amendment: Unjustifiable from a Secular, Rational Basis

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By Phil Byrne


The Marriage Amendment is a major threat to a bedrock American constitutional principle – the separation of church and state. Our Founders did not permit any religion to have its own beliefs enforced by the coercive power of civil law.

Catholics do have a right under the First Amendment to express their views publicly on matters of public importance. They can speak to anyone who will listen, whether it is from a pulpit, using DVDs paid for by their wealthiest members, in letters to the editor, or in media ads paid for by $650 million from the investment income of the Archdiocese.

But religions, Catholic or otherwise, do not have the right to use the muscle of civil law to enforce their own religious beliefs. They cannot require “Caesar” to enforce their own version of “God’s” law.

We all agree that it is not permissible to seek the passage of a state constitutional amendment to: (i) require that no one eat meat on Friday; (ii) require that all females wear a headscarf in public; or (iii) require that no one eat pork.

We all agree that it is permissible to enact into civil law a prohibition against killing. So what is the difference? Why is one permissible and not the other?

The difference is this: There must be, for every civil law, an independent basis resting on secular facts, which justifies the existence of that law. Even if my motive in proposing or supporting a law is religious, I must advance a rational, secular basis for that law and justify its adoption on that basis. And, I must persuade people of many beliefs that the law makes sense. I cannot complain that others do not agree with my own religious beliefs or arguments. It is fairly easy to conclude that if civil society did not prevent people from killing each other, we would have no peace, no society at all. That is clearly a rational, secular basis for a law prohibiting killing, whether or not the Ten Commandments, the Koran, or another religious code, might also prohibit murder.

Today – in 2012 – the question is this: Is there any basis that would support adoption of the Marriage Amendment other than religious? If there is such a rationale, the case has not been made for it at this point.

For example, the local Catholic Archbishop submitted a letter to the Star Tribune, a secular newspaper (October 8, 2011). He said that he was not acting to enforce religious doctrine or principles in calling for the passage of the Marriage Amendment. However, he had previously written, in his own local religious newspaper, that the reasons supporting the Marriage Amendment were theological, biological/spiritual, and pastoral. Clearly, he was then, and still is, articulating religious arguments.

What is the secular evidence about the Marriage Amendment? The secular evidence today is that the greatest threat to marriage, and the well-being and security of children who are born of a marriage, is divorce. Yet there is no request by that Archbishop for a constitutional amendment to prevent divorce.

The secular evidence relating to GLBT marriages or partnerships is that their children do just as well, or even better than, those in broken, single-family, or other marriages. The determining quality is the love, commitment and parenting skills of their parents.

The Catholic Archbishop says that the reality he defends predates religions or governments. It is hard to know what his particular reality is, given the nature of human sexual and family relationships over the ages, ranging from polygamy, to concubinage, to polyandry, to making women the property of their husbands, and even to sexual slavery. Whatever his reality is, today he chooses not to make the secular case for his constitutional amendment to a secular state constitution.

The truth, and the secular case today, is that love and commitment by parents will help children the most. Not a constitutional amendment. Religions may speak to their own congregations, but the primacy of the individual conscience is the essence of the U.S. First Amendment. Because of the First Amendment, religions cannot impose their religious beliefs on others of differing beliefs, unless we all agree (by a majority) on a valid, secular and civil reason for that law. There is no such secular, civil reason for the Marriage Amendment.


Phil Byrne is a retired attorney, active in volunteering, particularly for those groups/activities that have a goal that would fit right in with Catholic Social Teachings, such as helping teach English to adult immigrant learners, and working on housing and the provision of furniture/household goods to those in need of it.


See also the previous PCV posts:
The Marriage Amendment
Addressing the Arguments Against Same-Sex Marriage Offered by the Catholic Bishops of Washington State
Homosexual Relationships: Another Look
Archbishop Nienstedt's Marriage Amendment Message to Priests: "The Stakes Could Not Be Higher"
What is “Marriage Itself”?