As a Utah resident, the recent controversy within the Mormon Church over California's Proposition 8, which would ban gay marriage, has brought home to me once again the confusion we as a nation have on this issue.  Recognizing that religion is a religous rite, should we limit it to "one man and one woman"?  Recognizing that sdoing so is discrimnatory, should we throw open marriage to everyone?

The problem is the traditional cultural link between law and religion— and the failure of our language to distinguish between them. Marriage is on the one hand a “Christian” sacrament. I put “Christian” in quotes because Old Testament marriage was polygamous, and there’s little mention of it at all in the New Testament. Paul taught that it was better to remain celibate, which was one cause of martyrdom of Christians in the Roman world: they defied the Roman law requiring people of breeding age to marry. The concept of one man-one woman comes from Roman law, written into Christianity (like so many other un-Christ-like habits, including military service) by the Emperor Constantine.

Freedom of religion says that a church has the right to determine who can and can’t receive its sacraments. Congress, for example, cannot pass a law forcing the Catholic Church to accept for communion anyone it doesn’t care to.

On the other hand, marriage is also a matter of common law, a contract between two people who intend to live their lives together. The law should properly prohibit discrimination in this regard.

However, we use the same word for both the sacrament and the contract, when in fact they are different— and properly subject to much different treatment under the law.  The Constitution requires separation of Church ad State.  Until we distinguish between the religious sacrament of marriage, which the State has no place regulating or even recognizing, and the social contract of marriage, which the State has every right to regulate, this issue will never be resolved.