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Last year, two well-known Catholics from New York got into a public argument over the meaning of marriage. The dispute started when Mayor Rudolph Giuliani proposed that the New York City Council pass new "domestic partnership" legislation that would effectively make unmarried cohabiting couples, both heterosexual and homosexual, the legal equal of married couples in a wide range of matters, from housing to death benefits to city contracts. The Roman Catholic archbishop of New York, John Cardinal O'Connor, objected, saying: "Marriage matters supremely to every person and every institution in our society. It is imperative, in my judgment, that no law be passed contrary to natural moral law and Western tradition by virtually legislating that marriage does not matter."

In reply, the mayor begged to differ: "You know, we have a division of church and state in the United States, and it's a healthy one. We're all here because people left other places because someone wanted to enforce their religious viewpoint as the view of the state." Judging from public and political reaction, the mayor won the debate handily. The domestic-partnership proposal is now law.

But this exchange deserves a moment of attention, for Mayor Giuliani made a remarkable assertion. The goal of maintaining a privileged legal status for marriage, the mayor tells us, is essentially a sectarian religious objective. It would be similar to insisting, say, that all public-school students wear yarmulkes, or that all elected officials publicly affirm the Nicene Creed. Obviously, the potential abuse that stems from state-mandated religious practice is precisely why the Founders disestablished religion in the first place, instituting the separation of church and state. Here in America, the mayor proudly reminds us, we simply don't permit people to use the state to "enforce" their "religious viewpoint" on their fellow citizens.

What should we make of the mayor's argument? On the one hand, scholars tell us that marriage is a universal human institution. It is often called a "natural" institution, since marriage in all societies meets and guides basic human needs for sexual expression, reproduction, and intimacy. Marriage is a multipurpose institution with important and densely connected economic, communal, and legal dimensions.

Across time and cultures, human societies have not only viewed the married couple as a primary cell of society and an essential guarantor of child well-being; societies have also gone to some lengths to develop customs and laws that recognize and protect marriage as a social institution. In the West, certainly with Roman law, and especially after the Protestant Reformation, civil law everywhere has independently supported marriage as a fundamental social good. In the U.S., separation of church and state not withstanding, our courts have consistently acknowledged a vital state interest in protecting the institution of marriage.

To the best of my knowledge, no recognized modern scholar—no sociologist, historian, anthropologist, philosopher, or theologian—has ever suggested that marriage as an institution can or ought to be viewed primarily as a matter of sectarian religious practice. Mayor Giuliani is clearly wrong, then, to suggest that the traditional supports for marriage reflected in U.S. civil law constitute illegitimate actions by the state to impose a particular religion upon society.

Yet, on the other hand, the mayor's comments raise a foundational question. To the degree that the mayor is implying that our view of marriage is ultimately a religious matter, he may be more correct than he knows, or correct in a way that I doubt he intends.

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August 9 1999, Vol. 43, No. 9