…If the only thing mandating a civil marriage is a couple’s religious beliefs, then there is a serious Constitutional problem on both the 1st and 14th amendments.
This is more than just heter biah…, but even financial.
Let’s take the [following] case – an elderly couple wants to get married, but doesn’t want a civil marriage, because one would lose social security. Now, let’s look at 2 couples – Abe and Sally who aren’t religious, and Avraham and Sarah who are.
Abe and Sally don’t get married, but live together, sleep together, introduce themselves as husband and wife (even if not legally), and act as husband and wife in all aspects other than the law. The Social Security Administration would not say – “Hey, you guys are acting like husband and wife and seem to be cheating social security, we are going to make you get married.” They would say, “You didn’t get married, you’re not married – regardless of how you see yourselves.”
Now, Avraham and Sarah – who are frum – they want to do the same thing as Abe and Sally, but their religion tells them that they want this ritual called kiddushin and nissuin. Now, the state is going to say “Because you did this religious act, we are going to force you to get married and take away your social security.”
THAT’S A PROBLEM! If the only distinction is religion (which it clearly is here), then there is a Constitutional problem. We, as leaders of a religious community, should be standing up for the rights of religious people and that they should have the same rights as non-religious people.
Vis-a-vis social security, taxes, insurance or anything – Avraham and Sarah need to be treated the same as Abe and Sally. That’s equal protection under the law.
Rabbi Jason Herman, email message (26 June 2014) [permission granted to reproduce]