MARRIAGE AND RELIGIOUS LIBERTY: COMPARATIVE LAW PROBLEMS AND CONFLICT OF LAWS SOLUTIONS

Abstract

The purpose of this paper is to consider how the legal regulation of marriage impacts upon religious liberty, and vice versa, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing (and increasingly sharp) conflicts in a growing number of nations. The conflicts concern competing "jurisdictional" and "choice of law" issues involving competing "sovereign" communities. Using comparative law, this Article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Having shown the scope of the conflicts between religious and political communities regarding the regulation of marriage, this Article argues that the body of law known as "conflict of laws" (or "private international law") that is designed and used to decide judicial conflicts concerning the assertion of jurisdiction and the choice of law application in legal disputes involving the interests of multiple sovereigns, provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.