Lynn Wardle (BYU) has posted Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, on SSRN. The abstract follows.
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 conflicts in a growing number of nations. 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” provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.
This paper focuses on two communities that claim sovereignty over individuals: the State and religion. Conflicts between religions and states concerning their respective regulatory policies may create internal cognitive dissonance for religious communities and for states. Thus, there would seem to be internal harmony incentives to find a solution to avoid disputes. However, these incentives may be offset, neutralized, or overcome if there are communities within the state that wish to harm or reduce the influence of the religious community