1. Introduction
Modern constitutionalism has been marked by increasing reliance on courts to settle some of the state’s most divisive questions. On the issue of religion, courts have generally sought to temper religious influence and prevent the entrenchment of theocratic governance (Hirschl, Reference Hirschl2010). However, depending on the political and social dynamics involved, scholars have observed that the judicialization of religious disputes may deepen rather than harmonize religious differences (Schonthal et al., Reference Schonthal, Moustafa, Nelson and Shankar2016). In religiously divided societies, there is often a deep division over the collective identity of the state along secular and religious lines. Religious issues thus become both ideological and political, adding complexity to judicial interventions. This article explores how turning to the courts can complicate, rather than foster, social cohesion, with interfaith marriage in Indonesia as a case study.
Indonesia is a Muslim-majority country that is home to six officially recognized religions and hundreds of traditional belief systems.Footnote 1 Interfaith marriage has long been a source of dispute in Indonesian law and politics. The struggle can particularly be traced back to the time when the state sought to draft its first national marriage law to unify the diverse legal systems governing marriage. The later debates over interfaith marriage reflected broader ideological conflicts surrounding marriage reform between secularists and Islamists that had emerged in the early years of independence in the 1950s (Martyn, Reference Martyn2004, pp. 123–45). The proposed marriage bill of 1973 specified that the validity of marriage depends on state registration, which signals its secular character. The bill explicitly permitted inter-religious marriages, affirming that religious differences are not barriers to marriage. These arrangements received a significant backlash from Muslim conservatives who were concerned about the erosion of Islamic values and Christianization (Katz and Katz, Reference Katz and Katz1975). After major protests and heated parliamentary debates, a compromise was reached with the passage of Law No. 1 of 1974 on Marriage. The final law removed the provision for interfaith marriages and its Article 2(1) states that marriage is valid if performed according to the religious laws and beliefs of the parties, implying that the validity of a marriage hinges on compliance with religious dictates and customs. The legality of interfaith marriage was deliberately left ambiguous, ostensibly with the hope that it will be resolved through future negotiations. This implies that the government denied Muslim conservatives’ aspirations for legislation against interfaith marriage, while simultaneously upholding the religious significance of marriage, which provided Muslims with a sense of control over their own affairs under Islamic law (Bowen, Reference Bowen2003, p. 178; Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 114).
This pragmatism results in competing interpretations, particularly between conservative Muslim groups who view the law as prohibiting interfaith marriages (based on their interpretation of Islamic laws) and those who perceive that the law is open to different religious interpretations that could potentially accommodate such marriages. While dominant, mainstream religious interpretations may prohibit the practice, there is great plurality in intra-religious doctrine and praxis, and thus, in reality, there are religious preachers across various religions and beliefs in Indonesia who adopt a more permissive view of interfaith marriage.
Indonesia’s vague compromise approach to interfaith marriages reflects what Asli Bâli and Hanna Lerner describe as an incrementalist strategy, that is, a mode of deferral and ambiguity employed to address the most contentious questions in religiously divided societies (Bâli and Lerner, Reference Bâli, Lerner, Landau and Lerner2019). This approach is usually adopted by constitutional drafters to facilitate progressive change and future negotiations on matters concerning religious law and identity. While Bâli and Lerner’s analysis focuses on constitutional design, the Indonesian case demonstrates that the logic of incrementalism is not confined to constitution-making. The issue of interfaith marriage touches upon foundational, yet deeply contested, normative commitments to religious freedom, personal liberty, and the role of religion in public life. The state’s reluctance to adopt a clear legal stance on interfaith marriage can be seen as an extension of the incrementalist logic into the domain of ordinary legislation to manage these foundational tensions. The incrementalist approach diverges from the liberal constitutional model, which tends to adopt a binary stance favouring secularism and legal uniformity. It recognizes the limits of the liberal paradigm, which can amplify polarization and constrain channels for conflict mitigation in polities facing deep religious rifts (Bâli and Lerner, Reference Bâli, Lerner, Landau and Lerner2019, p. 272; Bâli and Lerner, Reference Bâli, Lerner, Hirschl and Roznai2024, pp. 248–9).
The incrementalist strategies may empower certain institutions, especially apex courts, to assume greater interpretive roles that drive constitutional evolution (Bâli and Lerner, Reference Bâli, Lerner, Landau and Lerner2019, p. 272). This paper hopes to contribute to the literature on how courts navigate incrementalism in practice. In contexts where ordinary legislation adopts incrementalist strategies, as manifest in the avoidance of clear resolution on interfaith marriage in Indonesia, courts are often inevitably drawn into a central role to address the lack of legal clarity. Apex courts possess the institutional authority to interpret the constitution, which uniquely situates them to resolve legal ambiguities and constitutional disputes. This paper focuses on the judicial role within such an incrementalist framework. Specifically, it examines how courts respond to vague legal norms amid contested constitutional interpretations of highly sensitive religious issues. Through an analysis of interfaith marriage jurisprudence by Indonesia’s Constitutional Court, the paper exposes the challenges and risks of judicial engagement in this fragile context. It argues that courts ought to navigate legal ambiguity in a way that preserves space for democratic negotiation, rather than imposing definitive interpretations that risk entrenching dominant values at the expense of rights and pluralism.
The apparent flexibility of the religious basis for marriage in Article 2(1) of the Marriage Law has led to inconsistent applications that can either permit or forbid interfaith marriage. This has prompted a constitutional review that challenges Article 2(1) on the grounds of personal liberty and religious freedom to engage in interfaith marriages. The case was brought twice before the Indonesian Constitutional Court, with both rejected in 2015 and 2023.Footnote 2 Much of the literature has focused on how these rulings perpetuate legal ambiguity and how they violate civil liberties, such as the right to marry, the right to religious freedom, and the right to equality and non-discrimination (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019; Rofii, Reference Rofii2021; Ibrahim, Reference Ibrahim2022; Janti, Reference Janti2023). Yet scholarship has not paid sufficient attention to how the court interprets legal ambiguity to entrench a rigid, religiously conservative interpretation that constrains democratic contestation and pluralist accommodation. This paper investigates the role of the court in managing the vague legislative compromises that underpin the incrementalist logic of the Marriage Law and its broader legal and political ramifications. It particularly highlights a recent and still largely unexplored 2023 decision, which further affirms the religious dimension of marriage and marks a deeper departure from incrementalist restraint.
The remainder of this article is structured as follows. Section 2 provides a contextual background on interfaith marriage in Indonesia by outlining the basic constitutional features of the Indonesian Constitution that underpin the state’s incrementalist framework, the legal framework governing marriage in Indonesia, and the legal and political debates that produced the vague compromise on interfaith marriage under the Marriage Law. Section 3 briefly discusses how legal ambiguity was contested and negotiated by different state and non-state actors after the Marriage Law, resulting in legal uncertainty over the registration of interfaith marriages. Section 4 analyses the Constitutional Court judgments in 2015 and 2023 on interfaith marriages, which increasingly relied on the religious dimensions of marriage and provided a basis for justifying the prohibition of such unions. Section 5 explores the political and social ramifications of Constitutional Court decisions, showing how they were used to justify the recent ban on interfaith marriage registration and how they have heightened ideological and religious tensions, which in turn may have posed additional challenges for informal practices accommodating interfaith unions. Finally, Section 6 concludes that the legal-political approach to interfaith marriage in Indonesia prioritizes social cohesion over legal certainty in navigating religious divisions, and that the judiciary may solidify conservative religious views, which ignore rights and pluralist accommodation, and impede future democratic negotiations.
2. Contextualizing interfaith marriage in Indonesia
To understand the context of the interfaith marriage controversy in Indonesia, it is important to consider some of the historical background and fundamental aspects of the Indonesian Constitution. Indonesia gained its independence in 1945, following centuries of Dutch colonial rule and a brief Japanese occupation during World War II. Indonesia’s history of constitution-making has long been defined by ideological divisions between the secular-nationalist faction, which sought a clear separation between religion and the state, and Islamists, who called for an Islamic state and greater recognition of Islam. Thus, the contention over interfaith marriage in Indonesia cannot be separated from the broader discourse on the relationship between the state and religion, especially Islam.
The ambiguity in Indonesian interfaith marriage regulation reflects the broader constitutional compromise on the role of religion, which was itself left intentionally ambiguous. The Preamble and Article 29 of the 1945 Indonesian Constitution enshrine the “belief in one God” as the first of the five principles of the foundational state philosophy, Pancasila.Footnote 3 This implies a symbolic recognition of religious values without aligning the state with any particular faith. Pancasila’s broad formulation can be understood as part of an incrementalist constitutional strategy to moderate opposing views and interests during the constitution-making process (Shah, Reference Shah2017, pp. 29–39; Bâli and Lerner, Reference Bâli, Lerner, Landau and Lerner2019, p. 271).
Initially, the Investigating Body tasked with drafting the constitution proposed an alternative formulation as a compromise, which read: “belief in one God, with the obligation to carry out Islamic laws (shari’a) for its adherents.” The phrase that expresses the Muslims’ obligation to follow shari’a is known as the “seven words.” This was considered a middle position, as it granted Muslims the right to apply Islamic law without necessarily establishing an Islamic state (Hosen, Reference Hosen2007, p. 62). However, the “seven words” remained highly contested, with opposition raised concerns about the preferential treatment of a particular religion within the constitution, as well as religious coercion and the forced implementation of Islamic principles (Shah, Reference Shah2017, p. 38). One day after declaring independence, the “seven words” was removed from the final 1945 Constitution due to the fear of disintegration, particularly the splitting of non-Muslims from a newly independent Indonesia. While this removal angered Muslim groups, the negotiation included assurances that they could pursue their goals at a better time in the future (Elson, Reference Elson2009, p. 126). Many Muslim leaders also eventually accepted Pancasila as a “workable compromise” that remains compatible with Islam and still provides them with the opportunity to assert their broader claims (Elson, Reference Elson2009, p. 129).
Following the fall of Soeharto’s authoritarian rule in 1998, the power struggle on the role of Islam re-emerged during the constitutional reform. At this time, both nationalists and Islamists were determined to maintain the Preamble, which signified Pancasila’s enduring status as the state ideology. While Islamic political parties proposed revising Article 29 to mandate the implementation of shari’a among Muslims, this was ultimately unsuccessful. The post-Soeharto constitutional reforms thus reaffirm Indonesia’s preference for incremental, ambiguous responses to disputes over state–religion relations. In this regard, the drive to achieve unity and cohesion seems to prevail over other considerations, including legal certainty.
The “belief in one God” principle has continued to serve as a middle ground that positions Indonesia as neither a secular nor an Islamic state; rather, it is a “Pancasila state with religious underpinnings” (Shah, Reference Shah2017, p. 69), in which “religious communities can have an impact on public life” (Hosen, Reference Hosen2007, p. 215). Pancasila allows for different claims and interpretations on the degree to which religion ought to influence state affairs. As I will discuss below, this vague compromise in constitutional arrangements has contributed to the uncertain legality of interfaith marriage in Indonesia.
2.1. The legal framework for marriage in Indonesia
Before turning to the history of legal and political debates on interfaith marriage in Indonesia, it is necessary to first outline legal structure and marriage procedure in the country that has made such marriages institutionally difficult. The legal uncertainties and hurdles to interfaith marriages are certainly not unique to Indonesia. In India, the anti-conversion laws passed in many states have made it more difficult for interfaith couples to marry, especially between Hindus and Muslims (Khan, Reference Khan2023). The practice of interfaith marriage can also be challenging despite being possible through secular or civil marriage procedures (Dutta, Reference Dutta2021). In Malaysia, serious legal obstacles to religious conversion for Muslims have prevented them from marrying non-Muslims (Mohamad et al., Reference Mohamad, Aziz, Sim, Jones, Chee and Mohamad2009). Moreover, although Muslim men are legally permitted to marry Christian or Jewish women, the criteria are structured in ways that are nearly impossible to meet.Footnote 4 Jurisdictions divided along religious lines appear to adopt varying strategies to hinder interfaith marriage amid majoritarian sentiments. The Indonesian context presents an equally complex legal landscape, with the law on interfaith marriage intentionally kept ambiguous to reconcile Muslim majoritarian pressures on the one hand and the need for flexibility on the other.
Article 2(1) of the Marriage Law, which requires that marriages be performed according to the parties’ religion, underscores the strongly religious character of marriage in Indonesia. The implementing regulation of this law, Government Regulation No. 9 of 1975, further sets out the procedure, which involves two distinct steps: first, the performance of the religious marriage in accordance with the religious laws of the parties; and second, the registration of the marriage with the state.Footnote 5 The 1975 Government Regulation also separates marriage registration for Muslims and non-Muslims, with Muslims registering at the Office of Religious Affairs and non-Muslims at the Civil Registry.Footnote 6 This separation in the registration maintained the institutional arrangement introduced in 1946, when responsibility for Muslim marriage registration was assigned to the newly formed Ministry of Religion, distinct from the Civil Registry under the Ministry of Home Affairs.Footnote 7 Nonetheless, no purely civil marriage can take place in the country, as registration in the Civil Registry must also be preceded by a religious marriage.
These legal arrangements complicate marriage registration for interfaith couples. The requirement to perform a religious marriage before registration has been a major point of contestation. Interfaith marriages between a Muslim and a non-Muslim are often registered with the Civil Registry, as the Office of Religious Affairs applies a strict interpretation of Islam that completely prohibits such unions. Yet at the same time, civil registries differ in their interpretation of whether the Marriage Law permits interfaith marriages. As a result, state registration is not guaranteed, even when a religious authority agrees to officiate the marriage. In practice, interfaith couples requesting marriage registration either have their marriage officiated first by religious authorities or inform the Civil Registry in advance of their plans to marry. In both cases, when their request for registration is denied, the couples usually go to the district court to challenge the registry’s decision and seek court approval for registration (Mursalin, Reference Mursalin2023, pp. 132–3). Judges at district courts may also have differing interpretations of whether interfaith marriage is permissible under the Marriage Law, making the process unpredictable.
In 2006, with the passage of Law No. 23 of 2006 on Population Administration, the legislature subtly institutionalized the possibility of registering interfaith marriages in civil registries through the courts. Article 35 of the Law permits the registration of court-decreed marriages. However, the precise interpretation of this provision was clarified only in the Elucidation, which refers to such court-decreed marriages as those conducted between “persons of different religious communities.” Perhaps because of this subtle approach, the law could avoid Muslim objections. In addition, the procedural character of the law may contribute to its passage going largely unnoticed and minimally discussed by the public (Bedner and Huis, Reference Bedner and van Huis2010, p. 181). As scholars have noted, this legislation dealt with interfaith marriage in a vague manner, which highlights the dilemma of providing a clear response to this issue (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 126; Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, p. 213). The law reflects the vague compromise within the legal system that continued to facilitate interfaith marriages, while also, as Cammack puts it, “preserving the pretense that marriage between Muslims and non-Muslims is not allowed” (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 132). The whole formal registration process thus presents additional challenges for interfaith couples, due to its complexity and the uncertainty of the outcome.
2.2. Early debates and the making of the Marriage Law
The legal ambiguity surrounding interfaith marriage in Indonesia can be traced back to the political and ideological tensions that have existed since the early years following the country’s independence in 1945, and subsequently shaped the drafting and enactment of the Marriage Law in 1974.
One notable controversy emerged in the mid-1950s over the implementation of the 1896 Regulation on Mixed Marriages (Regeling op de Gemengde Huwelijken, RGH), a Dutch colonial law that remained in effect and allowed interfaith marriages. In 1955, the Supreme Court affirmed the decision of the Jakarta District Court, which had applied the RGH to grant permission for a Christian man and a Muslim woman to marry, after the Office of Religious Affairs denied their request on the grounds that such a union contravened Islamic law.Footnote 8 The couple had their marriage officiated by a Protestant pastor and registered it with the Civil Registry. The Supreme Court upheld the lower court’s ruling and affirmed that statutory law permitting interfaith marriage takes precedence over religious law that may prohibit it.Footnote 9 Accordingly, interfaith marriages cannot be invalidated solely on the basis of religious doctrine, given that the RGH explicitly allows such unions. The court also recognized the diversity of religion and ethnicity in Indonesia, which necessitates this rule.
This decision received a significant backlash from Muslim groups. Approximately 5000 people took part in the demonstration in front of a mosque in Jakarta to oppose the decision and produced a resolution demanding that the government invalidate the marriage (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 108). Despite the Muslim opposition, the courts in this period had generally authorized interfaith unions under the RGH when it is disputed (Butt, Reference Butt and Lindsey2008, p. 276).
The Dutch colonial regime maintained a complex system of marriage laws, which was generally structured by ethnicity and religion. These laws historically applied only to a small segment of the population, primarily Europeans, and were gradually extended to include Chinese and Christian communities. Therefore, the majority of the indigenous non-Christian population, particularly Muslims, were not subject to these regulations (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 105). This may partly explain why post-independence attempts to rely on the Dutch colonial framework to facilitate interfaith marriages became controversial, as the colonial legal system did not provide a civil marriage pathway for Muslims to engage in such unions, and these practices were neither institutionalized nor socially normalized. While independence might be viewed as a momentum to secularize the institution of marriage, many Indonesian Muslims continue to hold a restrictive interpretation of Islam that regards interfaith marriage as forbidden (Butt, Reference Butt and Lindsey2008, p. 276; Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 129).
This societal disagreement between Islamist and secularist factions continues to shape debates over different marriage law proposals to replace the Dutch rule between the 1950s and the 1960s (Gautama and Hornick, Reference Gautama and Hornick1983, pp. 60–4). The issue of interfaith marriage is just one of several contested issues, such as polygamy, divorce, and the minimum age for marriage, which raises fundamental questions about state–religion relations in the regulation of marriage. Secularists, such as women’s groups, Christians, and liberal Muslims were among those who advocated a unified and secular marriage law. Their interests include women’s rights, national unity, and limiting Islamic control (Katz and Katz, Reference Katz and Katz1975, pp. 656–8). In contrast, Muslim groups worried that legal unification would undermine the authority of Islam to govern Muslim affairs and that it was intended to convert Muslims into Christians (Katz and Katz, Reference Katz and Katz1975, p. 657; Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 110).
These competing concerns were evident in debates over the “secular” 1973 Marriage Bill. The interfaith marriage permitted by the bill was perhaps the most contentious issue to resolve because it tampered with the fundamental question of what makes a marriage valid, which is strongly religious in character for many Muslims (Bowen, Reference Bowen2003, pp. 180–2). The bill discussion was considered “one of the most heated debates in Indonesian parliamentary history” with a large-scale public audience (Butt, Reference Butt and Lindsey2008, pp. 266–7). In one of the hearings, Muslim students occupied the parliament—they entered the building, chanted, jumped onto desks, and one of them seized the speaker’s podium to give a lecture (Bowen, Reference Bowen2003, p. 180). This scene was unprecedented, especially under Soeharto’s authoritarian regime, where the parliament usually acted as a rubber-stamp for the government (Butt, Reference Butt and Lindsey2008, p. 266). As protests intensified, the government recognized that amendments to the bill were necessary to avoid severe social and political turmoil (Katz and Katz, Reference Katz and Katz1975, p. 663). As a result, a compromise was reached with the passage of the 1974 Marriage Law, which removed the provision allowing interfaith marriage and made the validity of marriage conditional upon compliance with the religious laws and beliefs of the parties under Article 2(1).
The political and social underpinnings of the law provide insights into the obstacles to reaching a consensus. The deliberate effort to obscure the legality of interfaith marriage suggests that the incrementalist approach adopted by Pancasila at the constitutional level has trickled down to the statutory level. One study described the Indonesian approach to marriage regulation as “law without law,” indicating its greater emphasis on “peace and compromise” rather than legal certainty and rights (Katz and Katz, Reference Katz and Katz1975, p. 667). In this regard, the religious basis of marriage may be perceived as an ideal middle path through which both parties can assert their competing claims and negotiate in the future.
3. Legal ambiguity and post-1974 contestation over interfaith marriage
During the early years after the passage of the 1974 Marriage Law, the religious basis of marriage did not necessarily preclude the registration of interfaith marriages in civil registries. Scholarly articles from 1978 and 1988 observed that such registrations remained possible (Katz and Katz, Reference Katz and Katz1978, p. 315; Pompe, Reference Pompe1988, p. 271). This may be because the RGH was regarded as still applicable to facilitate interfaith marriages, as the new Marriage Law did not specifically address the matter. However, the ambiguity of the law gave rise to legal uncertainties, as civil registries in some areas became less willing to register such unions (Pompe, Reference Pompe1988, pp. 271–2).
The debates over interfaith marriage gradually shifted to whether the Marriage Law permits the practice. The flexibility of the law has enabled a wide range of interpretations and reactionary changes in laws and regulations that may either support or challenge interfaith unions. The negotiations within the incrementalist framework were far from orderly and predictable. Instead, they were marked by power imbalances and contests among different state and non-state actors. This approach led to uncertainty in the formal legal mechanisms that hindered interfaith registration and resulted in the prevalence of informal practices or customs.
3.1. Early judicial intervention: Supreme Court and the Andi Vony case
The Supreme Court has particularly served as a site of contestation over differing interpretations of the law. In 1989, a landmark Supreme Court decision, famously known as the Andi Vony case, ruled in favour of interfaith marriage registration between a Muslim woman, Andi Vony, and a Protestant man, Adrianus Petrus.Footnote 10 The couple filed a lawsuit against the Office of Religious Affairs and the Civil Registry for declining to register their union, and contended that there was no legal basis to reject it. Although they were lost in the first instance, the Supreme Court ruled on appeal that the couple could conclude their union as a non-Muslim marriage. The appeal took almost three years to decide. The court held that religious differences were not a barrier to marriage. According to the court, there are no clauses that prohibit interfaith marriage under the Marriage Law, and that the absence of such a prohibition was consistent with Article 27 of the Constitution on equality before the law and Article 29 on religious freedom.Footnote 11 The court went on to interpret that Article 27 guaranteed the right of citizens to marry, regardless of religious differences.Footnote 12 Besides relying on the legal vacuum within the Marriage Law, the court emphasized the pluralistic and heterogeneous nature of Indonesian society, in which interfaith marriages have been a common occurrence, and therefore the law must respond to these social realities and needs.Footnote 13
At the same time, the court appears deliberate in maintaining the sanctity of Islam. It upheld that the religious basis of marriage under the new Marriage Law rendered the Dutch colonial rule inapplicable.Footnote 14 The religious dimension under the law was considered a manifestation of Pancasila, which no longer views marriage as a purely civil institution, but is now deeply intertwined with religion. The court considered that since the woman had sought to pursue a civil marriage, she chose to abandon her Islamic faith, which enabled her and her partner to register their marriage as a non-Muslim union in the Civil Registry.Footnote 15 Thus, the court implied respect for the dominant Islamic view that prohibits interfaith unions, while recognizing the need for civil institutions to accommodate the practice.
The scholarly interpretation of this case has been divided, with one being highly critical and the other more supportive. Critics highlighted the considerable uncertainty and inconsistency of the decision to deal with the right of interfaith couple to marry (Pompe, Reference Pompe1991; Butt, Reference Butt and Lindsey2008). Indeed, the decision did not clarify whether the woman’s abandonment of her religion meant that she became a Protestant or was left without religious affiliation. This raises questions about women’s equality and religious freedom (Pompe, Reference Pompe1991; Butt, Reference Butt and Lindsey2008). The alternative perspective places greater value on human rights and constitutional considerations in this case, implying that the decision did not entail apostasy, but rather the woman’s “voluntary acceptance” to set aside Islamic law in order to pursue a civil marriage (Lukito, Reference Lukito, Jones, Chee and Mohamad2009).
The difference of opinion between scholars on the Andi Vony case can be explained by the fact that the court aimed for a middle-ground solution, which inevitably prompted conflicting interpretations of the decision. The court in Andi Vony followed incrementalist logic underpinning the Indonesian approach to interfaith marriage. Thus, the decision does not fit neatly into standard legal reasoning based on liberal constitutional values, which tend to favour either-or outcomes. The judgment lacked coherence and confused observers, most likely because it sought to accommodate the opposing factions. Specifically, the court affirmed the religious foundation of marriage to mitigate potential backlash from Muslim groups, while simultaneously enabling civil marriages to accommodate the individual rights and realities of a pluralistic society. While Pancasila is unable to provide a conclusive answer as to whether interfaith marriage is permissible, its vague compromises on religion have proven useful for the court in balancing competing interests in this case.
3.2. Political backlash and legal adaptations
The Supreme Court’s attempt to reconcile opposing demands in the Andi Vony case led to unpredictable outcomes that seemed to diverge from its intentions. In April 1989, three months after the case was delivered, the government issued a directive stipulating that only religious marriages were legally recognized, and that marriages must be performed by religious authorities prior to registration in civil registries (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 120). This regulation reinforced the religious character of marriages in the country. While interfaith couples could still register their marriages as non-Muslims without conversion in civil registries, they are bound by the stringent obligation of a religious ceremony, which is subject to uncertain approval.
Indeed, the government’s stance had previously hardened through a series of decrees issued between 1983 and 1989, which explicitly prevented both civil registries from formalizing marriages involving Muslims and religious affairs offices from acknowledging unions involving non-Muslims (Butt, Reference Butt and Lindsey2008, p. 278; Cammack, Reference Cammack, Jones, Chee and Mohamad2009, pp. 119–21). This hardening attitude appeared to run parallel with growing pressure from Islamic factions, rising religious tensions, and a shift in Soeharto’s stance towards a more accommodating position on Islamist demands for his political gain (Bowen, Reference Bowen2003, pp. 242–3; Butt, Reference Butt and Lindsey2008, pp. 280–1; Cholil, Reference Cholil, Jones, Chee and Mohamad2009). In the mid-1990s, the registration for interfaith marriage was reportedly highly challenging (Bowen, Reference Bowen2003, p. 240).
Islamist factions seem to have utilized the religious dimension of marriage to advance their demands and insert their interpretation of Islamic law, which prohibits such marriages. While some Islamic interpretations permit interfaith marriage, particularly between a Muslim man and a Kitabiyah (People of the Book) woman, such as a Jew or a Christian, the prevailing interpretation among Indonesian Muslim groups is that such unions should be avoided and are therefore prohibited (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 204–5). The three largest Muslim organizations in Indonesia—the Majelis Ulama Indonesia (MUI) or Indonesian Ulama Council, Nahdlatul Ulama (NU), and Muhammadiyah—have issued religious decrees that prohibit Muslim and non-Muslim marriages (Cholil, Reference Cholil, Jones, Chee and Mohamad2009). In 1991, President Soeharto issued a Presidential Instruction to promulgate the Compilation of Islamic Law, which prohibits interfaith marriages.Footnote 16 The Compilation was developed with the help of various Indonesian Islamic scholars to unify differing interpretations of Islamic law within the Islamic courts. The Compilation has been generally recognized as an authoritative source and is treated as if it were binding by both Islamic courts and administrative authorities dealing with Islamic legal issues (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 122; Lindsey, Reference Lindsey2012, p. 69). It also helped shape the broader public view of interfaith marriage as prohibited in Islam (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 204–5).
Despite ongoing legal uncertainty and confusion, the practice of interfaith marriages persisted. The interfaith couples resorted to different strategies to circumvent the law, such as pretending to share the same religion for registration purposes; religious conversion of one of the parties, and then reconversion to one’s initial faith upon registration; and marrying abroad and then registering in Indonesia (Butt, Reference Butt and Lindsey2008, p. 281).
In the early 2000s, the democratic transition set the stage for the emergence of inter-religious marriage services, offering a unique way for interfaith couples to meet the expectations of religious marriage and legitimize their union. This service was typically offered by progressive organizations, which facilitated religious ceremonies for interfaith couples and coordinated with civil registries to ensure the marriages were registered (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, pp. 123–4). Although pressure from Islamic groups has forced some of these institutions to terminate their services, similar institutions have emerged and endured (Cammack, Reference Cammack, Jones, Chee and Mohamad2009, p. 124; Nurcholis, Reference Nurcholis2014, p. 169).
The court-decreed mechanism under the 2006 Population Administration Law has also been quite useful as a basis for lower courts to authorize the registration of interfaith marriages. Recent studies suggest that district courts have generally granted an interfaith registration request based on the Constitution, ratified international human rights law, and a precedent set by the Andi Vony case (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 213–4; Mursalin, Reference Mursalin2023, pp. 134–6). These more favourable judgments commonly viewed religious difference as not a barrier to marriage, and interpreted the Marriage Law as not posing an obstacle to interfaith marriages, given its silence on the issue. Yet, the possibility of rejection remains, especially if the court adopts a restrictive interpretation of the Marriage Law by relying on religious doctrines that prohibit the union (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 213–4; Nasir, Reference Nasir2020, p. 136; Rofii, Reference Rofii2021, p. 218). For instance, in 2017, a civil court in Blora rejected the request for registration of marriage between a Muslim woman and a Protestant man based on the Quran, the Compilation of Islamic Law, and testimony from a Protestant cleric.Footnote 17
In summary, there has been ongoing contestation and negotiation over interfaith marriage in Indonesia since the enactment of the Marriage Law. These interactions generally sustained a level of uncertainty that prevents rigid or dramatic change, as competing actors, including the Supreme Court, district courts, bureaucratic apparatus, interfaith couples, religious groups, and civil society, were continually forced to negotiate and compromise. However, the analysis below explores how the involvement of the Constitutional Court may shift the balance in ways that further entrench the religious dimension of marriage, which paved the way for an explicit prohibition of interfaith unions and hindered future deliberation and legal reform.
4. The Constitutional Court and the judicial politics of ambiguity
Indonesia’s transition to constitutional democracy introduced judicial review by the Constitutional Court as a new legal mechanism for settling disagreements on interfaith marriage. As the final interpreter of the Constitution, the decisions of the Constitutional Court carry significant weight and legitimacy. The court’s perceived legitimacy as a supposedly neutral arbiter of constitutional questions eventually prompted individuals to seek judicial review regarding interfaith marriage. Yet, the rulings of the Constitutional Court concerning interfaith marriage have not preserved openness and adaptability, but rather reinforced the dominance of religious doctrine and legitimized conservative interpretations. In this case, the court deployed ambiguity to stabilize political tensions and accommodate Muslim demands in ways that clearly undermine citizens’ rights and limit the pluralist possibilities. This finding is also in line with the view that the judicialization and human rights-based approach to contested religious issues might paradoxically result in less freedom, as conservatives manage to rely on democratic instruments to reinforce their positions (Bedner and van Huis, Reference Bedner and van Huis2010, p. 190; Lindsey and Pausacker, Reference Lindsey, Pausacker, Lindsey and Pausacker2016, pp. 5–6).
4.1. The 2015 Constitutional Court judgment
In 2014, the first judicial review concerning interfaith marriage was submitted to the Constitutional Court by four individuals. The applicants highlighted the legal uncertainty in the implementation of Article 2(1) of the Marriage Law and argued that it violated various constitutional rights, including the right to marry and establish a family, equality before the law, and freedom from discrimination.Footnote 18 They also argue that the current definition of marriage infringes on their right to religious freedom, as it grants civil registries the authority to determine the “correct” religious interpretation of interfaith marriages when accepting or rejecting registration requests.Footnote 19 This practice allowed the state to dictate a religious view of interfaith marriage, which neglected the varying interpretations held by different faith communities on the issue. They pointed out that Article 2(1) opened up broad interpretations regarding who has the authority to interpret and determine the validity of marriage based on religious laws. This led to different interpretations on the ground, which infringed their right to legal certainty.Footnote 20 The applicants also emphasized that the mechanism of court approval under the Population Administration Law fails to provide certainty due to inconsistent judicial interpretations among district courts, thus some judges may allow the practice while others do not. In addition to human rights arguments, the applicants presented their understanding of Pancasila, suggesting that it does not privilege any single religion, but instead protects religious pluralism and personal religious beliefs and interpretations.Footnote 21 They proposed additional wording for Article 2(1) to ensure that the interpretation of religious laws and beliefs be left to the discretion of each party.
The court invited representatives of the six main religions to present their views on the Marriage Law and their religious interpretations of interfaith marriage. Muslim organizations, including the two largest ones, Nahdlatul Ulama and Muhammadiyah, supported the religious foundation of marriage under the Marriage Law and testified that interfaith marriage between a Muslim and a non-Muslim is not permitted.Footnote 22 Parisada Hindu Dharma Indonesia, a Hindu organization, also supported the current definition of marriage and asserted that interfaith marriage is prohibited under Hinduism.Footnote 23 Confucian and Buddhist representatives refrained from normative commentary on the Marriage Law and instead broadly discussed some fundamental aspects of marriage in their religions and the possible acceptance of interfaith unions.Footnote 24
Interestingly, the Communion of Churches in Indonesia (Persekutuan Gereja-gereja di Indonesia) within the Protestant community and the Bishops’ Conference of Indonesia (Kantor Waligereja Indonesia) within the Catholic community were more critical of Article 2(1) of the Marriage Law. The Protestant representative argued that Article 2(1) has ignored the country’s pluralist reality and infringed on the right to marry regardless of religious differences.Footnote 25 The group particularly criticized the civil registries’ narrow interpretation of the law, which could lead to the rejection of interfaith marriages even though such unions are already recognized as valid under religious and belief laws.Footnote 26 They therefore demanded a more realistic regulation that responds to the country’s plurality and can facilitate interfaith marriages.Footnote 27 The Catholic representative also highlighted that Article 2(1) often forces individuals to convert in order to register their marriages and creates obstacles to registration even when such marriages have already been approved by religious authorities.Footnote 28 Both Protestant and Catholic representatives indicated that their religions may allow interfaith marriages and expressed hope that the state would recognize church marriages in such cases.
4.1.1. The court’s reasoning and incrementalism
Delivered in 2015, the court rejected the petition with very brief reasoning, centred on Pancasila’s principle of belief in one God.Footnote 29 The court referred to permissible rights limitations under Article 28 J of the Constitution without elaborating on how Article 2(1) met one of the grounds. Instead, it proceeded to conclude that the Marriage Law aligns with Pancasila and the Constitution, and accommodates the diverse realities of society. The court defended the religious basis for marriage under Article 2(1), describing marriage in Indonesia as a manifestation of a happy and long-lasting family based on belief in one God. According to the court, in national life based on Pancasila and the Constitution, religion is considered foundational, and the state has an interest in marriage. The decision further strengthened the religious nature of marriage, as the court regarded marriage as not only formal but also encompassing spiritual and social aspects.
There was one concurring opinion from Justice Maria Farida, the only female Christian justice on the bench. Although Justice Farida agreed with the majority to reject the petition, her reasoning was grounded in the need to revise the Marriage Law to protect constitutional rights.Footnote 30 She calls for the Marriage Law to provide solutions that would enable interfaith couples to secure both legal recognition and registration of their marriages.Footnote 31 Justice Farida’s opinion differs from the majority, with her emphasis on individual rights. According to her, in Indonesia’s Pancasila-based religious society, changing one’s religion is not easy, and this constitutes a matter of religious freedom and personal liberty guaranteed by the Constitution.Footnote 32 She acknowledged the current practice of legal circumvention, which stems from the ambiguity of the law, and argued that the state has no right to compel individuals to marry according to any specific religion, much less to restrict them to religions officially recognized by the state.
Scholars tend to criticize the 2015 decision from the perspective of constitutional rights, especially individual liberty and religious freedom.Footnote 33 They criticized the court’s silence over the legal uncertainty of interfaith marriages and its implications for the rights of interfaith couples to marry. One study from Judith Koschorke, however, did consider broader power dynamics that may force the court to maintain the state’s middle position, which neither formally supported nor condemned interfaith marriages but rather maintained the status quo, where the formal registration of the practice might be possible, albeit difficult (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 217–25). Koschorke noted the highly contested nature of the issue and how it may provoke social and political upheaval. She argued that the court’s request for third-party opinions from more conservative and radical Islamic groups, as opposed to liberal or moderate ones, can be understood within this context. The court’s reasoning for rejecting the petition mostly aligned with opinions from the MUI and the hardline FPI (Front Pembela Islam, Islamic Defenders Front) (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, p. 220). The court may have aimed to mitigate potential conflicts by deferring to dominant religious groups that want to preserve the religious foundation of marriage as set out in Article 2(1). In so doing, it further reinforced the religious dimension of marriage and overlooked concerns regarding individual rights and pluralism (Koschorke, Reference Koschorke, Oberauer, Prief and Qubaja2019, pp. 223–4). In this context, any proposed changes for a more secular interpretation of “marriage” may be seen as an intrusion into the authority of religion and the state’s collective identity based on Pancasila.
An evaluation of the court’s counter-majoritarian role in this case would lead to a fairly clear observation: the court favoured majority sensitivities at the expense of rights protection. This is especially true based on the liberal constitutional paradigm. Yet, the socio-political background of the case provides deeper insights into what may have influenced the court’s decision and the complexities of judging in this case. It is worth noting that while the court puts more emphasis on religious nature of marriage, it was completely silent on the legality of interfaith marriage. The remarkably short and poorly elaborated reasoning in this case may be an inevitable consequence of the court’s incrementalist engagement aimed at maintaining the state’s vague compromise on the issue.
The court did not respond to the uncertainty of interfaith marriage registration. It also did not address the applicants’ request to include a phrase in Article 2(1) that would affirm the individual freedom to choose one’s desired religious interpretation to marry. At the same time, the court did not go so far as to endorse the dominant religious interpretation that prohibits interfaith marriage. Instead, the judgment adopted an abstract view of the religious nature of marriage under Pancasila. However, the court’s silence was not neutral. Although it may have sought to avoid rupture, the decision ultimately reinforced dominant religious authority by privileging religious values without any rights and pluralist considerations.
This case demonstrates the dilemma of judicial engagement in vague compromises on religiously contested issues. Courts may resort to incrementalist strategies to maintain ambiguity, but in doing so, they risk aligning with conservative views rather than creating space for a more inclusive settlement. As I will explain in the next section, in its subsequent 2023 judgment, the court moved away from silence and compromise by offering a clearer response that openly aligned marriage regulation with prevailing religious values and doctrines, thus entrenching, rather than moderating, the dominance of conservative interpretations.
4.2. The 2023 Constitutional Court judgment
In 2022, the Constitutional Court again served as a battleground on the issue of interfaith marriage. The appellant in this case was Ramos Petege, a Catholic who sought to marry his Muslim partner. The reasoning in his petition shared some similarities with the previous application in 2014. He contended that provisions within the Marriage Law, which ground the validity of marriage on the religious laws and beliefs of the parties, are ambiguous and obscure.Footnote 34 He pointed out that the law can be interpreted by the government as mandating couples to be of the same religion, despite the varying interpretations of interfaith marriage. Petege argued that the law infringed upon several constitutional rights, particularly those concerning the right to marry and establish a family, freedom of religion, conscience and belief, legal certainty, equality before the law, and the right to be free from discrimination.Footnote 35
The applicant thus sought a clearer dispensation that guaranteed couples the right to marry based on their “free will” to choose marriage procedures according to the laws of their respective religions and beliefs.Footnote 36 This proposed interpretation reflects the intent of the previous application, which also envisaged a law that would effectively accommodate diverse religious interpretations allowing interfaith couples to marry. However, this time, the applicant has proposed an explicit reference to the aspect of “free will.”
In January 2023, the court rejected the petition and affirmed the religious basis of marriage in Article 2(1). The third parties in this case were also dominated by religious conservative groups against interfaith marriage, suggesting serious gap in representation from more progressive sectors of society on the issue.Footnote 37 Unlike the previous ruling, which was largely vague and remained silent on the validity of interfaith marriage, the court set clearer standards and directly confronted the issue. The court did so in ways that strengthened the religious foundation of marriage and undermined rights and pluralism. First, the court separated the validity of marriage from administrative validity, arguing that the existing registration procedure for interfaith marriages did not constitute formal state recognition of the union. Second, the court imposed limitations on the right to marry under the Indonesian Constitution, underscoring its distinct interpretation from the Universal Declaration of Human Rights (UDHR).
4.2.1. Incoherent judicial reasoning on interfaith marriage recognition
The court began by establishing a constitutional basis for the relationship between religion and the state in marriage laws. This entails religion determining the validity of marriage, while the state decides on the administrative validity.Footnote 38 The court relied on the 2015 decision on the religious nature of marriage based on Pancasila. It held that the validity of marriage falls within the religious domain, and that the role of the state is confined to the registration of marriages officiated by religious institutions or organizations with the authority to provide religious interpretations.
The court’s attempt to separate the validity of marriage from its administrative validity is internally incoherent. It preserves the appearance of the state as a neutral registrar that only “records” what religion decides. However, registration presupposes validity and in reality, the state actively defines and shapes what counts as a valid marriage through its laws and administrative practices, influencing religious authorities, civil registries, and courts. In the case of interfaith marriage, this separation between validity (religious) and registration (administrative) can be used to frame the refusal of registration as merely a product of religion rather than state action, which enabled the state to evade its constitutional obligation to accommodate the practice.
Moreover, the court, for the first time, addressed the administrative procedure under Article 35 of the Population Administration Law, which allows for the registration of interfaith marriages. It paradoxically held that, although such marriages may be registered through court approval, this does not imply that the state recognizes them. This statement is crucial because the court was reluctant to acknowledge that the registration of interfaith marriages within the existing legal framework is equivalent to the state’s formal recognition of their legality, and therefore of their constitutionality. The decision suggests a distinction between registration and formal recognition of marriage without explaining how these two concepts differ.
The court emphasized that the mechanism provided by the Population Administration Law only represents the state’s administrative role in civil matters, whereas the validity of marriage remains based on religious laws under Article 2(1) of the Marriage Law.Footnote 39 This reflects another mischaracterization of both law and practice. The district court’s involvement in marriage registration indicates a state intervention beyond administrative matters. The state, through civil registries and courts, has the authority to decide whether to authorize interfaith marriages based on its interpretation of the Marriage Law and religious doctrines. As such, the registration of interfaith marriages can be refused, even when supported by religious preachers who hold a permissive view of interfaith marriage.
There is significant incoherence in the court’s reasoning, because marriage registration typically implies the state’s recognition of its legality. The court did not follow this line of thinking, perhaps because it wanted to maintain the uncertainty regarding the legality of interfaith marriage, which ultimately resulted in inconsistent and obscure legal reasoning. Yet by explicitly stating that the existing registration procedure does not amount to state recognition of interfaith unions, the court enabled religious conservative groups to rely on the decision in support of a strict interpretation that interfaith marriage is not recognized by the state and is therefore prohibited.
Moreover, the court stated that the validity of marriage, including the prohibition of interfaith marriage, shall be interpreted by religious leaders based on the consensus of religious institutions or organizations, rather than by individuals, whose interpretations could create legal uncertainty.Footnote 40 It went on to explain that the state only follows the interpretations of religious authorities, and in cases of differing interpretations, the authority to resolve the matter lies with religious institutions or organizations.Footnote 41
The court seems to suggest that there is a single dominant authoritative interpretation within the religious community regarding the validity of interfaith marriage. This not only further strengthens the religious character of marriage but also restricts the acceptance of diverse religious interpretations on interfaith unions. For example, influential organizations within both the Protestant and Catholic communities in the country as the two largest religious minorities in Indonesia have provided a permissive interpretation of interfaith marriage and advocated for recognition of interfaith marriages approved by their church.Footnote 42 Nonetheless, forging a “consensus” among religious organizations would likely hinder interfaith couples from marrying, as the prevailing interpretation within some religions clearly does not support the practice.
4.2.2. Limitations on the right to marry: Indonesian exceptionalism and the entrenchment of religious authority
The court decision characterized the right to marry in the Indonesian Constitution as particularly distinctive. It explained the unique nature and limitations of the right to marry under the Constitution in response to the applicant’s submission that religious grounds in the Marriage Law could be employed to prohibit interfaith marriages, despite marriage being a right for everyone and the existence of various interpretations of the issue.Footnote 43 The particularistic nature of human rights was emphasized, as the court reasoned that their implementation in Indonesia must be in line with the state ideology of Pancasila.
The court held that the UDHR and the Indonesian Constitution provided fundamentally distinct frameworks for the protection of the right to marry.Footnote 44 Article 16(1) of the UDHR states that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” The court found that this provision clearly guaranteed protection of the right to marry. In contrast, Article 28B(1) of the Constitution provides that “every person has the right to form a family and continue their lineage through a valid marriage.” This, the court argued, meant that marriage is not regarded as a right but rather as a prerequisite for the exercise of the “right to form a family” and “the right to continue the lineage.” In this regard, a “valid marriage” was considered both a mandatory requirement to fulfil these two rights and a protected constitutional right.
The court’s emphasis on Indonesian exceptionalism further entrenched religious authority over the validity of marriage. It echoed testimony from Muslim conservative groups, including AILA and DDII, to emphasize the unique framing of marriage rights in the Constitution and their contrast with the UDHR.Footnote 45 The court’s reasoning that recognizes the constitutional right to form a family and not the right to marry is deeply problematic. The right to form a family depends on the freedom to marry. By denying marriage as a constitutional right and reducing it solely to its religious character, the court clearly aligned with conservative religious doctrine that seeks to preserve the full religious character of marriage rather than leaving space for pluralism. The court also creates an exceptionalist stance that weakens individual rights, as the decision diverges from prevailing international human rights norms that safeguard both the right to marry and the right to form a family. In so doing, the court limits secularist efforts to invoke relevant international laws and principles on interfaith issues.
The court’s overall interpretative arguments heavily favoured the religious dimension. For the first time, the court interpreted a “valid marriage” under Article 28B (1) as a marriage conducted in accordance with the religious laws of the parties.Footnote 46 This not only affirms the constitutionality of the religious basis for marriage under the Marriage Law, but also establishes a limitation of the right to marry under the Constitution, explicitly requiring marriages to conform to religious laws. The court’s approach in this case contrasts with the Supreme Court’s Andi Vony decision, which sought to balance the religious dimension of marriage and Pancasila with considerations of constitutional rights and diversity.
The court went so far as to justify state restrictions on the right to marry by arguing that marriage is a form of religious expression (forum externum), thus permitting state intervention, unlike internal beliefs (forum internum) that are not subject to limitations.Footnote 47 It claimed that the role of the state is not to restrict religious freedom, but rather to ensure that religious expression does not deviate from the “fundamental teachings” of recognized religions. The court thus considered the Marriage Law to be in line with Article 28J, which allows restrictions on rights prescribed by law to protect the rights and freedoms of others based on moral considerations, religious values, security, and public order.
This line of reasoning could potentially make interfaith marriages more difficult by effectively treating marriage as a religious expression that can be limited and by employing the “fundamental teachings” of religion as a defining factor in assessing the validity of marriage. This may impact how civil registries and lower courts handle requests for interfaith marriages. They may be inclined to lean more towards the “orthodox” interpretations of the recognized religions which prohibit interfaith marriage. Greater emphasis on the religious aspect could also give Islamists more leverage in their push for an explicit prohibition of the interfaith union.
In the Blasphemy case, for instance, the court employed similar reasoning. It emphasized Indonesia’s unique relationship between religion and the state based on the Pancasila to justify the prohibition of publicly expressed religious interpretations and activities that deviate from the “fundamental teachings” of recognized religions in the country.Footnote 48 Although the court stated that the identification of such fundamental teachings extends beyond the state’s autonomy and rests solely on agreements reached internally by religious authorities,Footnote 49 determining which religious authorities are recognized involves a power struggle in practice. In the context of Islam, the dominant religious interpretation of the Sunni community in Indonesia has provided legitimacy for the state to impose restrictions on the rights of religious minorities considered “deviant,” such as Ahmadiyah and Shia (Waluyo, Reference Waluyo2012; Lindsey and Butt, Reference Lindsey, Butt, Lindsey and Pausacker2016). This occurs despite differing viewpoints within the Islamic scholarly community regarding the teachings of these groups (Shah, Reference Shah2017, p. 150).
The court’s reasoning in the 2023 judgment represents a significant expansion from the previous ruling, as it addressed interfaith marriage issues more explicitly and in greater detail, substantially strengthening the religious dimension of marriage. The bias towards religious values is apparent as the court introduced new standards and presented a more substantial basis that could hinder the legal registration of interfaith marriage and even justify the prohibition of the practice.
4.2.3. Judicial ideology and conservative alignment in the Constitutional Court
The court’s continued emphasis on religious aspects of marriage cannot be separated from the possible ideological tendencies of the judges. Indeed, the Indonesian Constitutional Court tends to adopt a conservative stance on issues concerning religious freedom. The court, notably in cases related to the Blasphemy Law, which has undergone judicial review four times, has consistently employed a theocratic reading of Pancasila by suggesting that religious values as reflected in the “belief in one God” principle are the basis of state policies and public life (Rofii and Hosen, Reference Rofii, Hosen and Crouch2023, p. 249). Thus, the religious values can supersede constitutional rights considerations, given the state’s duty to protect religions. In the Blasphemy Law cases, this understanding of Pancasila and religious values allows the court to prohibit unorthodox religious interpretation that is contrary to the fundamental teachings of a religion (Rofii and Hosen, Reference Rofii, Hosen and Crouch2023). The court has affirmed that the responsibility to decide these fundamental teachings lies not with the court, but with the internal religious authorities. Through this religious deference, the court empowers the conservative religious leaders and institutions of recognized religions in the country to impose mainstream religious interpretations that could marginalize religious minorities (Crouch, Reference Crouch2012; Crouch, Reference Crouch2016; Rofii and Hosen, Reference Rofii, Hosen and Crouch2023).
The prevalence of theocratic reading of Pancasila by the Court on sensitive religious issues may suggest underlying ideological inclinations of the judges towards more conservative values. This might account for the court’s use of a similar line of argument that highlighted the central role of religion and the need for religious deference in interfaith marriage cases.
The court’s increased emphasis on the religious dimensions of marriage in the 2023 decision may reflect the growing dominance of conservative views on the bench. In this case, there were two concurring opinions from Justice Suhartoyo and Justice Daniel Yusmic, both of whom show legislative deference to the question.Footnote 50 Justice Suhartoyo acknowledged the legal uncertainty in the practice of interfaith marriage and called for a solution by the legislature that protects religious freedom.Footnote 51 Justice Yusmic also expressed concern over the need to accommodate the practice of interfaith marriage. Yet he suggests that its sensitivity necessitates dialogue with various stakeholders that is more appropriately handled by the legislature.Footnote 52
5. After the judgments: political and social ramifications
The finality and ostensibly legal, rather than political, nature of judicial decisions can be harmful when used to solidify vague norms that hinder legal reform, political adaptation, and on-the-ground negotiation. The aftermath of Constitutional Court judgments shows that judicial resolution may trigger social tension, rather than foster cohesion. As the state’s pendulum swung further towards the religious aspect of marriage, the Constitutional Court’s judgments were prone to be exploited by mainstream conservatives to demand a clear prohibition of interfaith marriage in the legal system.
5.1. Political pressure and the Supreme Court circular
In July 2023, six months after the Constitutional Court decision, the Supreme Court issued a Circular Letter instructing the lower courts “not to grant requests for the registration of marriages between couples from different religions and beliefs.”Footnote 53 This instruction referred to Article 2(1) of the Marriage Law as the basis of its directive. Although not legally binding, the circular serves as internal procedural guidance for Indonesian courts, carrying substantial influence that may discourage judges from granting interfaith requests. This Circular Letter represents a sharp break from the Supreme Court’s earlier stance, which had been more accommodating of interfaith marriage, with the Andi Vony case frequently cited by district courts to permit registration. However, shifting political dynamics have altered this position, as the Circular Letter now explicitly prohibits interfaith marriages.
The political dynamics preceding the directive may illuminate possible forces behind its issuance. Legislative members of Islamic parties expressed strong disapproval of a lower court ruling from the Central Jakarta District Court in June 2023, which permitted marriage between a Christian man and a Muslim woman.Footnote 54 They publicly urged the Supreme Court to annul the decision, pointing out that it went against Islamic laws and contravened the Constitutional Court decision that had refused to legalize interfaith marriage (Hedi, 2023; MPR RI, 2023a). The Constitutional Court decision was thus used to legitimize the religious conservative position on the issue.
This issue quickly escalated into more concrete action, in particular apparent pressure from a conservative politician, Yandri Susanto, who was a legislative member of the Islamic party and deputy chairman of the People’s Consultative Assembly. He was perhaps the most vocal politician opposing interfaith marriage at the time. Yandri made repetitive appearances on national television to speak out against interfaith marriage. He went further by making an official visit to the Supreme Court, where he met with the Chief Justice and asked the Supreme Court to annul the district court decision (MPR RI, 2023b). He claimed to speak on behalf of the people at the grassroots level on this matter (MPR RI, 2023b). One week after his visit, the Supreme Court issued an internal directive that prohibited the lower courts from accepting interfaith marriage registration requests.Footnote 55 It is difficult to confirm whether there is a causal relationship or merely a correlation between the politician’s pressure and the issuance of this directive. Yet, the potential for external influences cannot be overlooked, given the political circumstances leading up to its issuance. Yandri and other legislative members from Islamic parties welcomed this directive, expressing its importance to prevent different interpretations of interfaith marriage and to stop lower court judges from using a legal vacuum to allow the practice (Humas Fraksi PKS, 2023; Khalida, Reference Khalida2023; Savitri, Reference Savitri2023).
I was told by a district court judge that judges would generally tend to follow this internal directive because they are required to respect it as a guideline from the Supreme Court. Lower court judges may risk disciplinary action for non-compliance, especially because they have been internally instructed to follow a directive that aims to address the disparity in approach and interpretation among judges. A second judge from the district court I interviewed also informed me that the majority of judges would adhere to the directive and that they must be prepared to face scrutiny from internal supervision for failing to comply, where they may need to provide clarification or receive a warning. This strongly suggests that despite lacking legal force, the internal directive can significantly influence how lower courts respond to interfaith marriage cases. Moreover, the use of mere internal administrative policy to regulate issues affecting fundamental rights presents a serious legal anomaly. Although some legal avenues to enable the practice technically remain in force, their practical value is substantially eroded by the issuance of this directive.
Two prominent Protestant and Catholic organizations in the country sent an official letter to the Supreme Court, challenging the directives and calling for reconsideration (Pergerakan Indonesia Untuk Semua, 2023). They argued that the directives contradict the Population Administration Law, which permits court approval for registering interfaith marriages. The organizations emphasized the nation’s pluralistic reality, where interfaith marriages are common across ethnic, racial, cultural, and religious boundaries. While Article 2(1) of the Marriage Law has allowed room for interpretations that support the practice, the directives signify a major setback by construing the law to oppose interfaith marriage. Human rights organizations have also urged the Supreme Court to revoke the directives, asserting that they are contrary to the nation’s commitment to diversity under Pancasila (Saputra, Reference Saputra2023; Komnas Perempuan, 2023).
The populist appeal of the issue, especially towards the 2024 legislative election, may provide a helpful additional context. For instance, PAN (Partai Amanat Nasional, National Mandate Party) and Yandri Susanto, the vice-chairman of the party, have made the support for banning interfaith marriage a key issue in their social media campaigns. These recent developments may ultimately underscore the unpredictable nature surrounding interfaith marriage in the country. Despite some flexibility within the legal system and permissive practices by lower courts, high-level political manoeuvring or the ideological inclinations of state actors, including the courts, may alter the dynamics, swinging the pendulum towards an extreme of banning interfaith marriages. The Constitutional Court, through its decisions, has facilitated this trend.
Not only did politicians use the judicial review decision to push for a Supreme Court prohibition on interfaith marriages (MPR RI, 2023b), but the Supreme Court also seemed to justify the directive based on the judicial review decision. An article published in December 2023, with Islamic court judge M. Beni Kurniawan as the main author, argues that the internal directive prohibiting interfaith marriage seeks to ensure legal certainty and prevent disparities in judgments on interfaith cases, and that it is constitutionally justified by the Constitutional Court decisions (Kurniawan et al., Reference Kurniawan, Refiasari and Ramadhani2023). Consequently, it contends that the Population Administration Law, which still allows the registration of interfaith marriages, needs to be revised either through judicial review or legislative process (Kurniawan et al., Reference Kurniawan, Refiasari and Ramadhani2023). The Constitutional Court thus shaped the broader legal, political, and social landscape on how interfaith marriage issues are debated and addressed.
5.2. Informal practices and negotiations
In the absence of legal clarity and certainty, the constant negotiation on the legality of interfaith marriage extends beyond formal legal and judicial structures. Although elite consensus and contestation can significantly impact formal legal practices, they may not always reflect the dynamics on the ground. The local or informal practice may prevail over formal law to accommodate the interest of interfaith marriage. In my conversation with a human rights NGO that has assisted more than 1800 interfaith couples in marrying between 2005 and 2025, the majority of these couples chose to temporarily change their religion on the national identity card to that of their partner for the administrative purposes of marriage registration. This process typically entails a formal change in religious status without religious conversion facilitated by civil registries. When proof of conversion is required, couples may obtain it from permissive religious leaders for mere formality without undergoing actual conversion. This method seems to prevail because of its simplicity compared to the formal process of requesting interfaith marriage registration in civil registries or courts, which lacks certainty of approval. The recognition of foreign marriage certificates under the law also remains a feasible alternative for couples who can afford to marry abroad where interfaith unions are permissible and subsequently register their marriage in Indonesia.
This practice shows that despite the prevailing legal understanding against interfaith marriage, the contest over its permissibility persists. Different parties in society, including interfaith couples, local authorities, religious leaders, and civil society, may be willing to seek accommodations that technically allow such marriages. The flexible nature of religious conversion in the country appears to support this practice (Aini et al., Reference Aini, Utomo and McDonald2019, pp. 192–3), enabling a change in religious affiliation on paper without genuine spiritual or religious convictions. The procedural “reconversion” upon marriage registration may also be seen as acceptable because the law is deemed to only prohibit the act of “entering” into an interfaith marriage, rather than the state of “being” in a marriage where the spouses have different religions.
In the case of a Muslim–non-Muslim relationship, it was usually the Muslim partner who changed their religious identification. Given the country’s Islamic majority, conversion from Islam to another religion tends to be socially controversial. Thus, couples would generally be reluctant to approach religious offices for procedural conversion. By contrast, civil registries that frequently handle interfaith requests are more likely to be sensitive to the dynamics and challenges of interfaith marriages, which could explain their more accommodating approach to procedural conversions. Thus, it is easier for interfaith couples to register their marriages as non-Muslims in civil registries than Muslims in religious offices. This practice allows individuals to maintain their true beliefs while meeting societal or legal expectations that might otherwise prevent interfaith unions.
The clear “top-down” message from the state that the practice is prohibited could intensify structural barriers, complicating informal practices because of potential scrutiny and unpredictable backlash from both the state and conservative religious groups. Based on observations on the ground, the current stringent state position prohibiting interfaith marriage has not only reinforced barriers to legal procedures but also caused a shift among civil registries that used to interpret the ambiguous legal framework in favour of interfaith marriage. Interfaith couples generally tend to avoid using the formal process due to its complexity and uncertainty, yet it could be more viable in places with greater local acceptance and tolerance of interfaith marriage. My informant, who works in an institution helping interfaith couples and has acted as a marriage officiant for interfaith marriages involving Muslims, told me that in some cities, particularly Yogyakarta, Salatiga, and Solo, civil registries tend to be more open to accepting interfaith requests without requiring one of the partners to change their religious identification. The couple then turns to court when their registration requests are refused. The positive attitudes of some local officials towards marriage may be influenced by the diverse religious backgrounds within families and communities in parts of Javanese society, where interfaith marriages and religious conversions are more common (Seo, Reference Seo2013).
However, following an internal directive from the Supreme Court, civil registries in Yogyakarta and Solo now reportedly require interfaith couples to change one of their religious identities for registration, whereas Salatiga remains relatively unaffected. The directive thus has far-reaching influence on how civil registries respond to interfaith requests. Although some civil registries initially believed the directive did not apply to them because it was directed only at courts, developments as of July 2024 indicate that they have been compelled to adopt a strict position prohibiting interfaith marriages. This is likely because, over time, the directive gradually created social and institutional pressure, which made Civil Registry officials more cautious about registering interfaith marriages. The formal legal procedure for registering interfaith marriages is thus becoming increasingly challenging if not nearly impossible. The formal avenues of civil registries and courts, which might have continued to facilitate the practice in certain contexts, have become ineffective. This appears to have caused a shift towards informal practices through procedural conversions, following a general pattern observed in practice to settle this issue.
6. Conclusion
The case of interfaith marriage in Indonesia reveals that judicial intervention in resolving deliberately vague norms may ultimately enforce conservative religious values in ways that undermine rights and pluralism. By judicially “locking in” conservative views, the judiciary became a site of entrenchment rather than adaptability that ignores pleas for incrementalism in religiously sensitive issues. The case demonstrates the complexities of Indonesia’s legal-political approach to interfaith marriage, where the pursuit of social cohesion often necessitates a compromise of legal certainty to accommodate deep religious disagreement in society (Katz and Katz, Reference Katz and Katz1975, p. 667).
The Constitutional Court, especially in its 2023 judgment, provided clarity to an ambiguous legal framework on interfaith marriages that further entrenched the religious dimension of marriage. The court relied on incoherent legal reasoning that portrayed registration as a neutral procedure, ignoring the fact that the prohibition of interfaith marriage arises from state deference to religious authorities and administrative procedures in determining the validity of marriage. The court refused to recognize that the existing mechanism of interfaith marriage registration implies the state recognition of the practice. The court also established limitations on the right to marry and advanced an Indonesian exceptionalism of that right, which can be weaponized to justify the prohibition of the practice.
In this case, the judicial review decision influenced policy changes that are making interfaith marriage increasingly difficult. It was used to support the first explicit prohibition of the practice through the Supreme Court’s Circular Letter. Crucially, the court’s tendency to impose a rigid resolution could hinder future adaptations and negotiations. Informal practices may also face significant challenges if they face pressure from the state and dominant religious groups.
This case presents a complex dynamic relationship in which constitutional and legal arrangements both reflect and affect particular socio-political realities (Shah, Reference Shah2018, p. 214). Jaclyn Neo and Bui Ngoc Son have explained how different constitutional approaches to plurality are likely shaped by political compromise, potentially leading to a “less permanent” constitutional settlement that is constantly open to competing interpretations by actors both inside and outside courts (Neo and Son, Reference Neo, Son, Neo and Son2019, p. 12). In the Indonesian context, the state ideology, Pancasila serves as a constant negotiation ground between different ideologies and interests (Neo and Son, Reference Neo, Son, Neo and Son2019, p. 17; Wiratraman and Shah, Reference Wiratraman, Shah, Neo and Son2019). It can be either responsive or coercive to rights and diversity depending on the political power at play (Wiratraman and Shah, Reference Wiratraman, Shah, Neo and Son2019). The incrementalism pursued to settle interfaith marriage in Indonesia thus cannot be separated from the middle position on state and religion under Pancasila. The ideology can be used both to support and oppose interfaith marriages. This is further reflected in the vague compromise on the religious foundation of marriage in Article 2(1) of the Marriage Law, which becomes a contested space for both supporting and opposing the practice.
Acknowledgements
I am grateful to Dr Dian AH Shah and Dr Mario Gomez for their insightful comments on earlier drafts of this article, and to all the participants in the workshop on Advancing Social Cohesion and the Rule of Law in the Courts of Asia, held at NUS Law in December 2024, for their valuable feedback. All erros are my own. This research project was generously funded by the Ministry of Education of Singapore (MOE) Tier 1 AcRF grant (‘Judging and Social Cohesion in Asia: Insiders’ Perspectives’; Grant No: A-0001430-00-00).
Open access
