Conclusion
Notwithstanding the Constitutional Court’s rejection of the judicial review on Art. 2 (1) Marriage Law in 2015, the validity of interfaith marriages remains one of the most controversial issues both in Indonesian Islamic discourse and the national discourse on the Marriage Law.
Openly challenging the status quo, the petition for the judicial review of Art. 2 (1) Marriage Law on marriage validity has been perceived as a threat to Islam, with marriage being understood not as a private matter but as a central aspect of belief and worship. It has also been perceived as questioning the state’s very foundation of Ketuhanan Yang Maha Esa. In this setting of inseparability between marriage and religion, the issue of interfaith marriage is also highly political because it touches the state’s position vis-a-vis Islam. The Constitutional Court’s invitation to the hardliner organisation fpi - known for its radical handling of perceived deviants -i25 rather than some moderate or liberal organisation to become an interested party in the proceedings also has to be seen against this background of political considerations. The involvement of groups promoting interpretations of Islam more favourable to interfaith marriages would have reflected the ongoing controversial debate on the issue within the plural Muslim Indonesian society as well as the aspect of pluralism equally covered by Pancasila. Due to the high sensitivity of the issue and its potential to cause considerable social and political unrest, it is likely that the reason for the inclusion of a group that openly challenges the state's legitimacy and demands the installation of an Islamic state is to be found in an attempt to prevent an escalation of the conflict. Given the symbolic relevance of Art. 2 (1) Marriage Law, which seems to make the provision untouchable in a state based on Ketuhanan Yang Maha Esa, the Constitutional Court had no choice other than to reject the judicial review. This is especially true since the stipulation of marriage validity had almost led to social disruption in the 1970s during the national family law-making process. Against this background, it seems unlikely that legal change will occur by reforms of the Marriage Law itself but rather through the backdoor via procedural reforms, as with the promulgation of the Administration Law and court practice in general.The protection of the majority opinion within Indonesian society regarding religious matters - or at least the one dominating the discourse - at the expense of individual reasoning and individual religious freedom has also been a Constitutional Court practice in other matters of freedom of religion with the purpose of avoiding social unrest. Thus, the decision on the constitutionality of Art. 2 (1) Marriage Law shows similarities to the rejected judicial review on the so-called Blasphemy Law in 2001, which prohibits dishonouring religion, where the court reasoned that “the religion of the individual cannot be separated from the religion of the community”.[764] In this respect, the Constitutional Court decision stands in contrast to the state approach to the legal pluralism of religious laws and constitutional and human rights laws as adopted in the Supreme Court decision in the Andi Vony case and the ‘veiled invitation' in the Administration Law that explicitly attach higher importance to individual rights. With regard to the solution offered by Art. 35 Administration Law it is important to note that its legal force remains unaffected by the rejection of the judicial review. Although the legal situation has not changed, it is nevertheless to be expected that in the future, civil courts will show a stronger tendency to reject the conclusion of at least civil marriages, given the continued emphasis on the religious nature of marriage.
Finally, it needs to be stressed that the outright prohibition of interfaith marriages as promoted in the Indonesian fatawa and the Compilation of Islamic Law remains far from being undisputed. Most notably, it has been the Ministry of Religious Affairs who has given impetus for an Islamic draft law meeting international human rights standards and allowing interfaith marriages to replace the Compilation of Islamic Law. At present, the planned enactment of an Islamic family law statute that is legally binding for Indonesian Muslims is still in the making. However, given the sensitivity of interfaith marriages, it seems unlikely that an outright and explicit legalisation would pass parliament anytime soon.