A Blog Post That Deserved More Comments …let’s start with mine
Jim Babka on Feb 14th 2008
Last week, Jason Kuznicki wrote what was, IMHO, a very important blog post titled, “Maryland: What if Marriage Were Strictly Religious?”
I’m surprised and disappointed that it didn’t receive more comments.
State legislator, Jamie Raskin’s idea, that marriages should be performed by church and government should only participate in civil unions, is, at first glance, radical. But the more you think about it, the more sense it makes.
But it should be particularly intriguing to the thoughtful people who read this blog.
I see in it a middle ground solution that soothes a culture war problem. So why only one comment about Raskin’s proposal?
HERE’S MY COMMENT
I don’t support the government’s involvement in marriage. And while I don’t agree with everything Matt Trewhella says in his pamphlet, 5 Reasons Why Christians Should Not Obtain a State Marriage License, I certainly find it compelling.
The marriages of the nation’s Founding Fathers were recorded in the family Bible — no license required.
Government involvement in marriage had its origins in the colonial period — in the form of anti-miscegenation laws. In other words, racism was the genesis.
It’s time to end this unholy marriage between holy matrimony and the State. Why should a civil government be able to “license” any form of private association between individuals?
Trewhella writes,
Black’s Law Dictionary defines “license” as, “The permission by competent authority to do an act, which without such permission would be illegal.” What if you apply and the State says “no”? … You must understand that the authority to license implies the power to prohibit.
He’s right.
And gay men and lesbians know that all too well.
I’m a big advocate of separation of marriage and state (as well as school and state, church and state, big business and state, etc.). But if government’s only interest in marriage is “divorce,” as the sole commenter to Jason’s post noted, then why is government involved in the licensing of every marriage?
SACRED & CIVIL
Clearly, based on common human behavior, there is both a civil component and a sacred component to this thing we call marriage.
I’ve been to weddings for incredibly pagan people who hadn’t darkened the door of a church in years, until they decided to attend one for their nuptials. I’ve attended funerals for non-believers that still have priests presiding over them (marriages and funerals have a lot in common).
Some events in our lives are just more hallowed than a mere contract.
But it’s equally clear that marriage has a civil element. There may be issues of concern beyond divorce, from the State’s perspective, but divorce is the biggie.
But if civil union was the only thing a state granted, then it could be granted to a number of different relationships — not all of which would even necessarily be sexual. Perhaps two heterosexual women with children could decide to establish a civil union. I could think of several reasons they might choose to do so.
And if civil unions were the only thing a state granted, then consistent with Trewhella’s vision, marriage could still be conducted without a license. Social organizations, churches in particular, could play a much larger role in the entire process. A church could refuse to grant a marriage that doesn’t receive adequate pre-marital counseling or mentoring.
And private arbitration, should the marriage end up “on the rocks,” could also be designed in advance — even by the very social institutions that conduct the ceremony. Church people might start signing pre-nuptial agreements at the insistence of their pastor or priest.
The church, in its ideal form, is designed to nurture and support the marriage, both before the marriage commences, and after the couple says, “I do,” and then begins to raise a family. It provides counseling and support when things are worse, instead of better. It supports the training up of children through a variety of programs. It serves as a backup welfare agency when illness or unemployment causes the couple to be poorer, instead of richer. It provides practical and emotional support when a spouse is in sickness, rather than health (when my father was dying, the outpouring from his church was incredible). The church has a lot invested in the success and health of the family.
But should the marriage break up, why couldn’t the church (or some other social institution of the couple’s choice) provide the arbitration instead of a civil court?
Over time, I would expect private arbitration to require pre-nuptial agreements. A pre-nuptial would go a long way towards insuring that the couple would return to the church should their marriage be on the verge of breaking. A pre-nuptial standard might include a requirement for a waiting period and counseling before the divorce could be transacted.
And civil courts would remain, but only as a last resort.
INTENTIONS
Jason clearly intended to see the legal rights and protections afforded to gay men and to see our country live up to the principle of “equality under the law.”
Now, my intent in writing this way should be equally obvious. I would like to see Christians embrace liberty on the issue of private unions — the rights of individuals to make the arrangements they believe are best.
I believe the church has abdicated its role in marriage. But for those who are unchurched, the state would remain if they chose it. However, I would expect other options to become available as people see opportunity for social bonds, and perhaps even profit, as the reward for establishing alternative social institutions.
And I think the divorce rate would decline if all of these steps were taken. It’s far too easy for a church to marry a couple. They practically push couples to marry. The subculture expects it. Matchmakers lurk in the pews. And the church doesn’t have to deal with the messy problem of divorce later. Most churches have cut their premarital preparation program down to nothing, or ended it entirely.
As a result, a few years ago, Oklahoma, heart of the Bible belt, had the highest divorce rate in the country. Churches teach “moral purity” and that marriage is the only solution for dealing with ones “urges.” When a couple announced they were marrying, they received all kinds of moral support because no one wanted to oppose something as wonderful and holy as a marriage. It should be no surprise, under those circumstances, that too many couples were marrying too young, too quickly, and unprepared.
Divorce was costing the state welfare and social services systems so much they began taking steps to implement a new form of marriage in their state. “Covenant marriage,” combined a pre-marital training program with required counseling and a waiting period before a divorce was granted. It was sold as a more “ideal” marriage by ministers and with minor incentives for those couples who embraced this “new” form of marriage.
But embracing liberty of conscience, promoting a society where the Creator made all things equal, means that Christians should not stand in the way of civil unions — particularly once marriage has been privatized again. And Jamie Raskin has, in my mind, made the proposal that preserves the sanctity of a uniquely spiritual moment.
PRE-EMPTIVE THOUGHTS
For those tempted to write, “the Christian right will never go for it,” or “Dobson, Robertson, et al, won’t permit it.”
In the former instance, education and dialogue will always matter in reaching a solution. The effective slogan of the culture warriors is, “marriage is the union of one man to one woman.” But if you steal the framing of marriage from that phrase, and substitute, “private contracts,” (or some better phrasing, I haven’t given it much thought, but civil unions still seems ‘not quite right’ to me), the slogan flops: “Private contracts are the union of one man and one woman.” Huh?
Even more important, increasingly, the younger generation of Christians is tired of their parents and grandparents culture wars, legalism, and political moralism. The postmodern set is looking for Vintage Christianity, where old spirituality is made relevant to modern circumstance. They think love is more important than an old set of rules — even while they tend to live by many of those rules themselves. They really wish they could bring their gay friends to church with them, but they’re scared of how the oldsters will react.
In the latter instance, the right-wing leaders of the culture war fight those wars because it’s good for business. They won’t take stands that cost them business. The objective here should be to disarm these “leaders.”
Culture wars occur, primarily, because the State is involved and imposes a one-size fits all solution. Want to remove the profit motive from the leading culture warriors? Separate as many institutions from the State as possible.
Jon Rowe repeatedly quote founding era dudes, like Richard Price, who assert things like, “I am grieved, indeed, whenever I find any Christians shewing a disposition to call in the aid of civil power to defend their religion. Nothing can be more disgraceful to it. If it wants such aid it cannot be of God. Its corruption and debasement took place from the moment that civil power took it under its patronage, and this corruption and debasement increased till at last it was converted into a system of absurdity and superstition more gross and more barbarous than Paganism itself. The religion of Christ disclaims all connexion with the civil establishments of the world.”
Rodney Stark notes how and why certain denominations blossomed and others languished here in the United States, as well as how religion in general has flourished in the U.S. and not as much in Europe. The denominations that did the best in both instances were the ones with the fewest state connections. They innovated more and adapted better than their stodgy, state-supported (soulless) counterparts.
When the State gets involved in something, it tends to suck the soul out of it. Charity becomes welfare, for example.
And here in the United States, by 1929, all states had marriage laws. And look at where we’re at now. The real scandal of marriage — the thing the moralists should be concerned about — is the alarmingly high divorce rates (in their own ranks).
Government involvement in marriage is, a war on marriage, all by itself.
Hardball delenda est.
Filed in The Bench, The Boudoir, The Bureau
I’d guess most readers didn’t comment on it because we agree. I’ve believed what Jason wrote for years.
The lawyer in me would add this to your addition: While prenuptials and contracts to engage in arbitration are useful as personal commitments, I’m pretty sure they’d be legally unenforceable in the scenario you describe. People married in the church without a state-issued civil union wouldn’t be “married” or “unionized” in the eyes of the state, they’d just be two single people cohabiting. They’d be free to walk away at any time, with no “divorce” or legal proceedings at all. The church could insist people married in the church go through a “church divorce” or be excommunicated, but it could not enforce the contract in a civil court. It would be like the Church bringing an action for breach of contract against a mixed religion couple who promised before the marriage to raise their children Catholic, then raised them Jewish instead.
OK, well, help me through the details of this because I believe we really could reduce the use of the court system through private vehicles. And I’m not limiting prenuptials and arbitration arrangements to churches.
Agreed!
Regarding Jason’s post ..
I agree again.
I’m hopeful the lack of response is an indication that this is a matter many politicians hope to pervert to further their political goals, and is not a serious issue among the people they pretend to represent.
Ben
promoting a society where the Creator made all things equal
Where did this notion come from, Jim? First I’ve heard of it, and it’s quite an abstraction to build law and society upon.
I think this proposal has it backwards. It’s the religious dimension of marriage that’s irrelevant. The state had a compelling interest in the institution because men, dogs that they are, often left their women and children to fend for themselves.
And, women’s liberation notwithstanding, not a lot has changed.
The comentator on the original post, added a link to a discussion about the Archbishop of Canterbury’s comments on sharia law. Now I think he has been widely misquoted and suggested far less than his oponents think but some of the criticisms may be relevant to your proposal.
Suppose you give the power to arrange marraiages and divorces to churches, synagogues and mosques but allow the state to enforce those arrangements as contracts as a last resort. What then do you do if a private contract stipulates that if a woman converts to another religion she can never see her children again, or looses all right to shared property? I understand some versions of sharia say such things and it isn’t to hard to imagine a Christian or Jewish group with similar requirements.
Now you could argue that this is ok because she consented at the start but that assumes there was a free choice about what kind of marraige to have and with social pressure in a closed community that may not be the case.
And now I seem to have come up unexpectedly on a question about libertarianism that has been growing in my mind for a while. You guys are excellent at pointing out and critcising the problems of Government power but don’t seem to address any other kind. Is there any libertarian critique of the ability of churches, communities and yes corporations too, to pressure people into certain choices?
I suspect part of the answer is going to be that government power is always worse because there is no choice at all but is leaving people in a situation where the choice is ‘my way or the highway’ really a pro-freedom position?
This is not meant as a defence of government intervention, you have pretty much convinced me that is not the solution but I’m left confused as to what is.
Matt, you propose a sticky wicket. How offensive of you cast doubts onto our little utopianism with such cutting questions (LOL).
But seriously, I don’t think there is a perfect solution. Utopia is never an option.
Maybe you can’t separate your values (which frequently come from your religious or philosophical system) from how you govern, if you’re going to retain a civil government. Maybe we would need to recognize that children need their parents (a values based belief) and void sharia contracts that say otherwise. But I fear where this might lead. The contract might require that the children only be raised attending the synagogue, the church, or the mosque, and I certainly wouldn’t want government interference in that clause if only one of the spouses changed their mind at the point of divorce.
It’s interesting to me that Judaism, Christianity, and even Buddhism are not necessarily antithetical to individual liberty. But I’m seriously unaware of a modern society built on Islamic principles that respects the individual. I’d love to see one, but I agree with the Pope that Allah is capricious, and the Judeo-Christian tradition made room for reason. Islam needs a Reformation and then an Enlightenment (and as long as the United States continues to carry out the present foreign policy, Islamic society will continue to be radicalized, forestalling the day when that Reformation comes).
Perhaps we say, right up front — and I realize this isn’t “equality under the law” (so my approach has a problem) — that if you want sharia, there are countries where you can go to to get it. Have a safe trip.
On the other hand, perhaps the best thing to do would be to publicize and shame those who have such contracts, and hold up examples of people who were victimized by sharia law as an example to those considering entering such relationships. Not everyone can be stopped from making bad decisions. But that doesn’t mean that those who engage in such practices can’t be shamed, and those considering entering such arrangements can’t be warned, on the next episode of Inside Edition.
Or, the government could, in advance, determine what can appear in contracts of this nature. Obviously, it would need to tread very carefully.
How would you draw the line on where government interference would be acceptable? Well, as of now, government interference is near-total. So, moving in the direction of separating marriage and state would almost have to be an improvement, wouldn’t it?
I’m just rambling. I hope someone with real knowledge can contribute something valuable here. I think this discussion is too new, but that a solution for our national differences on marriage is down the path of separating marriage and state.
OK, well, help me through the details of this because I believe we really could reduce the use of the court system through private vehicles.
Correct me if I’m wrong, but you seem to propose converting marriage to a private contract.
Let’s take a prototypical private contract–I hire you to roof my house for 5k. We talked about the terms, wrote it down, and signed it. The state was not involved in any way, and it doesn’t have to approve the agreement for it to be binding. I gather this is what you’re picturing for a marriage contract.
The thing is, if you roof my house and I don’t pay you, you still have to go to the state to get it enforced. We could have an arbitration clause, but if I don’t want to abide by it, again, you need a court to order me to do so.
Likewise, if I breach a marriage contract or just want out of it, we’re going to court. And since the terms of a private contract are as various as the contractors, much more litigation would be necessary. There’s only one marriage contract (prenups aside) and there’s pretty solid common law on how it plays out in various situations. The marriage contract we just made up, on other hand, is unique, which means the lawyers on both sides will have a field day offering interpretations beneficial to their side. Uncertainty would be greater, and uncertainty is an incentive to litigate. If it’s obvious who will lose at trial, settlement is more likely.
I’m not entirely clear what role you see the Church (or other Third Party) playing. The Church may write the contract, but who wrote the contract is legally irrelevant. If we signed it, it’s between us and only us. The Church has no stake, and can’t sue to enforce it, any more than my lawyer can sue to enforce a contract just because he drafted it. The Church’s sole “private” means of enforcement would be to take ecclesiastical action by excommunicating us or nullifying our religious marriage (but not our legal union). In some cases that threat might be sufficient to prevent civil litigation, but in many it wouldn’t.
So there would still be a lot of litigation over divorces. If many marriage contracts had explicitly religious components, as seems likely, that would raise all kinds of First Amendment issues, as well. What if the marriage contract requires me to take communion at least once a year, but I’ve converted to Islam? What if conversion itself is prohibited? Can a court order me to deny my religious convictions? Almost certainly not–religious liberty strikes me as “inalienable” in the legal sense, if anything is. You can’t just contract it away. Or maybe you can in some situations. Either way, there’d be decades of First Amendment cases arising out of private marriage contracts.
And there would still need to be court proceedings about custody. Children are people with interests distinct from their parents, and they were not a party to the contract. Prenuptial agreements about custody or childrearing are generally not enforceable.
The result, at least in the short term, is likely that the state would be more entangled in marriage–and religion–than it is now, and there’d be more litigation about it.
How ever did we survive before marriage licenses?
Ecclesiastical courts, the union of church and state, social control based on ostracism, and the legal assumption that a woman’s personhood was nullified when she married?
Civil marriage is more libertarian than its historical predecessors–which is not say there isn’t a better way. Maybe the additional litigation involved in private marriage contracts would be worth the benefits. Maybe it would be better to have civil unions for everyone and marriage as a purely social/religious/spiritual event, which is my preference.
Thank you, Matt. Sometimes I’m a bit too cryptic, but you followed the lead about sharia, which I’d hoped someone would because it’s better that way. As I often offer to Mr. Rowe, we take for granted how much the Judeo-Christian sensibility is taken for granted when we speak of “religion” in the abstract.
Sharia is a bigass reality check on that, a control in any theologico-political experiment. It’s “Abrahamic” too, but a thousand miles and a thousand years distant.
Tilts, in answer to Mr. Babka’s question, correctly identifies social pressure as what used to enforce the marriage contract: marriages were indeed a church and not a state matter in the pre-Enlightenment Days; it was church and society that were inextricably intertwined. The state’s involvement would be superfluous.
Shall I mention here that the stepfather of our modern world, Rousseau, left his wife and kids back in France to fend for themselves? He fits in here somewhere.
Social pressure might have been sufficient for pre-Enlightenment Europe, but as the Western man—and I do mean man as in male—began to move freely to and fro, and the church-society axis eroded, there was no other backstop than the state, and that’s how the modern conventions of marriage, um, evolved.
So, here we are. A look at the predicament of today’s single mother and the statistical pathologies of her children might suggest to some that the Western World has already effectively dismantled the institution of marriage, so all bets are off. But the same evidence might induce others toward a more revanchist position.
OK, perhaps this isn’t feasible because of the equal rights of all to choose their institution and one of those institutions will be sharia.
But I believe part of the church’s duty, when no family exists or is available to take up the slack, is to help care for the woman and children who have been widowed by a dead-beat like Rousseau.
Tom, we may have here, a chicken and egg argument. My side of it may be wrong. And perhaps that makes all the difference. But I have always assumed that expansion of government power undermined social institutions. That, for example, charity, in government hands, became welfare — and charity became much more rare.
And so in this instance, the nexus of family and church — two entities that worked together to manage the institution of marriage — were undermined by state involvement (and the negative results of state undermining usually take decades, if not generations, to be fully manifest).
But if the church no longer had the confidence of the family — or at least of the husband and father…
Jim, everything you touch on seems to have been addressed somewhere by Edmund Burke. Unfortunately, I’m unable to be a helpful guide, but a google of him, family, and “little platoons” turns up much of interest.
However, much of it is not congenial with the general sympathies of your blogbrothers, so I’m not inclined to go into it. Suffice to say that I agree with the notion that modernity, liberty in the Enlightenment sense—including “libertarianism”—and liberalism in it current usage all have inherent in them the seeds of their own destruction, as they are without the means to defend and sustain themselves.
I agree with Tom Van Dyke’s characterization of recent history, although I’m probably somewhat more sanguine about it than he is. The Enlightenment, the rise of liberal democracy, but maybe most of all technological advances that enabled communication and travel across great distances combined to make the old way of doing things unworkable.
Enlightenment ideals of tolerance and individuality make people less willing to ostracize neighbors with different beliefs or “alternative” lifestyles. If the neighbors do turn on you, technology and the modern economy make it relatively easy to escape to a more accepting community. The downside of this is that it makes social enforcement of legitimate family obligations more difficult, creating a space, and perhaps a necessity, for the government to step in. The upside is that it makes the persecution of nonconformists more difficult, too.
I’d happily agree that the government meddles in my life to an obnoxious degree, but as a gay, atheist woman, I’m still freer than I would have been under the old “nexus of family and church.” As Matt pointed out, government is not the only institution that can be oppressive.
I’ve been thinking and perhaps one reason the privatisation of marriage raises so many problems is that marraige actually ties together a lot of different relationships. Maybe the best legal structure for dealing with child welfare issues is different from the best legal structure for deciding who will make medical decisions when you are unconcious or who you can name as spouse on your pension?
Then of course there are the bits of marriage that people care about like romatic love and being considered a couple by your family and friends. I can see no good reason to think law, contracts or anything similarly impersonal should be involved in these.
I think we’re making progress here. And I’m having new thoughts as a result of the comments offered here. Thank you to each of you.
I’m also surprised my co-bloggers, particularly Jason, haven’t jumped in at some point.
But enough about me.
In keeping with Matt’s thought, are there some things about unions that it’s more desirable to have the state mediating?
And in keeping with Tilts at Windmills comments, where is the oppression? I mean… Where is the state particularly oppressive? Where are other institutions likely to be oppressive? (Keeping in mind that the proposal here is to separate marriage and state).
Sorry, been on vacation the last few days.
The problem is that “marriage,” as far as the state is concerned, is a lot of different things.
Here are just a few: It’s about how to decide child custody. It’s about inheritance. It’s about property and financial decision making. It’s about the right to make medical decisions. It’s about the right to sue for wrongful death. It’s about who may — and who may not — receive retirement benefits, even if those benefits come from a private company.
In each of these cases, I think it’s preferable to have a “default” state. It’s just better to have an understanding about how, barring alternate arrangements, everything is going to play out: When one spouse dies, the other gets the house, the kids, the right to sue. No fuss, no questions asked. When one spouse is incapacitated, you look to the other one for decisions. And so forth. In a time of crisis, you do NOT want a bunch of lawyers trying to argue their way through your life.
So that’s why we have these sensible rules. Before anyone says “just get the state out of this,” we should remember that, without these rules, the state would be a lot more IN our lives, since it would be forced to decide each of these questions on a case-by-case basis.
That, my heterosexual friends, is what gay marriages are like right now. We have the state intrude into our lives very often, because we don’t have the commonsense rules that everyone else has. The state comes along and takes away our house, and awards it to the dead partner’s parents, even though the parents hated both of us. The state takes my money for Social Security (just like everyone else), but then says I can’t give it to the person I share my life with (unlike everyone else). The state decides that one man’s visa is expired, and it’s time for him to leave the country and never return. The state comes in and takes away our kids. We’d like to be left alone, if it’s all the same, and NOT have this state interference. We’d like marriage instead.
Now, if it happens that the word “marriage” is too much to take, then fine. Call it something else. But let us have some order and regularity to our lives, and to our dealings with the state, so that we know where we stand as citizens and as family members. Give us the same right to conduct our private and family lives that you have.