Against Marriage

I agree with Bruce Bartlett (and, I think, a lot of people these days) that the main thing the gay marriage debate demonstrates is that the government should really get out of the marriage business. The sanctity of marriage and the legal rights of romantic couples are, at the end of the day, conceptually distinct issues that really ought to be distinguished.

The way things ought to work is that a couple is granted a civil union (or not) by the state which entails certain legal rights and responsibilities and granted a marriage (or not) by a church, mosque, or synagogue which confers whatever status it is that the relevant faith community deems applicable. There's nothing wrong, even, with having a merged service or giving clerics the power to perform the civil ceremony simultaneously with a religious one (tradition and convenience alike indicate that one shouldn't need two ceremonies), but as a technical legal matter it should stay separate. Individual religious leaders (and denominations) either will or won't officiate gay marriages (just as many rabbis won't perform a mixed marriage) and that will remain their business, which is what it ought to be. Meanwhile, gay couples and straight couples could enjoy not only the same rights (as in a standard "civil union" scheme), but the same status under civil law as well.

Comments

Count me in as a rock-ribbed supporter of the "civil unions for everyone" plan.

I don't have time to look it up right now, but I remember reading somewhere that France--which is way more gung-ho about church /state separation than the US--has something along these lines already in place.

Posted by James Gary | August 7, 2007 9:05 AM

I fully agree that the state-sanctioned union should be distinguished from the church ceremony. However, the word 'marriage' appears appears thousands of times in federal, state and local laws and attempt to change it to civil union in all those places will be difficult legislatively because it will be opposed tooth and nail. Example: the state grants a 'marriage license' as a completely civil matter which is required for either a civil union or marriage to be consumated legally (not in the sexual sense).

This is more than an inconvenience to be overcome, since even private contracts are involved of various sorts which use the term marriage.

I believe however that the states could more likely pass a law that says that there is both a civil marriage (which is required) and a religious marriage (which is optional) and both are marriages under the law.

This is a case where a complete do-over that involves a vast swath of laws and private contracts is not probably possible. Current practice can be bent, but not redone.

Posted by JimPortlandOR | August 7, 2007 9:17 AM

The news media's discussion on this has been astonishing self-CENTERED and idiotic. Marriage is not about the adults --it's about the CHILDREN.

Society's interest in marriage (or civic unions--whatever) lies in the need for parents of children to make a very long term committment to raising their children. Something which is extremely demanding of time and money.

When adult parents fail to meet that obligation, society has to pay the heavy costs -- teenage crimes up to homicide, gangs, welfare, etc.

Plus we have a moral obligation to ensure that children are not abused and receive a decent upbringing.

I'm personally in favor of a "One Strike and you're out" policy --Involuntary Sterilization if a parent neglects their child.

Society has NO interest in whatever arrangement two childless adults make re property --regardless of sex.

On the other hand, parents --but not childless couples -- should get tax credits and support for schooling. That includes those who adopt as well as those who have natural children.

I'm a married heterosexual who is largely indifferent to the subject of gay rights.

But the criticism of "gay marriage" is hilarious given what a massive trainwreck heterosexual marriage has become in this country.

Posted by Don Williams | August 7, 2007 9:23 AM

This post conflates two concepts: civil marriage and civil union. James Gary's comment touches on this. In several countries that practice strict separation of church and state, such as Mexico and France, the only legally recognized marriage is one performed by the state. If you want to get married by a church, fine, but you must also be married in a civil ceremony for it to be legally recognized. In Mexico, this has become incorporated into tradition, with the "boda civil" being attended only by family, and the religious marriage attended by a much larger group of family and friends. Thus, there is still the problem of whether civil marriage should be extended to same-sex couples, or whether the government should perform both civil marriages and civil unions.

Posted by davidleetodd | August 7, 2007 9:27 AM

but as a technical legal matter it should stay separate.

But that is the situation today, Matt. State marriage laws regulate the civil status; they do not, and obviously from a First Amendment standpoint could not, regulate whether a couple is considered "married" in the eyes of a particular religion. The only conflation is that the same term is used for both.

But don't kid yourself that this is just a nomenclature dispute. The bigots who have enacted anti-gay-marriage laws (and that includes Bill Clinton, thanks Big Dog) are doing so because they do not think that gay relationships are the equal of straight ones and they do not think the state should give it the same sanction. Oh yes, some of them will try to deflect the charge of homophobia by arguing that they're just trying to preserve the religious institution, but as it is obvious to even the most lizardbrained Republican troglodyte that the state is not, has never been, and cannot be in the busines of regulating the religious institution, that argument is just pure bullshit.

These people hate gay people and think we should just go away. It's really that simple.

Posted by Glenn | August 7, 2007 9:30 AM

The idea is completely unworkable. As an atheist, what am I suppposed to tell people? That I'm a "civally-unioned man"? Would my wife still be my wife, or just my "civil-union partner"?

Posted by Jim W | August 7, 2007 9:44 AM

Word, Matthew. It's just not that difficult is it?

Posted by ed | August 7, 2007 9:51 AM

I'm all for separation of religious and civil rites, but there's some use-mention confusion going on here. Your proposal isn't to get the state out of marriage, it's to get the state out of "marriage". You still want state recognition of long-term committed relationships, which won't make libertarians any happier. (Bruce by contrast seems to be advancing an express-contract model analogous to a commercial partnership.)

But as Glenn says (and as the various anti-gay-marriage-or-facsimiles-thereof initiatives show) the religious right's beef isn't about "marriage" it's about state recognition of gay unions.

So, your proposal gives the religious a monopoly on the ordinary word for our pair-bonding institution but otherwise leaves the issue as is. Ta.

Posted by Adrian | August 7, 2007 10:02 AM

Matt, like Glenn said, you're describing life as it already exists for straights. Already the state has the power to grant marriage licenses without any presiding religious figure. You write: "There's nothing wrong, even, with having a merged service or giving clerics the power to perform the civil ceremony simultaneously with a religious one..." Right! That's how it works now!

Except for gay people.

Here's what you need to write: "State-sponsored discrimination against gay and lesbian Americans is immoral and unconstitutional. I support equal marriage rights for same-sex couples."

Not that hard, is it? But really, "civil unions" is just a dodge. The chance that our country is going to change its nomenclature for straights to accommodate the gays is far, far less than the inevitability that gays will be incorporated into the system. One of the reasons it has taken so long is because of liberals who are unwilling to do the right thing due to their own skittishness. Another thing that doesn't help are urban conservatives who socialize with gays, and are often gay themselves, and of course have no problems with gay marriage, but who would rather pander at the expense of continuing to have friends and family members who are second-class citizens.

Posted by jakester | August 7, 2007 10:11 AM

I am in total agreement with MY. We all know that many conservatives would object to doing so because of history and tradition and their bigotry toward gays. But I worry that some gays might also object.

"Individual religious leaders (and denominations) either will or won't officiate gay marriages (just as many rabbis won't perform a mixed marriage) and that will remain their business, which is what it ought to be." I may be wrong, but I think are some gay activists who would be unwilling to leave it at that. These folks view the movement as not just a way of securing equal treatment under the law for homosexual couples, but also as a means of dealing with what they view as the root of anti-gay bigotry--religion. They seek to change religious doctrine along with the law. They view the state's granting of legal marriage authority with the clergy and ministers of conservative faiths as an endorsement of those faiths' anti-gay rhetoric and beliefs. But their answer, instead of simply severing that relationship and making a civil union ceremony the required part, with a separate religious marriage ceremony optional, is to force the anti-gay religions to either perform gay marriages (i.e., change their doctrines) or perform no legally-binding marriages at all.

Posted by Claudius | August 7, 2007 10:35 AM

"In several countries that practice strict separation of church and state, such as Mexico and France, the only legally recognized marriage is one performed by the state."

It's my understanding that this is the case in the US as well (with the wrinkle that religious figures are allowed to conduct civil, state-sanctioned marriages, acting as proxy civil servants).

Perhaps the first step is to disallow this current practice of utilizing religious figures as (unpaid? paid?) civil servants and make all couples that want to be legally married jump through the state hoops apart from any religious ceremony they may wish to undertake. The religious ceremony could be before or after the civil ceremony but legal recognition would only come with the civil ceremony.

I think that's a first good step.

Posted by michael farris | August 7, 2007 10:36 AM

I've been promoting this line for a while. I first heard it on a public radio program. The ostensibly anti gay marriage guy said he thought this ought to be the way to go.

Atheists, since they recognize no divine meaning in the term could call themselves married pretty much at any point in time. Then again in the church of the Crack all women are married to Crack at birth so there is polygamy, but only by Crack.

Posted by crack | August 7, 2007 10:52 AM

I may be wrong, but I think are some gay activists who would be unwilling to leave it at that.

Claudius, I'm sorry, but you can't just make up shit out of whole cloth and then back away with a "I may be wrong." Yeah, you're very, very, wrong. Name me one gay leader of any consequence who has ever suggested, via legislation, litigation, what have you, that the state should be able to tell churches that they have to perform same-sex marriages.

Do gay people in these churches want to change the churches' policies? Sure. But they agitate for it internally, or by trying to publicly shed light on these bigoted policies. No one's trying to have the government take over churches here, not that I've ever heard of anyway.

Posted by Glenn | August 7, 2007 11:02 AM

"The idea is completely unworkable."

Yep. Can you imagine the ads against any Democrat who would propose this? "First, they hurt the sanctity of marriage ... now, they want marriage abolished altogether!"

Posted by will_horton | August 7, 2007 11:03 AM

The other reason it won't work is that the major religion one needs to take account of is Christianity, and in Christian theology, marriage per se isn't a religious institution in the first place. What's a religious institution is "Christian marriage", which is a sort of marriage v2.0. (In Catholicism it's a specifically a sacrament.) A couple not married by a rabbi or and imam or a civil celebrant don't have a Christian marriage, but they're still validly married in the view of Christian churches. In particular, plain old marriage is still considered to have the all-important property of making sex legal. So the churches _can't_ sign off on the government creating a presumptively sexual arrangement not called marriage, because that would be encouraging extra-marital sex.

Posted by Mark Barton | August 7, 2007 11:03 AM

Oops: A couple not married by a rabbi ... -> A couple married by a rabbi ...

Posted by Mark Barton | August 7, 2007 11:05 AM

Re: Society has NO interest in whatever arrangement two childless adults make re property

I guess you think business contracts should not be legally enforceable either.

Re: As an atheist, what am I suppposed to tell people?

You could tell them anything you want. There wouldn't be a law against using words like "married" and "husband and wife" simply because you had only a civil union.

Posted by JonF | August 7, 2007 11:06 AM

Some of the positions in this argument seem to match that of C.S. Lewis.

Posted by KCinDC | August 7, 2007 12:16 PM

Well, I'm not wild about the privileging of "romantic" partnerships. I think there are all kinds of longterm domestic arrangements in this world of ours that make one person dependent on another. It seems to me that, for example, my landladies should be considered domestic partners -- they are sisters who have lived together all their lives.

And, btw, I don't like the American habit of dragging personal lives into public -- the habitual references to "my wife" and "my husband" and all that. Perhaps this is just a mtter of taste. But . . . I don't go around telling people that I'm divorced; nor did I go around telling people I was married back when I was married.)

Posted by mary | August 7, 2007 12:59 PM

"Do gay people in these churches want to change the churches' policies? Sure. But they agitate for it internally, or by trying to publicly shed light on these bigoted policies. No one's trying to have the government take over churches here, not that I've ever heard of anyway."

I never said gay people would try to get government to take over the churches outright. What I meant to say was that some gay activists would use the lever of anti-discrimination law to force churches to change their policies (and not just about marriage) or face the threat of legal sanctions.

If same-sex marriage becomes, like heterosexual marriage, an approved and supported practice under public policy, then government would be obligated to ensure that it did not endorse anti-gay marriage practices in any way shape or form, including through the granting of permits, licenses, tax exemptions, etc. Government would have to scrutinize any activity by religious groups that could be considered as providing a public accomodation or service, including employment practices, charitable works, school admissions policies and curricula, etc., to ensure that they did not discriminate against gay marriage, i.e., homosexuality. Is it such a stretch to think that marriage ceremonies are, in fact, a kind of public accomodation or service?

All I'm saying is that this is one aspect of a huge issue--the way that gay marriage will totally alter the separation of church and state as we know it. Don't take my word for it. Read some of the briefs and papers by Chai Feldblum and Marc Stern, two pro-gay legal scholars who've done a lot of thinking on this.

Posted by Claudius | August 7, 2007 1:30 PM

Well, here's a quote from Marc Stern, not that I consider him to be an LGBT leader:

"No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them."

I feel pretty confident that Chai Feldblum wouldn't say much different. But if you have any actual evidence to point to rather than just hand-waving, I'm all ears (eyes?).

Posted by Glenn | August 7, 2007 1:48 PM

As a theologian working in the US, I've always been stunned that it's perfectly ok with everyone for a priest or other clergy to perform such an important legal function. It leads to all sorts of confusion.

No civil marriage should occur in a church building, or be performed by anything other than an officer of the state. It would really simplify the Catholic divorce position as well.

Posted by nolaboyd | August 7, 2007 2:31 PM

"if same-sex marriage becomes ... an approved and supported practice under public policy, then government would be obligated to ensure that it did not endorse anti-gay marriage practices in any way shape or form"

The right to divorce and remarry is an approved and supported public policy and yet the government is not obligated to (and does not) ensure that roman catholic priests perform marriage ceremonies for divorcees.

Once the state stops using religious leaders as proxy civil servants (or allowing them to perform civil marriage ceremonies if you prefer), the issues you're talking about will dry up and disappear. Some gay activists might try to act as you claim they will (any large enough movement will have numerous lunatic fringes) but won't get very far if they're not members of the churches in question.

Posted by michael farris | August 7, 2007 3:41 PM

Re: What I meant to say was that some gay activists would use the lever of anti-discrimination law to force churches to change their policies (and not just about marriage) or face the threat of legal sanctions.

Huh? Why haven't feminists used those laws to force churches with make only clergy to ordain women as well. There are far more women than gay people and, at a guess, far more politically active feminists than gay activists. But no one has ever even suggested going after the Catholic Church, and others, on this grounds. Or for that matter, what about divorce? There's a huge number of divorced Catholics who the Church will not remarry, and who are excommunicated if they do remarry. Why has no one ever gone to court to change that? I think the answer is staringly obvious: such suits would be dismissed with a quick bang of the judge's gavel. Your fear is a strawman.

Posted by JonF | August 7, 2007 3:46 PM

Dude - I've been saying this for years! I even worked it into my wedding ceremony.

So, I guess, I couldn't really agree more...

Posted by The Black Monk | August 7, 2007 3:55 PM

What I think would help would be to split the currently recognized "rights and duties of marriage" into three categories.

Next-of-kin rights:
Make this easy to declare, and easy to change. This change isn't likely to be terribly controversial (since non-gays are likely to use it as well), and would make a big difference for gay couples.

Property rights:
Make this hard to declare, and hard to change. This includes all the tax and inheritance benefits of marriage, as well as marital property rules.

Sexual rights:
These only apply to paternity issues (children of a marriage are presumptively children of both partners); they don't apply to homosexuals at all in their current form, and ought to be re-thought for everyone.

Posted by SamChevre | August 7, 2007 4:25 PM

The "sanctity of marriage"? That's a good one.

The church and the government, sometimes together, sometimes separately, want to control all the important aspects of our lives, birth to death, including our closest relationships. We're just not capable of managing our lives without their regulation of them, they contend.

Actually, it's none of their business, either of them, if the person I love and live with went through some mumbo-jumbo ceremony or not. Now sometimes this question can't be avoided because of various laws but generally it can be.

Posted by Don Bacon | August 7, 2007 5:36 PM