Should The State Get Out of the Marriage Business?
As people wait for the results of the California Supreme Court’s review of Prop 8, Douglas Kmiec and one of his Pepperdine Law collegues have put out a proposal that the government get out of the marriage business entirely, and instead bestow “civil union” certificates on households of any configuration or persuasion.
Instead, give gay and straight couples alike the same license, a certificate confirming them as a family, and call it a civil union — anything, really, other than marriage. For people who feel the word marriage is important, the next stop after the courthouse could be the church, where they could bless their union with all the religious ceremony they wanted. Religions would lose nothing of their role in sanctioning the kinds of unions that they find in keeping with their tenets. And for nonbelievers and those who find the word marriage less important, the civil-union license issued by the state would be all they needed to unlock the benefits reserved in most states and in federal law for married couples.
“While new terminology for all may at first seem awkward — mostly in greeting-card shops — [it] dovetails with the court’s important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow,” wrote Douglas W. Kmiec and Shelley Ross Saxer. Kmiec voted for Prop 8 because of his belief in the teachings of the Catholic Church and his notion of religious liberty but has since said he thinks the courts should not allow one group of Californians to marry while denying the privilege to others.
This sort of suggestion has the bi-partisan appeal of libertarian rationality and a seeming compromise with the cultural left, and Vox Nova blogger Mornings Minion apparently sees merit in it:
This is not a new idea, but I think its merit increases over time. It’s certainly not first best, which is a situation where the civil authorities specifically acknowledge and favor an institution that acts as the foundation of society — permanent marriage between one man and one woman geared toward the bearing and rearing of children. The problem is, this is no longer the social standard and we fool ourselves to think otherwise. First, serial monogamy is considered the norm, and the incidence of divorce is actually greatest in those parts of the country supposedly most religious. And, second, we have long passed the point of thinking about marriage as the bearing and rearing of children — instead, it is seen in exclusive romantic terms, the fulfilment of individual needs and desires. With these two pillars collapsed, is it any wonder that the third– the one pertaining to man and woman– would be the next to go? Where were all those supposed defenders of traditional marriage when heterosexuals were busy redefining it over the years?
Let’s face reality: gay marriage has almost universal appeal among the younger generations. It is not like abortion where divisions remain sharp. And this is because marriage is seen solely in terms of individual rights, something with a very American flavor (and here, as with so many other things, false divisions into “liberal” and “conservative” camps fall flat). So, what do we do? Well, we do all we can to sharpen the distinction between the civil arrangement and the sacrament of marriage. No longer should the privilege of Catholic marriage be available on demand, where nothing is demanded beyond a perfunctory pre-Cana weekend. No, the standards would be much higher. Want your Church wedding? Well, how about actually believing what the Church teaches! This strategy has the added benefit of avoiding any accusations of homophobia – and let’s face it, much of the attack on gay marriage is an attack more the “gay” part than the “marriage” part!
I think there are some real reasons why some Catholics would find this sort of idea appealing.
1) Many are drawn to a “we’re persecuted and out of the world” vision of the Church, and as such the idea that we Catholics have our own form of marriage which is totally different from the secular form has a certain appeal. There is the rest of the country having their civil unions, and only we Catholics know that the true nature of marriage is to descend into the catacombs and pledge our fidelity until death before a priest in some incense choked cave far below the profane City of Man.
2) On the opposite end of the spectrum (though at the same time apparently held by some of the same people) is the vision of Catholicism as the one truly sophisticated religion, the cosmopolitan faith which can on the one hand uphold the sacredness of sacramental marriage, yet on the other understand that civil marriage is something quite different and not be so bitter and judgemental as to simply want to stick it to “the gays”.
Both instincts are, however, off base. It is not, I think, appropriate for Catholics to cede civil marriage to destruction or radical change without making every effort to retain a more traditional understanding of it in the wider society.
The important thing to keep in mind here is that the Church recognizes both sacramental marriage and natural marriage. The Church’s understanding (unlike what I understand to be the prevailing Protestant one) of marriage has always been that it is the couple which administers the sacrament, while the priest or deacon serves as the Church’s formal witness to it and provides his blessing. Thus, while canon law currently requires that a Catholic couple go through the proper rite before an ordained minister in order to have a valid marriage, baptised non-Catholics who marry are seen as having a binding, sacramental marriage. If a baptised non-Catholic gets married, divorces, and later becomes Catholic and wants to marry again in the Church, he or she will have to seek an annulment on his or her previous marriage.
Among the unbaptised, it is natural marriage rather than sacramental marriage that is contracted. Thus even in the complete absence of a “church wedding”, a “real marriage” is taking place from the Catholic point of view which is meant to contain the following elements:
- It is a union of opposite sexes.
- It is a lifelong union, ending only with the death of one spouse.
- It excludes a union with any other person so long as the marriage exists.
- Its lifelong nature and exclusiveness are guaranteed by contract.
Now, some may immediately fire back, “But most Americans don’t think of marriage that way — they’re not contracting natural marriage as the Church sees it.”
This is true to an extent. Natural marriage has been under assault in a number of different ways for a long time. Yet I think excessive cynicism about the state of natural marriage in America can miss the point. Despite all of the bad attitudes surrounding marriage at this time in our country, people still see it as being “a big step”. Nor is “natural marriage” something which is merely dreamed up in Catholic catechisms. It is natural in the sense that fairly close approximations of it are found in nearly every world culture.
State civil unions will never carry that cultural and moral baggage. And as such, if we support the abolishing of civil marriage and its replacement with civil unions, we will be encouraging non religious people and non-practicing Christians to increasingly see “living together” in a civil union as the end state of a relationship rather than marriage.
There’s a reason why “marriage” is a term that different cultural groups see as worth fighting over. It remains a term with tremendous cultural and moral baggage. Even if Kmiec’s proposal was politically viable (and I don’t think it remotely is — it would provide a defeat to both sides in the “gay marriage” debate) it would be a terrible idea and would contribute to the further unravelling of the social fabric. We, as Catholics, should fight to keep the institution of “civil marriage” from being deformed even further from our understanding of what “natural marriage” is.