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.

27 Responses to Should The State Get Out of the Marriage Business?

  • Just to be clear, you’re advocating that the government recognize what we call “natural marriage” because that is the only path that respects both marital dignity and does not allow — on a widescale — activity and arrangements sanctioned by the state as permissible when it contradicts our basic human nature? Yes? If so, I agree.

  • Yes.

    I suppose to be really precise: I’m saying that we as Catholics should advocate that the state define marriage as what we recognize as “natural marriage”.

    We shouldn’t just cede the point and say, “It doesn’t matter what the state calls marriage or if there even is a civil marriage, because we as Catholics define marriage in our own sacramental way which isn’t the same as civil marriage.”

    Because we as Catholics see natural marriage as a moral good and potential channel of grace, we should exert all possible efforts to keep marriage as it is recognized by the boarder society in keeping with our understanding of natural marriage.

  • How would the civil acknowledgement of permanent, gay unions actually do harm natural marriages?

  • is that a real question?

  • Yes. Based on DCs explicit reasoning, the question is still not answered.

    This says nothing one way or the other about my own beliefs on the matter.

  • How would the civil acknowledgement of permanent, gay unions actually do harm natural marriages?

    I’m not sure that’s exactly the right question. My claim isn’t that “gay marriage” would hurt natural marriages (as in, couples with natural marriages) but rather that from a Catholic point of view we should seek to maintain in the wider society a cultural understanding of marriage which is as close as possible to the Catholic understanding of natural marriage.

    Natural marriage is just that: Natural. A pair of human mates. And so as such it’s necessarily between a man and a woman.

    So my reason why it would be problematic to acknowledge gay unions as if they were marriages is that it sends the wrong cultural message as to what marriage is. And when people have a wrong understanding of what a fundamental social institution is, it will end up hurting them and society as a whole.

  • Mark,

    If the state sanctions something, it is considered to be a right, or a good. We would, in effect, be recognizing all couples as equal, when in a sense a same-sex union is not equal to a heterosexual union, though all people are equal in dignity. It is a false anthropological and ontological presumption.

    It is the epitome of relativism in that everyone vows to kill the debate rather than find the moral virtue to debate toward the truth in a civil manner. The sense of peace is a false one, based entirely on a false premise — that all unions are equal and that the state should make no sort of moral presumptions.

    Additionally, these unions are what creates families and it will open the wrong door in the debate over gay adoption. If the state treats all couples equally, then there is no reason why gays should be prevented from adopting; at best, religious and private institutions wouldn’t have to participate. In essence, the common good is entirely undermined. Revelation set aside, it occurs to me as a homosexual, that the psychological and sociological evidence have not confirmed (nor as a Catholic trusting in the truths of my faith do I suspect they will) that children being raised by same-sex parents will grow up no differently than children raised by parents of the opposite sex — which reflects the natural design in which children are biologically created. In some sense, children are reaffirmed as commodities that people have a “right” to and not as precious gifts. The reason that our culture is suffering right now is particularly founded in our misunderstanding of marriage and family — from the intrinsic feature of bearing and rearing children as a part of married life. Our contraceptive mentality has opened the door to see marriage just as a personal fulfillment with no intrinsic obligations as MM suggested and the result is, there should be no reason to exclude anyone from it.

    The point is this: if we were to have the state adopt a marriage neutral stance, we would be at the point of America over a generation ago when contraception was introduced as a moral-neutral choice for couples, which has done nothing but spiral into an out of control erosion of the family and marital dignity.

    The solution to our cultural struggle doesn’t strike me as a compromise more interested in “peace,” in the sense that no one argues or debates about it, but rather to seek by just means, a recognition of this basic natural institution of marriage that is knowable to some extent by reason. For if we continue to allow our culture to ignore and deny the existence of fundamental truths, we further obscure our sense of God and human nature and are only failing ourselves in trying to save as many souls as possible by relativizing the truth for the sake of not arguing about it.

    Such relativism is already expressed in the terrible misconceptions of American legal positivism. In the Supreme Court case, Planned Parenthood vs. Casey, it was stated in the ruling that: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This may in fact be the moment where relativism was in itself enshrined into law, where the autonomous man now is convinced that we have the right to define — not discover — the truths, moral or otherwise, of the universe. Unless we are willing to admit that there are moral truths written onto the very fabric of our human nature and live according to them, there will be no true human flourishing and we only damn ourselves, if not by God’s mercy in the next life, certainly with more problems and moral qualms in this one.

  • Although I agree that the state OUGHT to affirm only natural, opposite-sex marriage as “marriage,” I also believe that given the state of current legal precedent, legal recognition of same-sex marriage is probably inevitable, barring some kind of miracle.

    In fact, civil marriage as we know it today already has lost all of the elements Catholic teaching says are essential to marriage — permanency, fidelity, and openness to children. No-fault divorce killed the first two elements, and abortion/contraception killed the third.

    Personally I think it was no-fault divorce (which freed couples of having to prove some kind of justifying serious reason to divorce, and allowed them to dissolve marriages by mutual consent, or simply at the whim of whichever spouse wanted out), rather than contraception (which, let’s face it, a lot of couples probably practiced on the sly anyway), that really started marriage on a downhill slide. No-fault divorce makes marriage one of the few, if perhaps the only, legal contract that CANNOT be enforced against the party that wants to break it.

    DC, you argue that recognizing gay unions “sends the wrong cultural message” regarding what marriage is. I say, no-fault divorce already did that. The horse is, in essence, already out the barn door.

    With that in mind, I could accept some kind of arrangement under which everyone — gay, straight, platonic or whatever — can legally enter a civil union or partnership that makes the participants each other’s next of kin, and is not called “marriage”, as a lesser evil to simply being forced to recognize same-sex unions as legal “marriage.”

    A complete separation between religious and civil marriage — such as exists in other countries where religiously observant couples go through two ceremonies and clergy do not sign off on marriage licenses or certificates — may end up being necessary if only to protect religious marriage from the encroachment of the state, which will, I am sure, eventually demand that anyone who performs legal, state-sanctioned marriages must not “discriminate” against gay couples.

  • Heck, if the state is going to get out of the marriage business, why go half way? Really get out of it–no civil marriage, no civil unions, no joint tax filing, no marriage penalty, no civil divorce, no guaranteed inheritance. Require everybody not related by blood who wants to form a partnership of any kind to go through the trouble of enshrining it in legal conracts and powers of attorney. Leave “marriage” to the churches, where it might actually mean something. Fewer people will marry–but chances are fewer will divorce.

  • Elaine’s right about no-fault–that’s what started this on the slide to hell. The real battle needs to be a gradual rollback of no-fault.

    I somewhat sympathize with cminor’s idea, but I’d like to try something else first–a two-tiered marriage system, like that which exists in at least one State (which one escapes me). Namely, you have (1) the old, broken no-fault system and (2) “covenant” (IIRC) marriage, which is fault oriented, and much more rigorous and difficult to end, especially where there are children. I also believe that there are more benefits for couples who choose the old route. You could call the latter marriage and leave the rotted-out no-fault system for “civil union” status.

    [As an aside, the no-fault system has always been why the so-called "conservative case for gay marriage" has been a flight of fantasy--it's domestication powers are clapped out, let alone trying to transform a subculture.]

    The state still has an interest in marital bonds for reasons wholly independent of marriage, starting with those “new citizens” we call children, property, inheritance and the like. It’s grown organically for a reason. If you go to a pure partnership/contract system, you are ultimately proposing another social revolution, more sweeping than no fault divorce, with unforeseeable consequences. “What can it hurt?” is one of the more horrifying phrases in history.

  • Don’t mind me, Dale–I had my snark on. Is it Arkansas that has covenant marriage?

  • cminor:

    Yes, I think it is Arkansas.

    Oh, and don’t sweat the snark. It’s not like I never use it. :)

  • DP- don’t forget corollary to “what could it hurt,” as postulated by M. Shea:

    ‘How were we supposed to know?”

  • DC, you argue that recognizing gay unions “sends the wrong cultural message” regarding what marriage is. I say, no-fault divorce already did that. The horse is, in essence, already out the barn door.

    Elaine, I recognize the point that no fault divorce and contraception have already hollowed out civil marriage and left it with little resemblance to natural marraige, but I think it probably goes too far. Allow me to indulge in thinking out loud a bit here:

    It strikes me that the idea of natural marriage boils down to saying: mating matters. When a human person forms a mating bond (to sound all nature special-ish, if you don’t mind — it’s the Darwin coming out in me) the Church says that that person incurs certain moral and social obligations to fidelity and openness to life whether that person realizes it or not. (And indeed, whether that person is “married” in any formal sense or not. It strikes me this even applies to common law marriage type situations.)

    Now, since the Church holds that when you start a mate relationship with someone, you incur the moral obligations of natural marriage, it would seem logical from a Catholic that it would be good for both individuals and society if society sends the message that entering such a relationship comes with those obligations.

    However, a great many societies throughout world history (and virtually all non-Christian) have allowed some sort of divorce — though in some societies it has been very much frowned upon. How much does that undermine the nature of marraige?

    I’m sure it undermines it, but I’m not sure how much. Marriage remains a relationship which is permanent unless some intervening force (a divorce) comes into play. It’s “natural” end point is death, though divorce than intervene and cut it off early. Thus the “happy ending” for marriage continues to be a “till death do us part” idea, even if half the actual marriages end in divorce instead.

    Similarly, while I think it seriously weakens marriage that the use of contraception (and the idea that people only have children when the intend to) is so widespread, so long as marriages consist of a man and a woman, kids tend to happen. (This is anecdote, not data, but over the years I’ve seen a great number of female coworkers get married, proclaim that they won’t have children “till they’re ready” and then get pregnant as a “surprise” within the next 24 months. Yeah, well, “Surprise!” but if you have sex regularly, even attempting to use contraception, you often end up pregnant.)

    So while I agree there are a great many assaults on marriage in our current culture, I don’t think that natural marriage is such a lost cause as it is. However, I think that abolishing civil marriage entirely and replacing it with a generic “civil union” which was equally available to opposite sex and same sex couples, as well as anyone who happens to share living space and wants some tax breaks, would serve to break down the awareness of natural marriage a good deal more in our society than it already is. Calling it a “civil union” and making it equal opportunity would, I think, tend to strip out a lot of the long standing cultural baggage which currently adheres to the “marriage” term. And that would be to the detriment of society.

    Similarly, although it’s true that no fault divorce makes marriage impermanent (and thus violates its meaning) it would be a lot _more_ destructive if civil marriage were set up to expire and need to be renewed every year. Sure, you can divorce any time with no reason, but there is at least the built in assumption that it will last till death _unless_ something goes wrong.

    It seems to me that going to a civil union only system (open to other configurations than one man/woman mate pair) would be more on the destructiveness level of having an annual contract version of marriage than on the no fault divorce level.

  • A fault in these discussions is, I believe, an implicit sense that the government in the U.S. [the State] is a moral government; that somehow the U.S. is the New Jerusalem, the City On the Hill.

    Now the U.S. government, or its elected representatives, may have done some good things. It has also done some horrible things. Slavery comes to mind, and that continuation of slavery which were the Jim Crow laws. Now we have child murder and killing off the elderly, and the disabled.

    As Catholics, we tend to think that we have a place in this State, this Society. But it is a place on disdainful sufferance: whether from the Protestant denominations or their cast offs, the liberal progressives. Many Catholics look for, and believe they have gained, acceptance from these groups. It is rather like the sufferance gained by Jews under Gladstone – “as long as they know their place”.

    Look around and you will find that the Catholics who have gained some acceptance have done so at sacrifice of their principles. One has but to read the articles in COMMONWEAL, The NATIONAL CATHOLIC REPORTER, AMERICA ["THE" Catholic weekly - ah, the Jebbies].One has but to pay heed to the excuses by “catholic” college and university presidents that they wish to keep up with their academic colleagues.

    I believe it will be clearer if one remembers the treatment of the Church under the Roman emperors. At the moment, the Church in America has not yet been inflicted with open oppression. But it is blind to believe that it could not happen. And especially if so many Catholics act like the bishops under Henry VIII. “What can it matter?”,

    To the question at issue – marriage by two males or two females – state marriage in this country was the product of Protestant theology, itself a degenerative derivative of Catholic theology. Then divorce became easier; then the use of contraceptives ["what can it matter?"]. Now the prevalence of baby murder. And now the growth of pregnancies without “benefit of the banns”.

    It is difficult to keep human nature within bounds. Because it is difficult, it is said to be impossible. That is a cop-out.

  • Gabriel, I seem to remember reading an old Catholic marriage instruction book that my parents picked up (back in the 1950s) which quoted various papal encyclicals as saying, in effect, that since marriage was a divine institution the state really had no right to regulate it in the first place.

    I realize that what the popes in question were referring to were, most likely, civil laws allowing divorce and remarriage. Still, it sounds kind of ironic in light of the Church fighting so hard to MAINTAIN state regulation of marriage today.

    Also, didn’t Martin Luther insist that marriage was NOT a sacrament, but purely a civil matter? If that is the case, perhaps we can indeed thank the Protestant Reformers for our current situation.

    I thought it was Louisiana that proposed or tried “covenant” marriage; I don’t know whether they still have it or not.

    If I were queen I would launch a massive public education campaign aimed at reminding people of the benefits to society of as many children as possible having BOTH a mother and a father. I would also remind same-sex couples that there is nothing preventing them from drawing up private contracts with the aid of an attorney, or even acting as their own attorneys, to confer upon each other all the legal benefits of marriage, such as inheritance, health care decision making, insurance benefits, etc. Therefore their civil rights are not being violated by marriage being reserved for opposite sex couples.

  • While a debate on purely intellectual grounds is of great value, let’s try and approach this with the mind of the CHURCH:

    http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homosexual-unions_en.html

    The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

  • Elaine,
    I can’t speak for all Protestants, but my dh, who was raised Methodist, says that in that church marriage is not a sacrament.

  • Elaine,

    I concur with your opinion of no-fault divorces, but I’d also like to add that contraception played a major role as well. As the procreative act had been torn asunder from the unitive act, a mental divorce between the two seeped into the mainstream where the act of getting married has become ultimately meaningless.

  • Elaine,
    I believe our problem stems from the short time [and it was short] in which the Church was heeded about such matters. The point I am trying to make is that the laws of the Church come first, the state laws second.
    Whether or not the State gets involved in marriage speaks to the morality of the State, not of the Church. For all that we are U.S. citizens, we are Catholics first. Fortunately we have [unlike other denominations, and even unlike Judaism] a central authority which speaks slowly and carefully and clearly on moral matters.

    Just as we are meant to rely on doctors when we have a medical problem, so we rely on the Holy Father when there is a moral problem. We Catholics are extremely blessed in this. This blessing we may have to pay for with the scorn of the mediums and the semi-catholic.

  • Gabriel,

    Assuming that we eventually have same-sex marriage in the future, it would certainly accelerate the decline in the sanctity of marriage as being another ‘option’ to go through the motions. Something along the lines of where Norway and Sweden have regressed to.

    That being said, we as Catholics (and I agree wholeheartedly that we are Catholics first and Americans second) can be shining examples of what a healthy and fruitful marriage is. We can be very counter-cultural and further raise our profile within secular society. We can certainly be winning more converts over to our faith and side in the long run.

    Besides, we procreate in more proficient numbers than contraceptive marriages do.

    Yes, I have a rosy view of the future, but I like it!

  • Tito,

    Much of the problem with the changes is linguistic. Perhaps [if anatomical language is permissible] marriage should be defined as including the possibility of a man putting his engorged penis into a woman’s vagina. It does not include putting the penis into an anus, or sucking the penis, or licking the anus. The proponents of gay “marriage” use the respectability of marriage to distract from these common homoerotic actions.

    [Before anyone gets to annoyed by the words, I refer to 1 Kings 25:22 where David threatens "any that pisseth against the wall". Which is to say, any male].

  • I should add to my comment that the Church does not recognize a marriage when the man is incapable of “putting…”. Or the woman of receiving.

  • I just love how everyone assures me that I agree with homosexual marriage.

    Gee, it’s so nice that there are mind readers willing to throw away MY beliefs in order to get in touch with what “younger people” think these days– gleefully ignoring that we don’t, in fact, all believe whatever they’ve decided to hobble us with.

    The only reason the gov’t really needs to be involved in marriage is because the union of a man and woman tends to result in new little citizens, and it’s in the gov’ts interest to make sure those little citizens grow into law-abiding, stable, productive big citizens.
    A stable mother-and-father type home is the most effective way to do this.

    I really wouldn’t mind some kind of a contract to fix the most common complaint of homosexual activists– I really don’t think you should *have* to be married to someone in order to visit them at the hospital. Sexual activity has nothing to do with that– the older widows and widowers that I’ve known who are cared for by non-relatives who have to jump through a dozen hoops to get the folks who are acting as family…. oops, I’m digressing…..

    Anyway:
    When two men can accidentally find themselves pregnant, then I’ll consider if homosexual marriage might be a civil rights issue.

  • Also, please bear in mind that these are the best legal minds of the law school that produced a nationally known expert in (breaking) federal corruption law — none other than former Illinois governor Rod Blagojevich, who liked to boast about having gotten a C in his constitutional law course.

  • But what happens when one questions the functions of marriage based on public versus private interests? A good intro is here:

    http://squarewondotorg.wordpress.com/2009/03/26/prop-8-and-circular-reasoning-part-iii-bound-to-the-consequences-or-the-rules-of-freedom/

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