Getting The State Out of The Marriage Business

Should we just hand "marriage" over to churches and have civil unions for everyone else?

Doctor Science reacts to a proposal “giving all couples a civil union and leaving marriage up to churches and other religious institutions.”

 I have been civilly married for almost 25 years. In what respect is my marriage not “marriage” enough to keep the name — and the protection of a very large and well-established system of law? I haven’t been able to find good numbers, but I saw a vague estimate that 1/4 to 1/3 of US marriages are civil ceremonies. Have the people saying “government should get out of the marriage business and leave it up to the religions” completely forgotten about secular, civil marriages? Or do they really, in their hearts, believe that my marriage isn’t important, that I wouldn’t lose anything if it was defined away?

My late wife and I were married in a civil ceremony as well and, naturally, considered ourselves to be “married.”

As I understand such proposals, however, all that would change is the label. That is, all of the legal rights that currently go along with “marriage,” whether performed in a civil or religious ceremony, would continue to exist–we’d just call them “civil unions” or “domestic partnerships” or something other than “marriage.”

The rationale for this is that, for some very large segment of the society–likely an overwhelming majority, although it’s inexorably shifting in the other direction–have religious or moral objections to same-sex marriages and strongly believe that “marriage” is an institution that should consist of “one man and one woman.” Referenda on this question inevitably pass overwhelmingly, even in relatively liberal states like California. So, libertarians argue, we solve the problem by giving equal civil rights to all unions, whether same- or opposite-sex, and use the more religious label “marriage” within the confines of various churches.

When this notion started being bandied about eight or nine years ago in response to the first states legalizing same-sex unions, this struck me as a sensible solution to the problem. The more I’ve thought about it, though, the sillier it seems.

First, as Doctor Science makes clear, some very large number of people would be outraged at being told that they’re no longer “married” but in an identical relationship with a less hallowed name. The notion of “marriage” is simply too ingrained into our culture at this point to strip it away at this point.

Second, it’s a hell of a big change to go through to make a few people feel better about themselves. While I’ve long since stopped giving a damn about whether a couple of dudes got married, I get that it’s an issue that others have incredibly strong feelings about. But so what?

Third, it’s a transparently silly notion. People who feel strongly that people of the same sex shouldn’t be allowed to marry one another aren’t going to be fooled by being patted on the head and told, “No, no–they’re not “marrying” one another, they’re just getting married. I mean, civil unioned.” The underlying prejudice, revulsion, or moral outrage isn’t going to disappear.

Via Patrick Appel. Gay marriage image by Shutterstock.

FILED UNDER: Gender Issues, Religion, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ron Beasley says:

    I just suggested the same thing below.
    In the past marriage was for the most part an economic transaction, a political transaction or a spiritual thing. Today there are all sorts of legal considerations – decisions made at a time of a medical crisis, pensions and social security and taxes to name just a few. Marriage is not what it used to be. I personally think that government should simply get out of the “marriage business”, it has only been in it fairly recently, Instead the government should issue civil or domestic partnerships which would be recognized by the Federal government.

  2. A clarification of terms, if you please: what you are really talking about is not the “marriage” business, but the wedding business. Marriage is what couples live, hopefully for life, and a wedding is the event that begins it. And weddings are what this topic really is about.

    Okay – well, as one who has officiated a lot of wedding services as a United Methodist minster, I would prefer not that the state get out of the wedding business, but that churches do. I personally would rather not officiate a wedding again. Instead, I would rather do what used to be common in Europe until Europeans lost their religion pretty much completely: weddings are civilly performed and then the married couple, if they wish, has their union sanctified by their clergy. The UMC’s Book of Worship includes a service exactly for that.

    I wrote a post or two about this years ago that I can’t find right now. If I do, I’ll link them here.

  3. Rob in CT says:

    Well, I personally, would be fine with it. My wife and I were married by a justice of the peace, with zero religious trappings. Civil Unions for all was my position for a while.

    I’ve recently concluded, however, that it will do nothing to quell the religious nuts (and apparently will offend some secular types too). Therefore, meh.

    When this notion started being bandied about eight or nine years ago in response to the first states legalizing same-sex unions, this struck me as a sensible solution to the problem. The more I’ve thought about it, though, the sillier it seems.

    Yep.

  4. Rick Almeida says:

    That is, all of the legal rights that currently go along with “marriage,” whether performed in a civil or religious ceremony, would continue to exist

    Isn’t it more correct to say that a religious marriage ceremony confers no legal rights, responsibilities, or duties unless and until the couple possesses a marriage license?

    IOW, the only marriage that “matters” is the civil version?

  5. PD Shaw says:

    In Illinois, which might be unique in this regard, opposite-sex couples can enter into a civil union. I’m not aware of the particulars, but there are advantages to the civil union over marriage, such as being able to maintain suvivor’s benefits.

  6. swbarnes2 says:

    Great idea. So after years of SSM opponants arguing that SSM will damage straight marriage, you want to literally take marraige away from millions of straight couples. And in return, lots of gay couples will still be “married”, through churches like the UU.

    To whom do you think this compromise will appeal?

    The right answer is coming, and will be universal pretty soon…all that has to happen is the courthouse clerk has to stop counting penises prior to giving the license.
    The simplicity and fairness of that can’t be argued.

  7. Kylopod says:

    People who feel strongly that people of the same sex shouldn’t be allowed to marry one another aren’t going to be fooled by being patted on the head and told, “No, no–they’re not “marrying” one another, they’re just getting married. I mean, civil unioned.”

    The whole “civil union” issue, even when restricted to same-sex couples, was always an exercise in semantics. From the beginning, it was an attempt to expand the rights of gay couples while giving politicians cover against the backlash of social conservatives. You can see this at work at the 2008 vice presidential debate, when Biden stated that he supported granting benefits to “couples in a same-sex marriage.” When the moderator, Gwen Ifill, then asked him point blank “Do you support gay marriage?” he quickly replied, “No.” (This moment was parodied on SNL, which had Biden saying he would “absolutely not” support same-sex marriage, but that “they should be allowed to visit one another in the hospital, and in a lot of ways that’s just as good if not better.”) Presumably Biden intended to say he advocated benefits for “same-sex couples” rather than “couples in a same-sex marriage,” but the slip-up highlighted the semantic nature of the topic.

  8. Okay, I found the post that I referred to in my prior comment. It’s from 2004 and is called, “Separate the legal and the spiritual in the wedding business.”

    Note that I call the civil document a contract, not a union. I don’t think that this is a merely semantic distinction.

    See also my WSJ piece from the same year, “Save Marriage? It’s too late.”

  9. Unless we are going to erase all laws and policies that are linked to domestic partnerships (that’s as neutral a term as I can come up with), then it is impossible for government to “get out of the marriage business.”

    Consider: taxes, social security, military survivor benefits, child support, property rights, etc. You can call whatever you like, but we need policies that deal with these issues.

    Indeed, I laid out my basic position last June: Can Government Get out of the Marriage Business?

  10. May be relevant to note, too, that in striking down California’s Prop 6, the 9th Circuit’s ruling literally undefined what marriage is. If the court’s ruling is upheld, there will be no legal definition at all of what state of affairs constitutes marriage – and that at the federal level, so states will not be free to define marriage for themselves.

    So we could wind up like France, where it is actually legally possible to marry a dead person!

  11. Tillman says:

    First, as Doctor Science makes clear, some very large number of people would be outraged at being told that they’re no longer “married” but in an identical relationship with a less hallowed name.

    Same shit, different day. The sorts outraged by a changing of names over a changing of substance (like “War on Terror” to “Overseas Contingency Operations”) aren’t thinking people, so they’re not going to be persuaded anyway. Further, the majority of the reasoning against allowing same-sex marriage is religious in nature. You’re saying that just concentrating on the civil, societal aspect of it, and removing the religious elements most would balk at, would still lead to outrage? Outside your average Christian dominionist, I don’t see that.

    Third, it’s a transparently silly notion. People who feel strongly that people of the same sex shouldn’t be allowed to marry one another aren’t going to be fooled by being patted on the head and told, “No, no–they’re not “marrying” one another, they’re just getting married. I mean, civil unioned.”

    Those would be the diehards. This idea is a marketing one, and people do respond to marketing eventually.

  12. DRE says:

    @Ron Beasley: I have a better idea. Let the churches define a new word for the “sacred” relationships they recognize. Nobody has to pass or change any laws for that.

  13. PD Shaw says:

    @Steven L. Taylor:” Unless we are going to erase all laws and policies that are linked to domestic partnerships . . .”

    Which would not be difficult in my opinion, several of the court cases have listed every state and federal law in which marriage matters. I think the laws break into two groups. First, the married couple is at the heart of the electorate that politicians pay attention to and they receive benefits, or considerations, unlike non-married couples. Other than the fact I’m married, I don’t think that these laws can be justified.

    The second group are clearly intended to promote a good environment for child-bearing and child-raising, which the government has as much interest in as it does education. To the extent that we live in a time when married people never have children, unmarried people have children, same-sex couples are allowed to adopt, etc. etc. . . . providing these benefits solely to married couples is anachronistic and poor targeting. I think many of these benefits should be reconfigured any way.

  14. Tillman says:

    Isn’t it more correct to say that a religious marriage ceremony confers no legal rights, responsibilities, or duties unless and until the couple possesses a marriage license?

    I’ve been to some weddings where they sign the thing in view of the congregation. Which always rubbed me the wrong way, ’cause I didn’t drive a hundred miles in a good suit to watch a contract signing.

  15. PD Shaw says:

    @Rick Almeida: In states recognizing a common law marriage (Wikipedia says there are currently 11 plus DC), there does not need to be any ceremony or license for the couple to be married. Even in those states where common law marriages have been abolished, I believe there are legal theories available to get the same result if justice requires it.

  16. Brummagem Joe says:

    Sounds like rather a neat solution to me. Render unto Caesar etc. Of course it’s not going to take the issue away for religious zealots nothing would ever do that. So I guess this culture war is going to be around for the next 40 years until demographic and generational changes mean it’s more or less commonplace and legal in most states. It’s not that long ago since homosexual relations between adults was a serious crime after all. It’s a complete waste of time but we like expending a lot of effort on this sort of nonsense.

  17. JohnMcC says:

    @Donald Sensing: Actually, Proposition 8. The inner pedant is satisfied and will move on.

  18. @JohnMcC: @JohnMcC:
    Opps – that’s what I thought I typed. That’s what I get for trying to talk on the phone, eat a sandwich, clean my nails, shave, and drive while I’m typing ….

  19. Jay says:

    People are right, this won’t solve the culture war. But I think the point is that in removing the religious connotation from the license, you remove the Cons’ ability to fight it in court. It’swould be harder in theory to argue to a judge that two men can’t engage in a civil contract.

  20. John D'Geek says:

    California is it’s own worst enemy.

    In the latter part of the 19th century, the Mormon church sued the federal government over polygamy — for them, at that time, it was a religious institution. The US Supreme court said that the Religious Rights clause did apply, however the United States had “compelling interest” in regulating marriage.

    That no longer applies.

    At the time Sexual Expression, Reproduction, and Co-Habitation were regulated, however that is not true anymore. We are now in the odd position where I can do, essentially, everything that a married couple can do without getting married. I can express myself sexually, have children, cohabitate … I can even have multiple partners — as long as I’m careful to not call myself “married” to more than one (e.g. “Living in Sin”; commonly done as “an affair” in the modern era).

    What legal benefits does marriage give to a couple? Which of these could not be covered by generic Contract Law? How many of those benefits are “compelling” — in other words, the government can’t do it another way?

    None.

    Since Marriage is a sacred ceremony for many Religions — and always has been — removing marriage from governmental arena is mandated by the First Amendment; the Government can no longer prove “compelling interest”. Citizens will still be free to call themselves married (as that is a spiritual/religious title); it’s just that the Government will not longer be able to get involved.

  21. Ron Beasley says:

    @Donald Sensing: I don’t really care what you call it as long as everyone is treated equally under the law. Your solution seems to be a good one. I do have a problem with people who quote Leviticus on homosexuality while eating pork and shellfish and wearing clothes of multiple fabrics which Leviticus spends a great deal more time on.
    The fact remains marriage is not what it was in the Bible – women were property to be bought and sold, it was a business transaction.

  22. Herb says:

    @John D’Geek: “it’s just that the Government will not longer be able to get involved.”

    Quite honestly….this is the what makes the “get government out of the marriage business” argument “transparently silly.”

    Both sides –pro and con– are seeking government sanction, either to allow or deny same-sex marriages. That is, getting the government involved is the whole point. Which constituency is this idea designed to please? “None of the above?”

  23. Just 'nutha ig'rant cracker says:

    @Donald Sensing: Ironically enough, Oliver Cromwell’s government was where the “civil ceremony” originated. IIRC, Cromwell’s notion was that the church should have no role in what was basically a matter of societal order. At the time, churches were banned from doing marriages altogether.

    Where the issue intersects with the right wing may be that Evangelicals are operating under what I consider as a mistaken notion that if they can reassert control over specific elements of the social contract—marriage, perhaps, being the lynchpin–America will become a “Christian nation” again outside of their own imagination.

  24. Just 'nutha ig'rant cracker says:

    I forgot to add that at the far conservative end of the Christian/Evangelical spectrum are people who advocate that Christians should only “marry in the eyes of God” eschewing the contract with secular government althogether. A fringe element to be sure, but one that makes an interesting argument.

  25. grumpy realist says:

    @John D’Geek: Actually, that’s not true. There is no way under contract law that you can make yourself eligible for the tax rates for married couples. Ditto for Social Security benefits. Ditto for hospital visitation rights. And if your partner hasn’t made a will, ditto for benefits under intestate law. Ditto for other legal privileges, such as right to not testify against one’s spouse… That’s because there is a third party involved in all of these transactions, and the State/Federal gov’t hasn’t assented to these yet.

  26. John D'Geek says:

    @grumpy realist: But none of these provide “compelling interest”. The government can do these things without “marriage”, they just choose not to.

    @Herb:

    Both sides –pro and con– are seeking government sanction, either to allow or deny same-sex marriages.

    Yeah, I know. But that doesn’t make it right. Fact is neither side gives a flying fig about Marriage — they’re after social acceptance for their POV. One cannot legislate respect, no matter how hard one tries. If it were possible, the 14th amendment would have actually worked as intended. It only took, what, a hundred years for the “one class of citizen” to be implemented nation wide?

    Sorta.

  27. Rick DeMent says:

    I think civil domestic partnerships for all and let religions take care of marriage is the right idea. Of course many religious folk won’t like it because in the end this dispute has nothing to do with “the sanctity of marriage”.

    I mean it not like religious institution don’t impose other qualifications for marriage. To be married in a Catholic church by a priest you have to be Catholic, you can’t be divorced, they do’;t recognize secular divorce, only annulments granted by the church. they don’t recognize secular marriages or those solemnized by other faiths (although if you have been married by secular authorities it’s not like they totally over look that, they still won’t marry you). Other religions has smiler restrictions. the point is to then marriage is a lot more then just between a man and a woman. To a Catholic (and other religions I’m just picking on the Catholics as example) marriage is only between a Catholic man and a Catholic woman, other marriages just … aren’t. So the question is why would the Catholics care if there are a few more marriages that they don’t recognize as valid?

    Or for that matter why don’t they raise a stink about being forced by the government to provide married benefits to couples that they employ in their businesses who are in marriages they don’t recognize as valid.

    So they want to impose their idea of marriage on everyone in the country but exclude exclude everyone from taking part in their specific rituals. This is about control nothing more nothing less.

  28. Robert in SF says:

    @James:
    You keep using that word “overwhelmingly”, but I don’t think it means what you think it means….that or you don’t know history or current events.

    The rationale for this is that, for some very large segment of the society–likely an overwhelming majority, although it’s inexorably shifting in the other direction–have religious or moral objections to same-sex marriages and strongly believe that “marriage” is an institution that should consist of “one man and one woman.” Referenda on this question inevitably pass overwhelmingly, even in relatively liberal states like California.

    My understanding is that “overwhelmingly” means that something wins not by a small margin, or by a relatively small percentage of the whole, but is almost crushed, i.e., is overwhelmed…like a person who is overwhelmed by grief is so busy crying, sobbing, wailing, that they can’t function…they are just over taken by the topic of discussion.

    I do see that you reference the changing of the views for the people, over time, but still…

    The results from the infamous Prop 8 here in California were:

    Election results
    Yes or no Votes Percentage
    Yes 7,001,084 52.24%
    No 6,401,482 47.76%

    So by a margin of 600,00 votes out of 13,000,000, or just 3% margin, the “ban gay marriage” vote won….That hardly seems overwhelming.

    And as for national surveys:
    A 2011 national survey by the by the Pew Research Center for the People & the Press, among 1,504 adults, finds about as many adults now favor (45 percent) as oppose (46 percent) allowing gays and lesbians to marry legally.

    Also, a March 2011 telephone-survey of 1,005 adults by ABC News and the Washington Post found that, for the first time, the majority of Americans favor same-sex marriage.

    http://abcnews.go.com/images/Politics/1121a6%20Gay%20Marriage.pdf

    http://blogs.seattleweekly.com/dailyweekly/2012/02/gay_marriage_opponents_bank_on.php

  29. michael reynolds says:

    Marriage never meant a damned thing to me. My wife and I got married so she could get on my health plan. We were thoroughly lit and giggled our way through the Justice of the Peace ceremony. We don’t even remember our wedding anniversary because what mattered was the day we met. 33 years ago.

    The only importance of this issue is that bigots use it to hammer a minority. Aside from that I couldn’t care less.

    33 years, well over half my life, and the state and the church have nothing to do with it. Love matters. Ceremonies are bullshit.

  30. mannning says:

    Legal binds for all couples under a civil union law seems just to me. For those that want religious binds, they can repeat the ceremony with a minister willing to marry them. Ultimately, it is the bind of steadfast love that counts, and neither administrator nor minister can ensure its longevity.