More on Government and “the Marriage Business”
Thoughts on tradition, church, and state.
One of the assertions that is often made in regards to dealing with the same sex marriage issue is that the state should “get out of the marriage business” and leave it to the churches. I have long thought this a problematic point of view as a key component of marriage is the fact that it creates, in one action, a series of rather significant legal relationships and obligations. On that point see my post from last year: Can Government Get out of the Marriage Business? (Also, James Joyners’ post from a year prior to that: Should Government Get Out Of Marriage Business?). My fundamental point is that the only way to truly get government “out of the marriage business” is to make marriage nothing more, from a legal standpoint, than a type of friendship. The problem, of course, is that if that were the case we would still need a series of laws and legal processes to deal with issues like child custody, inheritance, joint property, etc. (in other words, all the stuff the marriage, as a civil and legal institution, deals with). Sure, we could either call it something else or create a myriad of processes to deal with these issues, but would that really get government “our of the marriage business”? I think not.
Indeed, most arguments about the government getting out of the marriage business end up being nothing more than issues over semantics wherein couples can enter into civil unions (or whatever one wants to call them) for the legal stuff and then leave “marriage” to non-state institutions. This strikes me as the government staying rather firmly in the marriage business, roses by any other name smelling as sweet and all that. Further, changing the words would not take away the political turmoil associated with the gay marriage question, as there would still be a substantial amount of political opposition to same-sex “civil unions” (see, e.g., the recent North Carolina referendum). We have to remember: the issue at hand is fundamentally about objections to treating homosexuals as equivalent human beings to heterosexuals. All objections to same-sex marriage are vested, fundamentally, not in profound belief in tradition (even if it is that is the claim) but, rather, in a belief that homosexuality is sinful or unnatural (or both). As such, getting government out of the marriage business would hardly solve this issue one way or another.
All of this is a bit of lengthy preface to an observation that Gary Wills made in the New York Review of Books a few days ago in a piece called The Myth About Marriage which makes an interesting historical point about the question of church and state and the “marriage business.” He notes that for quite some time, the church actually wasn’t in the marriage business:
The early church had no specific rite for marriage. This was left up to the secular authorities of the Roman Empire, since marriage is a legal concern for the legitimacy of heirs. When the Empire became Christian under Constantine, Christian emperors continued the imperial control of marriage, as the Code of Justinian makes clear. When the Empire faltered in the West, church courts took up the role of legal adjudicator of valid marriages. But there was still no special religious meaning to the institution. As the best scholar of sacramental history, Joseph Martos, puts it: “Before the eleventh century there was no such thing as a Christian wedding ceremony in the Latin church, and throughout the Middle Ages there was no single church ritual for solemnizing marriage between Christians.”
Only in the twelfth century was a claim made for some supernatural favor (grace) bestowed on marriage as a sacrament. By the next century marriage had been added to the biblically sacred number of seven sacraments.
So, interestingly, at one point in time the church itself wasn’t directly in the marriage business, but rather it was handled by the state. And, again, the above points to the fact that marriage, as a civil institution, has key legal significances that make it something that government has reason to be involved with, unlike, say, friendships.
Now, none of the above makes an argument for same-sex marriage. What it does do, however, is underscore the problem with arguments that are predicated, at least in part, on traditional understandings of social phenomena: often what we think has “always been that way” may, in fact, not always have been that way. Contemporary US culture associates weddings and marriages with churches and the clergy. Therefore, we reason, it has always been that way. This leads to assumptions that government has encroached on an institution when, at least in the case of Rome and the Catholic church, it was actually the other way around.
All of this also fits into a post by Doug Mataconis from the other day: There Is No Such Thing As “Traditional Marriage” (which discusses various historical evolutions of the institution) and a piece I wrote some time ago: Redefining Marriage (which discusses the less-than-“traditional” marriage of the key Jewish patriarch, Jacob, who later became known as Israel). Doug quotes, at length, a rather interesting piece about the evolution of marriage as we understand it. That evolution has been one more towards the notions of love, romance, mutual attraction, and companionship in a way that has augmented the more traditional (if I may use that word) focus on property, progeny, and politics.
Wouldn’t it be easier to get Republicans out of my business…than getting Government out of the Marriage Business?
This bears repeating.
Some of these issues, such as child custody and related issues involving children, are already divorced from marriage in that they apply regardless of whether or not the parents of the children are married.
To a large extent, though, I think the idea of “getting the government out of the marriage business” really boils down to two things. First, there’s the point raised in my post from the other day that marriage licenses themselves are relatively recent in the history of the West. For the most part they came about to prevent certain types of people from getting married, and before they existed marriage was almost exclusively a church-run institution. Second, there is a legitimate question as to whether many of the legal benefits granted to people because they are “married”, as opposed to being an unmarried couple living together, are justifiable in the modern era.
As to the other issues such as inheritance and divorce, these are principally contract (and dissolution of contract) issues when you get right down to it.
@Doug Mataconis:
Yes, but this is my fundamental point. As long as government is involved in some type of contract between two persons in this realm they are in “the marriage business” even if you change the name and the process.
@James: Indeed, this seems to be ALL it’s about. And those objections are always religious in nature.
On more than one occasion, I’ve asked opponents of same-sex marriage this: Provide a decently-supportable argument against same-sex marriage, adhering to but one condition: it may not be based on, or derived from, religion.
Every time, the only response I’ve gotten is…that sound of crickets chirping.
We should follow the pattern of several European countries, in which only a marriage performed by a civil authority (think Justice of the Peace) is valid, while a “church” wedding is optional. The question shouldn’t be whether or not to “get government out of the marriage business,” but rather to get the CHURCHES out of it.
As the warning goes, the problem with reductio ad absurdum is the risk that your opponent ends up embracing the absurdity.
Government gets out of the marriage business –> marriage becomes contractual –> does government now need to get out of the contract enforcement business?
Some hyper-asinine la-la land libertarians actually answer that question, “yes.”
@Steven L. Taylor:
Well, it would be a decoupling of some kind at the very least. Especially if one gets rid of marriage licenses entirely
@Christopher Tozzo:
There is, I think, a big difference between the government providing a legal system that allows for the enforcement, interpretation, and dissolution of contractual relationships and a set of laws that essentially sets up the state as the arbiter of what a “marriage relationship” is. Additionally, there is, as I noted, the question of the legal benefits provided to “married” people that are not available to unmarried people, even via the avenue of private contract.
@Doug Mataconis:
1. So, as i note in the post, you are just changing the process and what it is called.
and, more importantly,
2. The government has to decide, through the political process, who qualifies for this new, Not Marriage but With the Legal Parts Retained thing.
I remain vexed how any of this actually changes anything save for rearranging processes and labels.
@Steven L. Taylor:
Why wouldn’t the general principles of contract law on issues like competence to contract apply? More importantly, why should there be different legal treatment for people who get a piece of paper from the state and those who don’t but still live together in what, for all intents and purposes, is a completely identical relationship?
I admit it’s not an easy question, and perhaps calling it “getting the government out of the marriage business” isn’t the correct what to describe it rhetorically. However with the days fast approaching when same-sex marriage will be universally accepted, one has to wonder why the government needs to be in charge of handing out a piece of paper that says “married” to begin with.
@Doug Mataconis: But you still need a legal threshold, and likely positive action on the part of the individual in questions, wherein the legal relationship between people living together would receive certain protections, yes? Surely the simply act of cohabitation would not automatically confer those rights.
As such, you still need a legal process for instituting the contractual benefits and relationships in question. You can call it whatever you like, but we are talking about the civil and secular aspects of “marriage.” As such, it strikes me that the notion that we can get government out of the marriage business is just about semantics unless we are going to take away, entirely, any kind of legal relationship currently associated with marriage and reduce marriage to simply friends with benefits.
@Steven L. Taylor:
Well, we already have legal thresholds for when a private contract is formed so this wouldn’t necessarily be any different. Additionally, some states still recognize common-law marriages, and states like California have long had laws that recognize the rights of people in long-standing unmarried relationships (e.g., “Palimony”). So, to some extent, the unraveling of marriage and state has already begun.
Again, as I said, I think that perhaps focusing on the “get the government out of the marriage business” line may be mistaken. Instead, perhaps what we’re really talking about is a further step along the rode of evolution of what “marriage” is. As I noted the other day, what started out as something arranged by parents and based largely on economics (or in the case of royal marriages, power) is now seen as a relationship of equals. The more that individuals decide for themselves what “marriage” is, the less the state needs to be involved in defining what it is, or restricting who can enter into the relationship.
An an ordained Methodist minister, I would urge you to distinguish between the “marriage business” and the “wedding business.” What you are really talking about is weddings, not marriages. Marriage is what happens after the wedding.
That being said, I personally would be quite content if I never officiate at another wedding. Even the mostly-traditional litanies of the UMC reveal their feudal-era ancestry and the legal compact of the vows. (“To have and to hold” is a legal term, not a religious one.)
Again, personally, I would be a lot more at ease both theologically and ecclesiastically if an engaged couple exchanged wedding vows secularly, then later ritually and ceremoniously sanctified their marriage religiously.
But that’s just me. I don’t have a lot of allies here among lay people, although my ministerial colleagues feel the same way by large majority in my informal conversations.
Excellent post.
My only minor quibble is the reference to “all objections” being derived essentially from religion. One always has to be careful about using terms such as always, all, never, etc. I strongly suspect quite a few pure secularists objected, for example, to the way in which Massachusetts handled this issue. Legislation via judicial fiat for many people is objectionable, regardless of the particulars.
In any event, I don’t know that there is any practicable solution to this issue. Some people presume the SCOTUS soon will issue a decision that clearly will decide it once and for all. I believe that’s bunk. For an analogous historical precedent of why that’s bunk all one needs to do is to review the bitter legal dispute concerning public school integration that raged all the way into the 1980’s, ironically enough, in Massachusetts.
What started in Vermont with what appeared to be an innocuous law for civil unions I suspect still will be bedeviling the body politic and the courts for many more decades to come.
@Doug Mataconis:
I see this as the state being very much involved.
Of course, the common-law marriage you note would also be heterosexual, meaning that the state is still involved in defining the nature of the relationship.
Again: as long of there are legal/contractual issues at hand, the government is, by definition, involved.
Also again: to me what getting government out of this situation entirely is to make marriage (or whatever you call it) into nothing more than a type of companionship sans any kind of legal significance.
@Donald Sensing:
I think that there is a distinction that can be made, although I think that following still creates problems:
The problem is, the legal aspects become relevant after the vows are taken–and hence the notion that the state can be removed at that point is problematic. One rarely needs the state to settle legal issues on the day of the wedding. It is later (e.g., child custody, death, etc.) that one’s legal relationship with the other person matters.
I will readily grant that issues of sanctification should wholly remain outside of the hands of the state! 😉
@Steven L. Taylor:
Which is why, as I said, that looking at this is “getting the government out of the marriage business” is a mistake. What we’re really talking about is giving individuals greater autonomy in defining their relationships.
And we still have to address the question of the legitimacy of the legal benefits provided to “married” couples, but denied to un-married couples.
Same sex couples (and alternative lifestyle people) have been contracting around property disposition issues long before civil unions arose. This is not that difficult. Its a legal cost issue.
The child-rearing issues are more problematic, but as Doug indicated the court system has already adapted to the disintegration of the traditional nuclear family.
Most of the problems are that the government likes to treat married couples different. They have more collective wealth, so they need to be taxed higher, and they tend to vote more, so they need to be paid off as well. This process could be shortened.
Greetings:
Yeah, me, I think the government should get out of the marriage business and turn it over to organized sexual disfunctionals. You know, like we’re doing.
@Mikey:
Hear hear! I’ve been a proponent of this idea for years. Remove religion from the equation and the civil rights aspect of the issue becomes an even more forceful argument. It would also protect religious liberty, in that a ceremony, reflecting a faith’s beliefs, would be a purely religious event.
@Steven L. Taylor: “The problem is, the legal aspects become relevant after the vows are taken… .”
But this would be true no matter where the vows are exchanged and no matter whether the vows are civil-only or religious.
I am saying let the state handle the civil-contractual side of weddings and other legal-contractual issues, including estate settlements upon death or divorce, and free the church to focus on the spiritual and relational character of marriages. This is pretty much how it’s done now, actually, once the wedding is over.
Almost all the couples I marry these days are already cohabiting. That means that the contractual nature of the wedding is more prominent than ever; they are certainly not looking for the Church’s sanction of their relationship. They really seek legal, not religious, recognition of their troth and all the legal benefits it entails. For them, the signature on the license is far more important than the words of the litany. The ceremony changes essentially nothing about their lives, except usually to make the in-laws on both sides more accepting of the state of affairs. Reconciliation is certainly a role for clergy, but frankly, I sometimes feel like I’m being used for essentially selfish concerns on their part.
If a couple wants a marriage, not merely a partnership, then I’d rather it be because they have genuine impulses toward spiritual union with one another and God, under God’s grace and the care of the Church, not because it simplifies other parts of their lives.
@Mikey: I think the SSM issue is fundamentally about, as Steven said, “objections to treating homosexuals are equivalent human beings to heterosexuals.” I do think objections to homosexuality boil down to religious/cultural attitudes.
@Donald Sensing:
Great point. I’ve always seen cohabiting as a necessary step before a lifelong promise like marriage. That may just be a reflection of my age.
@PD Shaw: “Same sex couples (and alternative lifestyle people) have been contracting around property disposition issues long before civil unions arose. This is not that difficult. Its a legal cost issue.”
As a matter of fact, it ranges from difficult to impossible.
@Donald Sensing: My understanding, primarily from reading Diamond MacCulloch’s _The Reformation_, is that Protestants initially were opposed to weddings in the Church. But people desired their relationships to be given divine imprimatur, and the various Protestant movements compromised in bringing the ceremony into the churches (though not necessarily on the notion of sacrament)
I think that desire still exists for communal announcement and acceptance, though many would just as easily receive this from the state. I personally believe that is a large part of the movement for recognition of same-sex marriages, its not pecuniary-based, but reflects a desire for social approval.
Approval or acceptance?
I accept a lot of heterosexual marriages that I don’t necessarily approve.
@Doug Mataconis: I remind you of your Wills and Trusts class in law school….
One of the reasons we have marriage licenses is so that we have bright-line rules as to whom is considered “in the family” and who isn’t. It makes things much easier. Remember all the case law you read wrangling whether the mother’s live-in-boyfriend had the status of a father?
@grumpy realist:
Of course, the point you raise is the reason it is always a good idea for people to have up-to-date wills
@Janis Gore:” I accept a lot of heterosexual marriages that I don’t necessarily approve. ”
Hey, that’s discriminatory.
Seriously, I think that it would be no difficulty whatsoever for the state to get out of marriage licensing by (1) amending statutes, which are mostly premised on the archaic notion that childbearing and childrearing are the unique result of heterosexual marriages, and (2) relying on contract law for private matters. From a libertarian perspective, that’s probably the preferred outcome.
I think people are social animals and most want something more than the pecuniary components. They want social recognition of their relationship.
I used to be all for shifting all the governmental aspects of “marriage” over to “civil unions” and leaving the word “marriage” to religious folks.
Turns out the religious folks who care about this stuff don’t want that either. In the end, that’s just semantics. What they’re really on about is approval/disapproval. They want society to continue disapproving.
Well, they can pound sand.
@Rob in CT: I agreed with you about civil unions until I read some of the comments submitted to the court when Hawaii voted on the issue. That changed my mind.
“A rose by any other name” was invoked more than once.
I have a question that I have been wondering about: if gay marriage is legalized, would that apply to transgendered people also? Or is it legal for them to marry now?
@PD Shaw: Except, as Doug says, there are certain benefits of marriage that are impossible to achieve through contract law. For example, it is impossible to contract someone to sponsor you as an immigrant to the USA, but citizens are allowed to sponsor their legal spouse. Likewise, there are some very specific types of legal statuses recognized by the federal government that you can only transfer to family members (Native American tribe membership, veterans’ benefit recipient, holder of grandfathered private land within a National Park, etc.) and without a government-recognized mechanism for legally including someone within your family, these statuses cannot be transferred to a “spouse”.
Actually, there are two primary ways of legally converting a stranger-under-the-law into a family member: adoption and marriage. Why are there all these people who want to “get the government out of marriage” but no one who wants to get the government out of adoption?
@Alex:
This gets to the heart of my point: as long as familial relationships have legal significance, it is impossible to extricate government from the marriage question.
@Catfish: That varies by state. Some states recognize a transsexual person’s legal gender for the purposes of marriage, others only recognize one’s sex at birth. So we already have a hodge-podge situation where a couple who can get legally married in one state could find their marriage invalid in the one next door.
For example, New Jersey recognizes an MTF transsexual as legally female for the purposes of marriage, while in New York she’s legally male. She can marry a man in NJ, but not a woman. Before same-sex marriage was legalized in NY, she could only marry a woman, not a man, but now she could marry either.
@Alex: Two words: icky sex.
@Alex: I’m roughly dividing the legal issues into public law and private law. The public law issues largely deal with issues of procreation. The Massachusetts same-sex marriage case had a long list of the laws that treat the couples differently. The Court pointed out that laws relating to childbearing and childraising were not rationally limited to opposite-sex partners when Massachusetts allows same-sex partners to adopt. I don’t believe it would take much effort at all to go through each of those statutes and replace marriage with legal guardianship of a minor. Such a change would better the purpose of the public laws, now that marriage is no longer so tightly related to procreation.
That leaves private laws concerning ownership and control of joint property, which can be handled by contracts, trusts, etc. I certainly know people whose values are rooted in the counterculture 60s, who have not wanted to marry on principle, and who created legal instruments to achieve many of the same results as if they’ve married, though frankly I suspect they modified the arrangement to suit their own tastes.
I think churches and government should both be able to marry people. Just like churches don’t want to marry homosexuals, as an atheist I wouldn’t dream of getting married in a church. But I still want to be considered married with my gov’t sanctioned wedding.
@Steven L. Taylor: @Doug Mataconis: Y’all are missing one very important point — Sex. Both sides are assuming that sex must be part of the marriage “pact”.
But what if the socio-legal contract had absolutely nothing to do with sex? What if one could get the same benefits as marriage without a romantic/sexual relationship? What is left today’s “social marriage” that requires romance, sex, etc.? If the Socio-legal contract is made available without the sexual assumptions, it is no longer marriage. It’s a social convenience for the parties involved — nothing more. It can be made available to friends, to relatives, and so forth.
To those that are for Gay Marriage rights, I ask this — why is Gay Marriage perfectly acceptable when (consensual) Bigamy is not? (Answer: Sex.)
Fact is, sex and marriage have not been linked since the sixties. But, for some reason everyone is still arguing about marriage as if it were.
Leviticus 20:13: “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.”
So the Bible says homosexuals should be put to death. If the Bible-thumpers are claiming that they should not be able to get married based on the Bible then they must also think they should be killed. You can’t have it both ways. The Bible is either the Word of God or a Load of Crap. I vote for the latter. You can’t have it both ways.
@KansasMom: Like heterosexuals don’t engage in icky sex. I think crotchless panties are an abomination.
@Steven L. Taylor:
Canada has very strong Common Law marriage, which kicks in after 12 months of intimate cohabitation. This can actually be a problem for roommates who are no more than roommates. I know at least one person who had to go through a fair amount of trouble to prove to the government that his female roommate was no more than a simple roommate, because otherwise she would not have been able to collect unemployment benefits when she lost her job. (When discussing marriage, people often focus on the benefits and forget the responsibilities – for example, we generally don’t let the spouse of a millionaire collect welfare payments because it’s that spouse’s responsibility to financially support them.)
With an affirmative measure on the part of the couple to register their partnership, things get nasty quickly when there’s any uncertainty and both the government and the couple involved can end up spending a lot of time and money trying to define the relationship as soon as things wander into a grey area.
@John D’Geek: Interesting point. If it were financially beneficial for me to marry another single buddy, what’s to stop us?
What about inheritance laws? Are there laws against marrying near death to avoid taxes?
@John D’Geek:
How two wives (or two husbands, for that matter) settle disputes over estate ownership?
@PD Shaw:
And I’m talking about the public law issues that don’t deal with procreation: immigration sponsorship, the responsibility to financially support your spouse (instead of putting them on welfare), receipt of veterans’ benefits, etc. Just because you’re not talking about those issues doesn’t mean that they don’t exist. Personally, because I cannot sponsor my same-sex partner for immigration to the US, I have had to choose between my country and my primary relationship. That’s a big, big deal and is neither a matter of private contract law nor anything to do with procreation.
I don’t think so, no. What James said plus I think there is still concern about just how consensual it really is (which may not be fair, fwiw). However, in theory I don’t have a problem with it.
@Alex: As to immigration, you’ll probably not like my answer. I don’t think our immigration policy should be family focussed; I think it should be more mercenary, and we should be taking people with high skills, English speaking, and perhaps youth and health. Perhaps you think that’s a dodge, but I think that the government’s main interest in marriage relates to childbearing/childraising. Everything else the government does is likely misguided policy in my view.
@John D’Geek: I think it is more accurate to say that it is consortium, rather than sex.
@PD Shaw:
Do you honestly think that we can have a successful skills-based immigration policy if we don’t allow high-skilled people to bring their family with them?
@PD Shaw: However, historically, contracts between members of same-sex households have not been given the same regard as those of married couples in various jurisdictions. There are numerous cases where hospitals have refused to allow visiting privileges even after a POA has been presented, courts overturning wills at the behest of blood relatives with a history of limited or no contact with the deceased, and social workers separating elderly long-time couples because they are legal strangers.
Even if a couple has a will and a POA, that often isn’t enough.
That doesn’t even begin to cover rights granted inherently by marriage that no contract can convey, such as the right to be considered a spouse for employer-sponsored benefits. Or the unfair taxation inherent in paying into Social Security at the same rates as a married person without the opportunity to recieve lifetime survivor’s benefits. Or the fact that you are not eligible in most states to apply for unemployment benefits if your spouse has to relocate for work.
Or the fact that, according to the military, you are a legal stranger from your spouse, and thus will never be informed directly by the military that your husband or wife died in combat and are cut off from the support structures designed to help military spouses cope during deployments.
@Alex: Sounds like that “Who’s on first” thing.
@John D’Geek: I remember that one of the first couples to take advantage of Massachusetts’ SSM law were two elderly women who had been living in the same house since their husbands died.
Yeah, like Brown v. Board of Education or Loving v. Virginia or, of course, Lawrence v. Texas…
Your false characterizations, as well as your spelling abilities, leave a lot to be desired…