Question of the Week: Can We Really “Get the Government Out of the Marriage Business”?

Question of the Week: Can We Really “Get the Government Out of the Marriage Business”? December 10, 2012

Tell me if you’ve heard this one before.  A conversation is taking place on same-sex marriage.  One side is for it.  American law, they say, should not effectively sanction the traditional Christian view of marriage and reject other visions of marriage, including gay marriage.  The other side is against.  Heterosexual marriage is not merely a Christian concept, they say, but the foundation of western civilization and the further degradation of the marriage structure only invites continued social decay.  Besides, they say, if we legalize same-sex marriage, then it will not be long before churches or at least chaplains and faith-based enterprises in the wedding business will be forced to perform or service ceremonies that violate their conscience.

Wait a minute! someone shouts.  This whole problem arises in the first place because of an unholy entanglement of church and state.  Why is it that the church, which otherwise has very little to do with government authority, accepts a kind of limited partnership with the state in defining who is married and who, therefore, should receive the legal benefits marriage confers?  Why don’t we separate the sacred ceremony, which declares who is married in the sight of the church, from the state ceremony, which adjudicates who is joined in civil partnerships for the purposes of taxation, health care and so forth?

It’s an appealing vision.  Those couples who merely want to be joined in the eyes of the state, and receive the benefits thereof, can have civil ceremonies.  Those who also want to be joined in the eyes of their church can seek a church that will conduct the sacred ceremony.  State benefits will flow from the civil ceremony and church benefits (for those churches that provide special consideration for married men and women) will flow from the sacred ceremony.  Then, the theory goes, the state could honor same-sex unions (or “marriages” — I’m sure there would be a fight over the terminology) while the churches committed to a traditional definition of marriage can continue to honor male-female unions only.

I didn’t post a new Question of the Week last Monday because we were still discussing whether evangelicals should continue supporting a legal definition of marriage that only honors heterosexual unions.  This week I want to push on this particular question: Would it really make sense to “get the government out of the marriage business”?  Or, perhaps better put: Should the church and the state separate the sacred from the civil ceremony?  Is this realistic?  Does this provide relief on the question of same-sex marriage?  

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  • It’s what CS Lewis argued in Mere Christianity:

    “Before leaving the question of divorce, I should like to distinguish two things which are very often confused. The Christian conception of marriage is one: the other is the quite different question—how far Christians, if they are voters or Members of Parliament, ought to try to force their views of marriage on the rest of the community by embodying them in the divorce laws. A great many people seem to think that if you are a Christian yourself you should try to make divorce difficult for every one. I do not think that. At least I know I should be very angry if the Mohammedans [Muslims] tried to prevent the rest of us from drinking wine. My own view is that the Churches should frankly recognise that the majority of the British people are not Christians and, therefore, cannot be expected to live Christian lives. There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.”

  • What you are proposing is actually the way marriage exists today on virtually all of our western societies. However, you have it a bit backwards. Currently, pastors are acting on behalf of the state when they are solemnizing marriages. They are authorized by the state to perform a ceremony thatestablishes a state contract. Each religion can, and always has, been able to limit who they marry based upon membership. No one that I know has ever had a problem with the unions performed by a Justice of the Peace or other person, and happily refers to the couples as being married.

    This is the area that seems to confuse religious opponents of gay mariage.

    • Timothy Dalrymple

      None of what you say is surprising or in dispute, so I don’t think it was missed. The point remains that churches essentially become partners of the state when they solemnize marriages. I know this, having (I’m ordained) officiated five wedding ceremonies myself, where on each occasion I spoke according to the “powers vested in me” and signed a marriage certificate when the ceremony was finished. I think the question is more fundamental, though, and it has to do with taking a fundamentally religious concept such as marriage and giving it the imprimatur of the state. To those who ask, “Why should the state give its imprimatur to heterosexual but not homosexual marriages,” many ask “Why should the state be giving an imprimatur at all, in what ought to be fundamentally a sacred, ecclesial ceremony?”

      • “Why should the state be giving an imprimatur at all, in what ought to be fundamentally a sacred, ecclesial ceremony?”

        Property law and family law.

        • This is exactly the point. It is the *secular* contract that is being recogized. If is religion has supremacy in this realm, there would be nothing to prevent different interpetations of the contents of that contract. Some sects might give more property or default child custody to one parent than the other. This is one area where the separation of church and state is critical and the supremacy of the state the only possible way to treat all citizens fairly.

          • Daniel Lafave

            There are societies that operate this way. Iraq, Syria, Jordan, Lebanon, Israel, the Palestinian Authority, Egypt retained the Ottoman Empire’s Millet system under which religious authorities for the particular religious communities (Millet) settle questions of family law. As a result, a Jew in Israel who wants to marry a non-Jew or who simply wants a secular wedding must marry in another country (often Cyprus). Under a 1951 Supreme Court of Israel ruling, these civil marriages outside Israel are recognized in Israel.



            Needless to say, this isn’t the system that we have in the US though. Family and Property law are secular matters under the authority of the Legislature and Courts.

  • Basil

    I found an article from USA Today, from 2003, which reports that something like 40% of marriages are done by civil ceremonies, without religious involvement. As far as I can tell, everyone considers those couples married.

    Church and state are already separated — if they weren’t, then we would not have married couples whose marriage was performed by a civil authority (judge, clerk of the court, etc…). The question at hand is whether we will continue to impose selective religious tests as part of civil law in order to prevent same-sex couples from marrying.

    • Timothy Dalrymple

      Basil, see my response to PeiCurmudgeon above. I wasn’t saying that they are NECESSARILY entangled. Yes, of course, one can get merely a civil ceremony. However, they are often entangled, and this gets us into the question of why the state and the government should be cooperating in this way, such that the state should essentially have an “imprimatur” function on sacred ceremonies (it’s *really* a marriage once you sign the certificate) and such that the church should be involved in solemnizing civil affairs. The question is whether it would be better to pull it apart entirely and have them function as entirely separate institutions.

      • Basil

        As I understand it (I may be wrong), if you want to get married in France, you HAVE to have a civil marriage license and ceremony at your town hall. The religious ceremony is completely separate, and totally optional — and probably not as common as it is here, since Europeans generally tend to be less religiously observent than Americans. (I don’t have data to back up that assertion, but I don’t think it would be hard to find)

        Our system isn’t so different — we also have dual tracks. But it is more entangled, probably because we are more religiously observant society. But that really is the choice of couples getting married — do they want the clergy of their choice completing their civil marriage license. That being said, it is odd that clergy are allowed to fulfill an official government document (at least compared to European countries like France), but I guess many couples find it to be a matter of convenience (not having to have 2 ceremonies).

        From a civil/legal perspective so much of the law and regulation in our lives is in some way determined by our marital status. It pops up everywhere — taxes, pensions, property ownership, court testimony, health insurance….the list into the thousands. That is the injustice of denying access to civil marriage to same sex couples. But I get your discomfort at the entanglement of the two institutions: civil marriage and sacramental marriage (or religious marriage), and our linguistic custom of considering both “marriage”. Maybe Tony Jones (your fellow blogger) is right in his refusal to sign on civil marriage licenses. I guess the question is whether you, as an ordained pastor (it is pastor, right?) want to lend your imprimatur to a civil marriage license. I think you have to answer that question in however your heart leads you. I don’t see this as a right/wrong issue. (shocking, I know!)

      • Basil

        One more fun story, which may be relevant. Quakers (of which I am one) did not have recognized marriages in England for the first 100 years or more of their history, because British law required all marriages be consecrated by the Church of England. We were just that wierd bunch of heretics, who don’t even have clergy! So the Quaker marriage custom is for everyone to meet and worship together (as we normally do), but with the couple exchanging their vows before the congregation, and then signing a marriage certificate that records those vows. Then the members of the congregation are invited to sign the certificate as witnesses. This was our defense, in case the legitimacy of a marriage was questioned — the couple would point to the certificate and say — “Look, John, Mary, Edward….were witnesses to our marriage — there are their signatures”

        My congregation, the Friends Meeting of Washington, started marrying same-sex couples in 1992 (after several years of debate). Now the law did not permit same-sex marriages until 2010, but the congregation recognized (and continues to recognize) those couples as married, regardless of what the law may say. That was a point stressed to me, when my husband and I asked for the congregation’s permission to marry. But being Quakers, as an act of civil disobediance they would submit the paperwork for a civil marriage license (duly completed by whomever was acting Clerk of the Marriage Oversight Committee — we love our committees, and our civil disobediance!) to the city government, to register those marriages. Of course, we would invariably get the polite but firm legal rejection letter from the DC government.

        Marriage equality became the law in March 2010 (with our congregation one of many in strong support). As it happened, my marriage to my husband, in September 2010, wound up being the first legally recognized marriage of our congregation. We both feel strongly that owe a debt to those who came before us, for their struggle for equality.

        As citizens, I think we are entitled to equal protection under CIVIL law. But how we view a marriage in religious terms is our own personal decision. Leaving aside the legal/financial/social handicaps, we can actually be married without state sanction. It is your choice whether you want to provide state sanction to any couples you are asked to marry – and I think there is no wrong choice.

        • Joe

          To make what you said easier, government should allow people to define the word “marriage” for themselves so that “civil marriage” becomes the more legal and contractual “partnership” and religions are allowed to define the word marriage as they are compelled by what authorities they abide by to define it. That way religions can identify couples as married or not according to their criteria.

  • Hugh Rutledge

    I think that to prevent confusion it would be helpful for those who get a civil ceremony to sign a disclaimer acknowledging that they understand the ceremony in no way implies that the government or their fellow citizens are endorsing the union in the case that God might have objections.

    • kenneth

      The First Amendment has made it clear from day one of the republic that the government never presumes to act as a religious authority.

  • Jeremy Forbing

    I don’t think the government should define marriage at all. This gives the government too much power over what has been traditionally a function of the church. For legal and tax purposes, the government should recognize some kind of civil union, but individual churches should define marriage in keeping with their interpretation of Scripture. Why traditional small-government movements are not all over this idea, I have no clue. If religious people are worried that government legalization of something means we have to teach that it is okay, that level of government power over personal morality needs to end.

    • Joe

      Well said. I love watching how relentlessly bipartisan this proposal is.

    • plutosdad

      The problem with this is, if you see what gay couples go through now to get the same benefits as a married straight couple using civil contracts, it costs anywhere from $5,000 to $10,000. That is simply out of the price range of most people, so having a simple contract that is already the same for everyone helps out the majority. Others can create prenups and put whatever language they want in those. Plus it would also be prohibitively expensive for others who are not the “married” couple to engage them: the shorthand for all organizations to address married couples (benefits, guardianship, healthcare) saves tons of time and money for all involved. To have to have special consideration for each and every couple (or more than 2) would cost a lot for every HR, financial, and healthcare system out there.

    • plutosdad

      Also see my link below, marriage has been around not only far longer than the church, but longer than any organized religion. And during the heydays of the Roman Republic was very much a civil institution

  • Kristen

    Well, I grew up Catholic so I’m entirely comfortable separating civil marriage and sacramental marriage.

    If you don’t like using the word sacrament there, okay fine. But don’t we want to say that Christ is somehow present in a vowed partnership between two Christians in a deeper and richer way than in a partnership that doesn’t recognize or honor Jesus? This seems a slam-dunk to me. Both the Christian marriage and the not Christian marriage, those are both things and they’re good things but there is a deep and powerful difference. And if, say, two Hindus were to come up to the church office and want to schedule their wedding it seems entirely appropriate to direct them to City Hall saying “that isn’t the sort of thing we do here.”

    And yet I don’t think any of us would want to say that City Hall should not issue a marriage license to these nice Hindus. Because this is a different thing than what the church does.

  • kenneth

    Civil unions and sacramental marriage should be entirely disentangled at every level. The two functions never should have been allowed to mix in the first place. Clergy have no business acting as state agents simply by virtue of their position, and the state has no business farming out the administration of its laws to private parties.

    Churches have no legitimate monopoly on the terms of these civil contracts, which is all legal marriage ever was, and the state should not tell anyone what “marriage” as a sacrament means. This long-running conflation of civil unions and sacramental marriage is a disaster, and one that was drifted into out of historical convenience. It created the delusion among religious that the state has some legitimate jurisdiction over some universal, quasi-religious immutable concept of “marriage.” At the same time, it leaves an opening for the state to meddle in the affairs of its clerical “agents.”

    There is simply no upside to this arrangement. Make civil marriage a purely governmental institution and religious marriage a purely religious one. If we truly need ministers to continue witnessing the legalities in some formal way, let them do so by virtue of state status as a notary public (or something similar), and not by virtue of ordination. It would be better to separate them entirely, however.

  • Mary Morrison

    It works perfectly well in France to have a civil ceremony (required, as above), and those seeking to have their marriage blessed by the church are free to do so. It also relieves the priest or minister of having to act as an agent of the state. I further believe that same sex marriage does not require quotation marks around it. My friends in same sex marriages are just as married as anyone else, and considerably more loyal and devoted than most. I would not dishonor their commitment with improper punctuation.

  • MikeN

    Same here in Taiwan; the official marriage is a civil affair; anything beyond that is up to the couple.
    On a side note, a few years ago in Japan the fad for western-style “white weddings” was so great that older Western men could make a few bucks on the weekend by being dressed up as clergy and presiding over faux wedding ceremonies.

  • Mary

    Well, in Canada, we DO have same sex marriage, and it works like this: civil marriage is accessible for everyone, including same-sex couples. This is done in town halls, at least in my province (Quebec).

    Those who want a religious marriage (of whatever religion) get married through their particular faith. Then the priest deals with the paperwork, both religious and civil. Same-sex couples usually don’t have access to religious marriage, but that’s because of the tenets of the religions that forbid it; it’s not because it’s illegal.

    It works like a charm. It doesn’t take anything away from anyone.

  • plutosdad

    Have you read this? For a long time it was separated. So there should not be much of a problem going back.