Doug Kmiec Is Right: Clergy Should Not Perform (Legal) Marriages

Doug Kmiec Is Right: Clergy Should Not Perform (Legal) Marriages April 22, 2009

Last week, Doug Kmiec went on Colbert and became the next in a long line of people: Those who’ve gone on Colbert and said what I want to say on Colbert. Kmiec said what more and more of us are saying: Churches and clergy should get out of the marriage business. And by that I mean the legal marriage business.

So, let’s think about this. I’m an ordained clergyperson (that’s right, guilty as charged: I don’t believe in ordination, but I’m ordained. I may spontaneously combust at any moment). When I was a pastor, I performed half a dozen weddings per year. And, at each, I was acting as an agent of the state — I signed the marriage license as a representative of Hennepin County and the State of Minnesota.

In no other fuction as a clergyperson did I function as an extension of the government — not when I was baptizing, burying, counseling, or communing. Only when performing a wedding did I, with the stroke of a pen, make official a legally binding contract that, in the eyes of the state, allowed that couple to enjoy certain privileges like the ability to file joint tax returns, visit one another in the hospital, and receive joint health care benefits from one of the partner’s employers.

Readers will know that I am most decidedly not a member of the Hauerwasian Mafia. I tend more toward an American postmodern pragmatism when it comes to church-state relations. However, I do find it odious that clergypersons are called upon, in this one instance, to act as agents of the state.

Many commenters have already noted the strangeness of “legal” marriage in our society. It is incentivized in order to benefit society by promoting monogamy. Monogamy, it is held in Western society, is better than the alternatives — we all benefit when human beings are monogamous.

At first blush, it would seem that this has to do with procreation. But the facts just don’t bear this out. In fact, at this point, any man and woman of legal age and not first cousins or closer in relation can get married and enjoy the benefits thereof. The state doesn’t care if Anna Nicole Smith and J. Howard Marshall ever consumated their marriage. Intercourse or not, they were married, and the Supreme Court ruled that Smith (now Smith’s daughter) is entitled to a portion of Marshall’s estate.

So enough of the argument that same sex marriage should be forbidden on the grounds that it will destroy “traditional” marriage and all of society because same sex partners cannot procreate. On that basis, we should legislate against infertile men and post-menopausal women getting married.

Furthermore, the argument that this is a slippery slope to polygamy, polyamory, and bestiality is ludicrous. The reason to legalize same sex marriage is actually to enshrine human-to-human monogamy in law.

The real solution is to separate legal marriage from religious marriage. The state can and should incentivize monogamy — both same sex and “opposite marriage.”

Clergy and churches, on the other hand, should have no part in legally-binding contracts. Instead, religious professionals should bless and sanctify unions and partnerships that fit within their religious traditions as part of their sacerdotal functions.

[UPDATE: In the meantime, as states continues to pass bills legalizing same sex marriage (yes, the dominoes have started to fall, and no one’s going to push that Sisyphan ball of wax up the hill again), it seems imperative that clergy, who are still acting as agents of the state, are specifically protected in said legislation from being prosecuted under state anti-discrimination statutes. There are cases already in which wedding photographers have been sued for refusing, on religious grounds, to shoot a gay wedding.  It seems quite likely that clergy would be subject to the same litigation if they are not a specifically protected class, under the freedom of religion clause of the First Amendmen. In other words, same sex marriage legislation should be carefully and thoughtfully crafted.

Or, better yet, clergy should stop performing legal marriages.]

Relevant Video:

The Colbert Report Mon – Thurs 11:30pm / 10:30c
Douglas Kmiec
Colbert Report Full Episodes Political Humor Gay Marriage Commercial

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