I’ve returned from AAAS (jet lag and all) and I’d like to take a crack at one of the questions you guys posted in the Marriage Q&A post (if you’ve thought of a new question, I’m still watching that thread). Gilbert asked:
As far as I get it covenant marriage rests on the state refusing covenant-violating divorces. Otherwise it would be exactly like ordinary civil marriage: a promise of life-long commitment that can easily be broken without repercussions. So I suppose you support a separate legal accommodation for your favorite kind of marriage.
Now for the question: Would you give the same kind of statutory accommodation to other ideas of marriage? Can Catholics, for example, have a special marriage that is divorcable only under the conditions that lead to nullity in canon law? You previously said we Christians shouldn’t care about civil marriage because we can’t have control over it. But by the logic that allows covenant marriage, couldn’t we also have control over a special version of civil marriage?
…If yes, should the law refuse divorce to an apostate spouse who originally contracted that kind of marriage for religious reasons? Can we exclude gay couples from our special version of marriage? Can private enterprises give advantages to only one version of marriage? Can a church refuse religious marriage to people whose civil marriage license is under a different code than the one it endorses?
This question is mostly phrased in terms of Christianity, but Gilbert has has gotten to the crux of the (non-psychotic parts) of the debate over Sharia law: When should the government respect or enforce commitments made outside conventional contract law (including promises to be bound by clerical rulings)? My knowledge of this kind of jurisprudence comes mostly from accommodations civil courts make to rabbinical law, so we’ve got all the Abrahamic faiths covered here.
There was a case a while ago where a Jewish woman had her civil divorce snarled up in a religious one. Her husband refused to give her a get (a divorce under Jewish law) after they got a legal divorce. Withholding a get prevented her from remarrying under Jewish law, and he was reportedly using the get to force her to alter the custody agreement. Under Jewish law, a man can unilaterally withhold a get from his wife, not vice versa.
As far as I know, no one has ever tried to place the structure of a get into civil law, though there have been proposals to take reluctance to give a get into civil divorce settlements. The gendered nature of a get means we can’t imagine integrating it into modern marriage law, with or without reference to the authority of a beit din.
So, we don’t want to add in legal statuses that contradict the tenets of our civil society or take advantage of protected classes. And we don’t really want judges to be in the position of ruling that the strictures of a certain religion are unamerican at heart, so any attempt to codify novel structures of marriage would need to be done the same way covenant marriage was integrated, in an entirely secular framework.
I’d love to see different marriage types grow and compete. If nothing else, it would force people to think harder about what kind of binds they meant to place on themselves, if they couldn’t slide easily into the default. And some of these legal recognition of relationships might go beyond marriage. Cohabitators might want an easy-to-revoke legal status that lets them see each other in the hospital, be medical proxies, etc but doesn’t give them the tax breaks. Heck, platonic roommates might want the same thing. Let a thousand signalling mechanisms bloom.
One other caveat on this issue: getting the state to enforce religious law, even at its most innocuous, should always be an opt-in procedure. Going through the religious motions should never be taken as tacit consent to have the State enforce that tie. (consider poor catechesis, annulments given because people didn’t properly understand what a Church marriage entails, and consider how little you want the State to be in charge of making the judgment of your commitment to your faith!).
Ultimately, I think it’s a bad strategic move for churches to try to get their strictures into the legal code, even as opt-in contracts. If civil penalties are a better cudgel than eternal perdition, your institution has a bigger problem than contract law on their hands. Civil restrictions serve the unchurched. If a religious group wants to make use of them, it could be as a signal that the couple is aware of the church teaching on marriage and has seriously decided to be bound by it.