Is Civil Marriage a Right?

Is Civil Marriage a Right? March 31, 2012

Last week the European Court of Human Rights ruled that same-sex marriage is not a human right guaranteed by the European Convention on Human Rights. In addition, according to The Daily Mail’s write-up of the case, the court ruled that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples.

Before I get to the main point, I have to say that last part struck me as bizarre. There’s not a Catholic church in the country that would consent to marry me to another atheist, whatever the gender. There are a number of prerequisites for sacramental marriages, and I have no idea why civil same-sex marriage would obligate the Church to officiate anymore than civil marriage for divorcees would obligate the Church to marry people in the absence of an annulment. Either there’s something missing from the Mail’s analysis, or the court just created a huge and under-reported constraint on religious liberty.

That worry aside, when I read the article, I realized I wasn’t certain whether I thought civil marriage (for any gender pairing) really ought to be considered a human right.  I guess a big part of the question comes down to whether you think marriage comes out of our right to freely contract with others and have the State enforce those contracts.  In that case, the State has an obligation to recognize and enforce the bond we create between ourselves and individuals, but it has no duty to single out a particular kind of contract as ‘marriage.’

This wouldn’t mean the State couldn’t acknowledge marriage in law, in the tax code, etc, or that it wouldn’t be prudent to do so.  It only means that it doesn’t have to and that, in the absence of the State’s involvement or blessing, people can conduct themselves as they wish.  People can get recognition of their commitment to a spouse from a church, from their family, or from their community at large.

The ‘officialness’ of the marriage would be enforced by whatever  constraints the couple chose to be subject to at the beginning of the marriage.  Essentially, everyone would be picking from a menu of covenant marriages, where the restrictions were enforced either by contract or by social opprobrium.

I don’t know that I have any major objections to this libertarian model of marriage.  I’d like for people to have more freedom to specify who gets to visit them in the hospital, who gets to inherit, and who has joint custody of their children irrespective of whether that person is a romantic partner.

That’s obviously not the system we have, and I think most of the litigation about gay marriage has nothing to do with inalienable human rights.  The government can have an interest in marriage regardless of human rights, insofar as the regulation and recognition of marriage is an opportunity for soft paternalism, so the question isn’t whether government should be involved. The legal question (at least in the US) is, once the govenment is involved, is it allowed to make a category that deliberately excludes a protected class.

What I’d like to know is whether you all think the government’s involvement in marriage is a matter of prudent social engineering or of moral obligation.

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  • g

    I think it’s not so much that there’s “something missing from the Mail’s analysis” as that they simply made that bit up. It’s not true. Not even a little bit. (Not being in the UK, you may perhaps be unfamiliar with the Daily Mail’s startling levels of mendacity.)

    • The decision is so-far published only in French, which I don’t read. So I’m piecing this together from guesses and secondary sources and may well be wrong. But I think the tiny kernel of truth is probably this:

      In this case a mother and her lesbian civil partner were suing for the partner’s right to adopt the mother’s daughter. The court ruled it was OK for French law to discriminate on the legal form of the partnership (civil partnership vs. marriage), even if only heterosexual couples can marry, but not on the same-sex nature of the relationship per se. So French law passes, because heterosexual civil partners can’t adopt their partners’ children either. But once same-sex marriage is allowed no graduation is possible, the rights of same-sex spouses must be identical to those of opposite-sex spouses.

      This might be problem because Englishmen have a legal right to marry in the church of England. That church actually would marry to atheists. There is a statutory exception for remarriage, where it’s basically up to the vicar. But then divorcees are not a protected class. So if same-sex marriages are introduced in England there might be as case to be made that a similar statutory exception for same-sex marriages might violate the court’s interpretation of the convention. Churches not operated by the government would be unaffected though.

      And the funny thing is, within the logic of having an established church I’m not even sure I disagree with that conclusion. I’d tend to see it as a reductio ad absurdum though.

  • Patrick

    I’m a bit confused as to how to answer your question. Inalienable rights don’t actually exist. Its just a terminology we use. Looking for coherency in the discourse of rights is like looking for coherency in the discourse of morality. Both are systems in which we treat our emotional reactions as if they were sense impressions akin to vision or hearing, even though they’re not. Error theory is inescapable.

  • anon atheist

    The question is imprecise and does not help the issue. The relevant question is for example whether it is a human right to not to be forced to testify in court against your spouse or whether it is a human right to bring your spouse with you into another country if only you have a visa. In a country that forces parents to testify against their own children in court to me it is a ridiculous question to ask whether spouses should have the right not testify against each other. So despite the ruling of the US supreme court civil marriage should not be a human right in the US.

    • I agree parents shouldn’t have to testify against their children. In fact I thought it a fairly obvious right and am shocked to hear the US don’t recognize it (and to have it confirmed by the first few hits of my lazy internet search).

      That kind of reasoning leads to the dark side. That a commonwealth disrespects the rights springing from filial relationships is not a good reason to also disrespect the rights springing from marriage. To take a more crass analogy, we don’t punish people who acquire sex by fraud and there might be good reasons for that. But that is surely not a good reason to go on and decriminalize doing the same by force.

      I know all real people work that way and it is one of the main lubricants of slippery slopes. And on an individual level I’m guilty of using that argument to justify evil to myself, so perhaps I’m a bit hypocritical in noting this. Still, this is a type of argument we really should resist.

  • deiseach

    I think the confusion about the law requiring churches to permit same-sex marriages comes in from the fact that in England ministers of religion act as civil registrars at a wedding as well as officiants of their denomination (see this excerpt from the U.K. Government information website: “If you wish to be married in the Church of England or Church in Wales, speak to the vicar of the church in which you wish to marry. There is usually no need to involve your local register office”) and that in law, the Church of England is the state church – “the Church of England by law established”. Also, it’s further complicated in that apparently nowadays even if you’re not baptised, you too can marry in church (previously, the rules were that you had to belong to the parish of the church where you wanted to get married, but a combination of people wanting to get married in picturesque local churches plus churches being perennially strapped for cash, on top of the relaxation of the law on where marriages could be held meaning that you weren’t stuck with a choice of local church or registry office, so that the churches were now competing with hotels and public parks and beaches and anywhere else as wedding venues, meant that the rules were relaxed) – see the Church of England website on this.

    All of which means that if a same-sex couple want to rent out a church to have their wedding and are refused, it’s quite possible they might take a case under equality or non-discrimination legislation. After all, (1) it would be a legal ceremony that they are entitled to (2) the church does not require couples to be parishioners (3) the church is acting as an arm of the state in registring civil marriages and cannot discriminate.

    There has been at least one case in the U.S. about this – a lesbian couple sued Ocean Grove Camp Meeting Association because it refused to hire out its boardwalk pavilion for their ceremony and won their case. Of course, this was more complicated than the usual because the premises wasn’t a church, it was a leisure facility property that belonged to the organisation and that they rented out for various purposes, not for holding religous ceremonies, but the principle has been established broadly – if you rent it out to straight couples, you have to rent it out to same-sex couples.

    The “Daily Mail” is notorious for these kinds of societal break-down scare stories, but it is not beyond the bounds of possibility; after all, there was a story (in the “Guardian”, which is to the left what the “Daily Mail” is to the right) about a gay clergyman possibly suing under equality legislation because he had not been made a bishop, and that’s much more to do with denomintional workings and religious interference than civil marriage laws.

    • Touchstone

      The Guardian can be pretty lefty, but it’s something of a smear to say that it’s the left-wing Mail. The Daily Mirror is the real left-wing tabloid. The Guardian, like the Telegraph on the right, has a definite ideological slant, but tends to uphold reasonable standards of journalistic ethics.

  • Even ignoring the religious aspect, I don’t think marriage can be reduced to a contract.

    A contract, for example, can always be instantly terminated by agreement of the parties. Even a hurdle as ridiculously low as the two-year waiting period of American covenant marriage simply couldn’t be established by contract. Also, there’s a reason we celebrate marriages much more intensely than, say, closing on buying a house, even if the latter is more of a commitment than the former in the present legal system. Marriage is supposed to be a thing and to be central to the spouse’s identity.

    Moreover, it’s a specific thing. For example, most of us would get a little squeamish on enforcing an agreement by which cult-members granted joint custody of their children to the cult-leader. Or maybe an agreement to sell custody for money. And while it’s clear spouses shouldn’t have to testify against each other it’s also clear we can’t give the same rights to an criminal syndicate organized as a group “marriage”. So there are differences between real and pretend marriage and the state is necessarily involved in recognizing them. And it should, of course, recognize the actual truth of what marriage is as the legal truth.

    In a society that has lost its consensus of what marriage is delegating the most controversial parts of that question to contract law may be practically inevitable. But that’s perfuming the festering stinking wound of that society’s social fabric, not healing it.

    • cary

      Is not marriage, at its core, just a contract with some regulation around it regarding number of parties involved, termination, inheritance and child custody? Thus , it seems to me that your concern is not really with it being just a contract, but with removing too many of constraints around it. I agree with the concerns you raised, and thus that, aside from some possible modification, these shouldn’t generally be mucked with.

      I definitely feel that the gender/gender identity of the two partners should not be a concern. Assuming we don’t care about gender & gender identity, it seems to me the next constraint that will need dealing with is that of having more than two parties to it, which is a thorny one indeed.

      Something I’d like to see is more specifics put into the contract – making it more of a combination marriage and pre-nuptial agreement. Some countries do a bit of this already. For example in Brazil you must specify how property is to be handled when you register to get married (see here for the fairly obvious list of options).

      • Part of this is just semantics. If you allow the regulations to be things normally not doable by contract you can go on to analyze the legal aspect marriage as a contract plus those regulations. But you could do the same to, say, a corporation. Why, its just a shareholder contract with some additional regulations on people receiving the shares at later times, liability, and future decision making. But then it’s just a word game. Marriage (or a corporation) is like a contract in involving a meeting of wills and unlike an ordinary contract in having consequences beyond those the parties could ordinarily dispose over. Neither aspect depends on how we call it.

        It’s similar with the constraint question. For example, no fault divorce used to be impossible and nowadays entering into a marriage not dissoluble that way is impossible. One could have long and fruitless arguments over which counts as more of a constraint, but looking at it as more or less constraints isn’t that helpful. Actually we want different constraints.

        But all of these semantic fights are irrelevant to my objection: Marriage necessarily regulates questions the spouses couldn’t individually decide, so there is no way to derive the freedom to marry from the freedom to contract or the regulations of marriage from general contract law. Which in turn means it’s just impossible to get the state out of marriage without abolishing all its privileges, which in turn would be tyrannical. And that again means selective libertarianism won’t give us any reprieve from collectively answering the question what marriage is.

        I do think the reactionary answer to that question is the correct one, mainly for natural law reasons, but in this thread I was just trying to show we don’t get to dodge the question.

    • leahlibresco

      But it is a contract as far as the State is concerned. I agree that it’s weird to have it be only this, which is why we need traditions and communities outside of our relationship to the State. But contract is as far as the civil law should go.

      • Well, then I await your post about why you changed your mind about covenant marriage, because your previous support of it is clearly incompatible with this position.

        • leahlibresco

          Can you expand? My support for covenant marriage is not that the State makes some normative claims about human relationships, just that individuals can use the power of the State to enforce contracts to make their traditions feel more concrete. In a perfect world, you wouldn’t need a contract to be bound to your marriage, but we’re bad at thinking about the future, so having that formality at the beginning makes you think about what you’re signing on to.

          • Anything regulated by contract is, by definition, regulatable by contract. So the parties can always make a new regulation by a new contract. And the new contract could simply consist in abrogating the old one. So anything that can’t be instantly terminated by mutual consent is more than a mere contract.

            Covenant marriage has a two year separation requirement for divorce even if both spouses agree on it. That is a ridiculously low hurdle but nevertheless one that could not be made by mere contract.

            So the state is clearly enforcing something beyond a contract.

          • leahlibresco

            I don’t know much about contract law. How does the state enforce covenant marriage if both people decide they’d rather divorce now?

          • Patrick

            Ok, slow down.

            Marriage contracts are not “contracts.” They’re legal documents from the state. The state is the one you have to go to in order to get a divorce, and if you don’t satisfy the state’s requirements for a divorce, the state just plain doesn’t give you one. That’s how divorce works. If a state’s covenant marriage law doesn’t permit divorce for the mere reason that both parties agree to one, then that’s that. No divorce for them.

            But! At least some states (maybe all, I haven’t surveyed) specifically permit the dissolution of a covenant marriage if both parties agree to the dissolution.

            See Arizona law for reference.


          • leahlibresco

            Thanks for clarifying and citing sources. I’m out of my depth.

          • IANAL, but I think Arizona is the exception here, recognizing agreement as an additional ground. The other two jurisdictions recognizing covenant marriage, Louisiana and Arkansas have exclusive lists of divorce grounds that don’t include mutual agreement. I would imagine the state enforces the law, like Patrick explained, simply by not granting the divorce.

  • deiseach

    Speaking of “a menu of covenant marriages”, you might be interested in an Old Irish legal text (dating from around the 8th century) called “Cáin Lánamna” or “Law of the Couple” relating to marriage contracts; obviously this comes from the Christian period in Ireland, but it is derived from a foundation of pre-Christian practices (as may be seen in the reference to divorce and secondary wives) and has a different slant than, for instance, the Anglo-Norman law that was imposed after the invasion of Ireland in the 12th century:

    “Question. How many pairings are there in Irish law? Answer. Eight: a lord and his base clients, a church and its tenantry, a father and his daughter, a girl and her brother, a son and his mother, a foster-son and his foster-mother, a teacher and his pupil, a man and his wife.”

    “Question: how many couples of cohabitation and procreation are there in Irish law? Answer: ten – (1) union of common contribution; (2) union of a woman on a man’s contribution; (3) union of a man on a woman’s contribution with service; (4) union of a woman who accepts a man’s solicitation; (5) union of a man who visits the woman, without work, without solicitation, without provision, without material contribution; (6) union by abduction; (7) union of wandering mercenaries; (8) union by criminal seduction; (9) union by rape; (10) union of mockery.”

    • Wow, that’s intriguing stuff. Very interesting that they classed the teacher-pupil relationship in with family and lord/tenants; we would never today put them on a par with each other. I’d love to see an enumeration of the responsibilities of all these parties in the various relationships. What did a teacher owe a student, and vice versa?

    • leahlibresco

      You can’t mention “union of mockery” without explanation.

      • Seriously LOL! I found it here — as you might expect, it refers to “any union between two people who are not of sound mind – in this case the law states that the person responsible for setting up such a union is bound by law to care for any offspring which may come from said union”

  • What I’d like to know is whether you all think the government’s involvement in marriage is a matter of prudent social engineering or of moral obligation.

    I’m going with social engineering (and legal simplification) all the way. From the state’s perspective, marriage is and always has been a mechanism for setting defaults for things like who inherits property, who gets custody of kids, etc. Without it, yes, people would have more freedom to decide these things, but they’d have to consciously make those decisions and set them down on paper. Given that 55% of adult Americans don’t have a will, most people probably would forget, or never bother, to do so. This could potentially lead to an enormous glut of court cases having to make individual determinations in every case where the person didn’t document their wishes. The existence of civil marriage puts some minimum defaults in place — most of which are the ones people would choose anyway if it were up to them, such as spouse gets the house and kids.

    However, with all the alternative forms of families that exist today, other laws have been/are being put in place that cover those situations, so maybe we don’t need civil marriage as much as we used to.

  • Bdet

    Marriage is God’s institution so why are you atheists concerning themselves with the logistics of it?

    • Marriage is God’s institution so why are you atheists concerning themselves with the logistics of it?

      I don’t think we’re debating the logistics of it so much as whether the government should be involved in it at all. If your statement is true, it seems clear the answer should be “No” (“Render unto Caesar” and all that). The problem with your statement is that plenty of pre-Christian societies and non-Christian societies had/have marriage as well, which seems to make it not God’s institution at all but rather one of men.

      • Bdet

        Yeah obviously marriage is “pre-Christian” since Christianity pertains to Christ who came to the earth much time after God created Adam and Eve, and thus the institution of marriage. I’m not debating that marriage is pre-Christian, but stating the fact that marriage is pre-government, pre-atheism, pre-homosexuality and so on…

  • Bdet

    Yeah obviously marriage is “pre-Christian” since Christianity pertains to Christ who came to the earth much time after God created Adam and Eve, and thus the institution of marriage. I’m not debating that marriage is pre-Christian, but stating the fact that marriage is pre-government, pre-atheism, pre-homosexuality and so on…

  • anon atheist

    I was not sure but after thinking about it I came down at the side that civil marriage is a human right. Because it should be a human right to not to have to testify in court against your spouse or not have your family being deported because only you are eligible for asylum.