Should the government “get out of the marriage business”? Jennifer Roback Morse explains the public function of marriage in “Privatizing Marriage Is Impossible”:
Marriage is society’s primary institutional arrangement that defines parenthood. Marriage attaches mothers and fathers to their children and to one another. A woman’s husband is presumed to be the father of any children she bears during the life of their union. These two people are the legally recognized parents of this child…. This is an intrinsically social, public function of marriage that cannot be privatized….
If no children were ever involved, adult sexual relationships simply wouldn’t be any of the state’s business. What we now call marriage would be nothing more than a government registry of friendships. If that’s all there were to marriage, privatizing it wouldn’t be a big deal….
Why wouldn’t private contracts between couples be enough?
Disputes that arise between the contracting parties must be resolved by an overarching legal authority. Let’s face it: that overarching legal authority always will be some agency of the government. “Getting the government out of the marriage business” amounts to refusing to define marriage on the front end. But the state will end up being involved in defining what counts as a valid marriage or parenting contract, on the back end, as it resolves disputes. We cannot escape this kind of state involvement.
No-fault divorce provides an analogy. No-fault divorce allows one party to end the marriage bond for any reason or no reason. In effect, the state redefined marriage by removing the presumption of permanence. Marriage became a temporary arrangement rather than a permanent union of a man and a woman. No-fault divorce was supposed to increase personal freedom.
But the result of this legal change has been state involvement in the minutiae of family life, as it resolves disputes over custody, visitation, and child support. Family courts decide where children go to school, or to church. I’ve even heard of a family court judge choosing a teenaged-girl’s prom dress because the divorced parents couldn’t resolve the issue….
Furthermore, “leaving marriage to the churches” is a fantasy. At this point in history, churches are not the ultimate legal authority for anything. There is exactly zero chance that the state will permit religious law to be the legal authority for its members on issues such as custody, visitation, and child support.
(Dr. Morse continues her argument in “Privatizing Marriage Will Expand the Role of the State” and “Privatizing Marriage Is Unjust to Children.”)
The book What Is Marriage (Sherif Girgis, Ryan Anderson, and Robert George) agrees that “where marriages never form or easily break down, the state expands to fill the domestic vacuum by lawsuits to determine paternity, visitation rights, child support, and alimony,” and it adds this:
But the less immediate effects are even more extensive. As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows, and with it greater demand for policing and state-provided social services. Sociologists David Popenoe and Alan Wolfe’s research on Scandinavian countries shows that as marriage culture declines, the size and scope of state power and spending grow.
The state has a clear interest in marriage, and its involvement can’t be avoided.
If government involvement can't be avoided, and leaving marriage to the churches is a fantasy, then there's no way the government will let churches define marriage.
Are you saying the gay agenda has won the day?
Posted by: John Moore | January 14, 2014 at 04:24 AM
We're not asking for churches to define marriage, we're asking for the government not to artificially redefine it. We're asking for the natural and historical function of marriage to continue without the government forcing artificial constraints onto it. (See this quote from an article by Frank Beckwith for more on this.)
Posted by: Amy | January 14, 2014 at 07:14 AM
It's pretty funny to give fairly unlimited power to a given entity and then complain when that power isn't used in the manner you'd like.
Posted by: poppies | January 14, 2014 at 08:22 PM
Why is that, Poppies?
1) If a given entity abuses the power we grant it, why is it "pretty funny" if we object to the abuse?
2) We haven't given "fairly unlimited" power to the government. The power the government does have is derived from the continued consent of the governed.
Posted by: Mike Westfall | January 14, 2014 at 09:16 PM
Poppies, the whole point is that a strong marriage culture limits the power and interference of the government.
Posted by: Amy | January 14, 2014 at 09:32 PM
The Church can't enforce anything directly, that's true.
But the state cannot dictate the conditions under which the Church conducts its religious observances so long as the Church is not, in the process, performing a state function (creating a civil marriage).
Because of this, the church could demand that couples wanting to be joined in a church sanctioned union sign a fairly comprehensive set of legal contracts. This might include getting a civil marriage first, or it might preclude that. But in all events, no contract, no ceremony.
The Church would also be free to refuse communion or enact other religious sanctions on couples who attempt to skirt the religious requirements of marriage by not having a church-approved union, getting by on a civil marriage only.
Furthermore, the church could insist on one-man-one-woman unions only. Those wanting a union between a man and a man or three men and two women or between two men, a dog and a bridge will have to settle for a civil arrangement if and when those become available and bear the religious sanctions already mentioned.
And since the church would not be providing any legally protected state benefit, it could not be sued for refusing to perform a marriage ceremony.
This is probably the future of religious marriage.
Posted by: WisdomLover | January 15, 2014 at 05:59 PM
Mike, "abuse" implies going outside the bounds of what is allowed. The State has total legal allowance to govern however it sees fit. It is, in fact, the final legal interpreter of its own limits! Accordingly, it's funny/strange to complain about developments that are completely in line with the system you've decided is justified. Further, the idea of mass "consent" is fundamentally incoherent. It's simply a might-makes-right situation right now, and if your particular cohort doesn't have the might, you'll either need to get it or push for a system that doesn't allow for a monopoly on legislation and force.
Amy, we don't have a strong marriage culture and are unlikely to get one anytime soon, so philosophically supporting a system that forces contemporary mores on every individual may not work out so well.
Posted by: poppies | January 16, 2014 at 03:23 PM