Skip to comments.Can “privatized” marriage work?
Posted on 02/14/2014 1:18:08 PM PST by SeekAndFind
Years ago, I advocated that the best way to protect the traditional definition of marriage was to get government out of the business of it. Many traditionalists objected to it, and there are good arguments for conserving the tradition in law as the basis to keep families and children prioritized over the desires of adults seeking government recognition for their own non-traditional relationships. That argument relies on the moral force of law in the culture, but the momentum of the culture clearly has accelerated in the opposite direction, and moral force in the definition of marriage with it.
The greater issue for traditionalists, and the bigger risk, will be that religious institutions will find themselves trapped by the changing definitions. We’ve already seen evidence that participants in the wedding industry will find themselves under fire for sticking with their own values in choosing when and how to participate in the market. Ministers occupy a rather unique position in the confluence of state and church, operating in an official capacity as an agent of the state to certify marriages. Even though advocates of same-sex marriage insist that they don’t want to force churches into performing these ceremonies, it’s not going to be long before such challenges arise, and will push churches out of the marriage business instead of government — which is a big reason for getting government out first. And if you doubt that this will become an issue, just look at the HHS contraception mandate and their treatment of religious organizations.
Francis Beckwith disagrees, calling such an arrangement unworkable, and insists that traditionalists need to keep fighting to retain the historical definition of marriage instead:
Imagine, for example, as one of my former doctoral students once suggested in a dissertation that defended this idea of privatization, that marriage becomes exclusively the domain of the church. Suppose Bob and Mary, both devout Catholics, marry in the Church under the authority of canon law. Over the next decade, they have three children. Mary decides to leave the Church, however, to become a Unitarian and seeks to dissolve the marriage. Because the Church maintains that marriage is indissoluble, and Mary has no grounds for an annulment, the Church refuses her request.
Mary then seeks the counsel of her pastor at the Unitarian Church. She tells Mary that the Unitarian Church recognizes her marriage with Bob, but maintains that divorcing him is perfectly justified, since the Unitarian Church holds that incompatibility is a legitimate ground for divorce. So, Mary now requests a divorce from the Unitarian Church, and it is granted. The Church also grants her full custody of her children, since, according to Unitarian moral theology, what Bob teaches their children about contraception, abortion, and same-sex relations are hate sins, and thus is a form of child abuse.
So, who wins in this case? Suppose you say that because it was originally a Catholic marriage, it should remain so, even if Mary changes her religion. But who has the authority to enforce such a rule? The Catholic Church? The Unitarians? What if the Catholic Church agrees to it, but not the Unitarians?
Suppose Mary, on the authority of the Unitarian ruling, simply takes the children and moves out of state. Is that kidnapping? Can a Catholic ecclesial court issue an order to a local Knights of Columbus office to return Mary and her children to their original domicile so that she can be tried in an ecclesial court for violations of canon law? And if she is convicted, can the Church put her in an ecclesial prison or fine her?
Suppose that Mary not only leaves with all the children, but also empties the couples bank accounts and donates their contents to the Unitarian Church? Is it a crime? Who decides? Imagine that all these issues were addressed in private contracts that Bob and Mary drew up and signed upon the commencement of their marriage in the Catholic Church. Who has the power to make sure these breaches are remedied and compensation given to the wronged parties?
The problem with all of these scenarios is that they are based on a fundamental misunderstanding of what privatization means in this context. The issue is not who gets jurisdiction over the secular consequences of relationships, but the definition and recognition of what a marriage actually is. Disconnecting the government from the authority to define and certify “marriage” does not involve moving all of the jurisdictions for the consequences of marriage to the church, synagogue, or temple. Privatization basically says that the government has no role in “certifying” or promoting relationships between consenting adults, but rather is limited to the enforcement of contract law in disputes between them. The status of “marriage” then becomes a strictly voluntary matter of recognition by one’s faith community, based on the tenets of the faith.
The legal and property issues of cohabitation in any form would still lie with the state. Government still has the jurisdiction and the competence for enforcement of contracts, both explicit and implicit. Cohabiting couples who never marry at all would have to resolve their property and custodial arrangements if and when they part ways, assuming they have children at all. If they can’t resolve those interests amicably, they go to court regardless of their marital status.
This would be no different if recognition of marriage were left to the churches. The state would still settle the contract issues in a dissolution of the partnership; the only issues left to the churches would be the religious implications of the end of the marriage, and that would be on a purely voluntary basis, as is faith now. To use Beckwith’s example, a Catholic who got married in the church but later ended the relationship and started another would have to deal with the Catholic Church on his/her eligibility to remain in communion, not on custody of children or property. If the Catholic became a Unitarian, it’s no longer the Catholic Church’s issue. (That happens already, by the way.)
This is all academic, because few in this debate want to give up state control of marriage, although a few lawmakers in Oklahoma are considering it. There are good reasons for traditionalists to stay engaged (if you’ll pardon the pun), but this argument isn’t one of them.
I’ve tried some of these same arguments here over the years.
They were not... well received. No matter the logic, or the protection for our Religious institutions, they insist that the same government that is currently buggering things up is the only way to protect religious marriage.
They never seem to see the irony.
Suppose all relationships are fixed by contract. Who enforces the contract, then? Who decides whether the contract should be enforced? The government, that’s who.
An analogy can be made with wills and prenuptial agreements. Parties enter the contracts, but if there is a challenge, then a judge can declare the contract void, in whole or in part.
There’s also a similarity with the “Release of Liability” that one has to sign in order to engage in any recreation activity. Everyone signs it, but if a person is injured, it’s extremely common for him to sue the vendor, and not unusual for a judge or jury to rule that the release is invalid.
I don’t see it happening.
I was thinking about this issue just today in light of the many decisions of court judges striking down state gay marriage bans.
I agree with Ed M. in that the only way that traditional marriage is going to survive as something separate and apart from recognized “gay marriage” is to rename and reiterate what is meant by marriage in terms of being sanctioned by the church. After all, isn’t this what the left does? They have been successful in twisting and changing the meanings of words, until the word’s contemporary meaning bears no resemblance to it’s historical meaning.
The homosexual community is ultimately looking for acceptance of gay marriage and wants nothing more than their marriages to achieve equality with traditional marriages that are sanctioned by the church and between a man and woman. It’s not enough for gay marriage to be recognized by the government—it must be accepted and approved of by all (including the church).
I suggest that we change the word we use to describe the marriage between men and women (blessed by God) to “holy matrimony,” “natural marriage,” or something similar. Homosexuals can have their marriages or unions recognized by the government as a legal arrangement having tax and property rights implications, but the church should also have their own term that goes above and beyond this.
RE: Suppose all relationships are fixed by contract. Who enforces the contract, then? Who decides whether the contract should be enforced? The government, thats who.
There ya go. What if a company or a business refuses to recognize your “private” marriage and refuses to extend your benefits to your spouse?
Of course there will be lawsuits and government will step in.
I assume that the company's freedom to make that decision would be eliminated. Some sort of standardization would be enforced by regulation.
I think the author makes some good points, but I simply don't think it would work in real life. For example, suppose a devout Christian couple gets married in their church. At the same time, they form a contractual partnership that specifies, among other things, that, if they separate, neither of them can enter another relationship unless it's accepted by their church - sort of like a non-compete clause when a person leaves an employer.
(This would fit the Catholic doctrine that a marriage may be declared null if it does not meet the requirements for the Sacrament, and the understanding of other denominations that divorce and remarriage is acceptable in cases of adultery, abuse, etc.)
Is a judge going to enforce that contract if one of the parties wants to break it?
In the Catholic Church, marriage is a sacrament. You have to go to confession (another sacrament) before you can receive the sacrament of Holy Matrimony. Try to reconcile that with homosexuality.
Why are there marriage licenses? Has anyone ever had a license suspended or revoked for being bad at marriage?
Look above at the article of Aussie cops arresting an Iman for marrying off a twelve-year old girl. Hope it need not happen here with an oh-well.
Years ago, I advocated that the best way to protect the traditional definition of marriage was to get government out of the business of it.
Morrisey is full of crap. The government has a tremendous interest in keeping marriage as the fundamental cornerstone of society.
Healthy marriages provide a great economic, social and moral benefit to any nation. And this has been true for all civilizations throughout history.
Get the government out of the marriage business? Sure. Lets start with LBJ and his Great Society Progams; lets replace the father with a welfare check; lets initiate no-fault divorces and now same sex marriages.
And what do you get? What is the result of taking the government out of marriage?
Look around folks. Its a liberal wet dream with welfare dependancy, illegitimacy, crime, lower educational standards, and a country on the brink of a total financial collapse.
As goes the American Family - so goes America.
Marriage is already privatized. Church’s, Sea Captains, and Justices of the Peace perform the marriages not government. Government simply records it.
The battle is over what Government will recognize as marriage and family and you can’t divorce Government from that. Government will always be the arbiter of failed relationships, especially those involving children.
And you’d have to modify the tax code and eliminate references to spouses and dependents. Otherwise we’re right back to who qualifies as a dependent and what’s defined as a family.
Gay "marriage" is just one weapon being used by the left to destroy the (conservative) church and the family. Education would also need to be completely privatized.
And how would privatization help the Baker who refused to bake a wedding cake to honor a gay couple? It wouldn’t.
Government would still be in the business of preventing discrimination by private businesses. So how does privatizing marriage keep government from getting turned upside down on what constitutes discrimination? It doesn’t do a thing to prevent that.
So government would still be ordering the baker to violate his conscience and bake a cake for the sodomic wedding.
Valuable insight IF the society accepts that government at the Federal level does NOT trump state or local.
...not the case in Amerika
RE: Valuable insight IF the society accepts that government at the Federal level does NOT trump state or local.
How does this work if a couple moves to another state that have different recognition of marriages?
IIRC, in Holland government officials conduct all marriages.
Religious persons go ahead and have the government ceremony; but they don’t consider themselves truly married until they have their second, religious ceremony.
(Both parties return to their respective homes after the state ceremony and don’t live together until after their religious ceremony— which may be a few days later.)
Being thus “married” by the state is considered just like getting a license; the real “marriage” takes place only later.
Secular people can do as they wish.
IOW, religious people are free to live by their own laws, without the interference of the government.
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