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Why Privatizing Marriage Canít Work
The Catholic Thing ^ | February 14, 2014 | Francis J. Beckwith

Posted on 02/16/2014 2:27:09 PM PST by NYer

An important discussion is occurring among young Evangelicals over whether the government should even be in the marriage business. According to those who are advocating this option, the most important reason for commending state withdrawal is that it seems to promise a permanent vacation from the most contentious battle in the culture wars. You can still believe that same-sex conduct is immoral and that Christian marriage is between one man and one woman while at the same time saying that you advocate “marriage equality,” since if no marriage is legally recognized, then everyone is “equal” to pursue his or her vision of the good life without interference from the state.

In other words, you can in good conscience put an equal sign on your Facebook page, in order to announce to all your progressive college friends that you are not a dangerous bigot like the rest of your faith community, while telling the members of that same community in private that you support the biblical view of marriage. You can be, to borrow a phrase from another cultural dispute, “prochoice but personally opposed.”

It’s easy to understand why young Evangelicals find this approach so attractive. Who, in their right mind, would want to bring upon themselves the derision and marginalization that typically attends embracing views that are not in cultural ascendancy? In the age of social media, the once dreaded vice of succumbing to peer pressure, as they called it when I was a kid, has been relegated to the dustbin of history. Today, peer-pressure is now a virtue, with its own Facebook page and “like” button.

The baby-boom generation that once decried the machinations and political power of “the Man,” and called for all right thinking people to resist him, has become “the Man,” and now calls for all right thinking people to embrace his machinations and political power, or else.  The cultural avant-garde that once told its peers to open their minds and “protest the rising tide of conformity” now tell its children to set aside their critical faculties so that they are “not on the wrong side of history.”

Young Evangelicals are not stupid. They see the writing on the wall, and they don’t want to drown when the approaching cultural tsunami hits land. Their suggested compromise makes an enormous amount of sense to them. Unfortunately, it cannot work.

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.

        Who's on the wrong side of history now?

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 couple’s 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 only way to resolve these disputes is for the state to intervene.  What to do with children, property, state residency, freedom of movement, etc. when marital relationships break down are public issues. They are not private ones. Consequently, in such a privatization of marriage scenario, the state would actually become more intrusive into ecclesial matters than it is at present.

In order to resolve these problems, it would have to spell out the limits and scope of ecclesial jurisdictions, not to mention what religious bodies are permitted to do with married citizens from different religious traditions that hold contrary perspectives on everything from child-rearing, spousal authority, and religious training  to culinary practices. 

Despite their best efforts, there is no high ground to which young Evangelicals – or any of us – can retreat that will not be covered by the cultural tsunami.

TOPICS: Evangelical Christian; Religion & Culture; Religion & Politics
KEYWORDS: catholic; marriage
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Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University, where he also is co-director of the Program on Philosophical Studies of Religion

1 posted on 02/16/2014 2:27:09 PM PST by NYer
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To: Tax-chick; GregB; Berlin_Freeper; SumProVita; narses; bboop; SevenofNine; Ronaldus Magnus; tiki; ...


2 posted on 02/16/2014 2:27:36 PM PST by NYer ("The wise man is the one who can save his soul. - St. Nimatullah Al-Hardini)
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To: NYer

Good article.

3 posted on 02/16/2014 2:38:24 PM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: NYer

He makes several incorrect assumptions.

For example, the Catholic church has long held that Catholic marriage are indivisible, except through annulment. And if Catholics divorce anyway, the church does not have to recognize that divorce so far as to permit them to remarry in a Catholic church.

That is, church rules apply within a church; but if you break those rules, the church is no longer obligated to treat you equally with those who obey the rules. But all, still, within the territory of the church.

So it is not an unreasonable proposition for the Orthodox and conservative churches to reach a “moral agreement” about marriage, if not divorce.

This moral agreement would say that they all agree on the minimum standards for marriage, to which individual religions could add criteria but not remove criteria. And as such, they would recognize only their own marriages and those of other Orthodox churches.

So “Mr. and Mrs.” would be honored terms within all of them, and mutually recognized. But important, all other marriages would be rejected as legitimate.

This would mean secular as well as liberal marriages not following the rules would *not* be recognized as “real” marriages.

There would be no problem with a religiously married couple to *also* have a secular marriage, but as far as the churches were concerned, only their “real” marriage would be recognized.

Otherwise, divorce, whether or not recognized today, would still be up to each religions’ rules. It could be done ecclesiastically, or secular, but it would be up to each religion to accept it or not.

4 posted on 02/16/2014 2:40:39 PM PST by yefragetuwrabrumuy (WoT News:
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To: NYer
The mistake Beckwith makes is in assuming that the state couldn't enforce contracts and neutral child custody laws without recognizing marriage. I'm an attorney and I can assure you that nothing could be further from the truth. The state courts enforce child custody and support laws in relation to all children within their jurisdiction, without regard to whether their parents were ever married to each other. As to property and future support between the parties, that should be based on contract.

We don't need the state in our marriage laws.

5 posted on 02/16/2014 2:48:25 PM PST by Gluteus Maximus
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To: NYer

Beckwith is, per usual, a tower of common sense. As for me, I think I will begin to refer almost exclusively to the term, *Sacramental Matrimony*. Whenever the subject is brought up I will change it from marriage to Matrimony....leaving the impression that Sacramental Matrimony, as recognized by the Church, is the REAL thing and offers the couple FAR more.


6 posted on 02/16/2014 3:09:59 PM PST by SumProVita (Cogito, ergo....Sum Pro Vita - Modified Descartes)
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To: NYer

You can’t privatize marriage because government will always want to know, and often be dragged into the decision of, who gets the property when the marriage ends (and thanks to death they ALL end at some point). That’s the reason government is in the marriage business in the first place, and you can’t get it out.

7 posted on 02/16/2014 3:14:02 PM PST by discostu (I don't meme well.)
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To: NYer

With more kids born out of wedlock than not the state regularly decideds custody and child support issues absent a state marriage license, why would it not continue to do so? The state also settles property disputes for a number of non-married people, room mates and business partners come immediately to mind. What prevents a church married couple from having a civil contract that defines what will happen to property in the event of a dissolution of a marriage?

I have heard, and can believe, arguements to the effect of if we are a society so corrupt as to marginalize marriage and celebrate homosexual faux-marriages that we are spiraling the drain. But other than the “if we have to privitize marriage we are so far gone it doesn’t matter” arguement I have yet to have someone present a serious downside to a policy privatizing marriage.

8 posted on 02/16/2014 3:21:32 PM PST by RightOnTheBorder
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To: RightOnTheBorder

When we abandon morality, government fills the void left behind.

9 posted on 02/16/2014 3:22:36 PM PST by dfwgator
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To: trisham

Count me in the camp that doesn’t think the state should be in the marriage business.

If there isn’t a penalty for not getting a license, why are we getting a license?

Marriage is a religious sacrament, so why debase it will a sodomite license?

10 posted on 02/16/2014 3:37:25 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: discostu

Millions of people shacking up would appear to be proving you wrong.

11 posted on 02/16/2014 3:39:12 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: NYer

Because at this point, I strongly suspect the government would never go along with it.

12 posted on 02/16/2014 3:41:30 PM PST by RichInOC (2013-14 Tiber Swim Team)
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To: SampleMan


One way or another the government winds up involved and they wind up defining the relationship. The best you can hope for is that the religious community and the legal world use different words for their half of the same thing.

13 posted on 02/16/2014 3:44:43 PM PST by discostu (I don't meme well.)
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To: NYer

I understand there are problems with the total privatization of marriage, but what alternative is there? We’ve all seen the lawsuits and such. The persecution of Christians using the legal system is only going to spread.

Obviously we’d ideally want a Russian style marriage system where there is no threat from abnormals. But it doesn’t exist here. There just isn’t the climate for it right now.

How do the Amish deal with marriage? I’d assume their marriages are totally privatized, with no input from the Ohio authorities.

14 posted on 02/16/2014 3:47:16 PM PST by Viennacon
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To: discostu

I don’t follow your point. Palimony is really no different a case than a disagreement/settlement between business partners, roommates, or siblings.
I don’t need a license to be a sibling do I?

15 posted on 02/16/2014 3:59:29 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: SampleMan

Palimony is the result of 2 people who were shacking up and then split up and couldn’t manage to divide the property without “help” from the government. If you government out of the marriage business eventually the dissolution of these “private” marriages will drag the government right back into it. Did you notice how the other entries in your list all involve some level of legal documentation to START the relationship. That documentation is there to help the government dissolve the relationship, though palimony shows they can decide the documentation is implied. This is how government got involved in the marriage business in the first place, if you try to get it out you’re just rolling Sysphus’ rock back up the hill. In short order there will be enough deaths and divorces to get government right back in it.

16 posted on 02/16/2014 4:13:22 PM PST by discostu (I don't meme well.)
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To: discostu

To my knowledge, roommates do not require documentation, neither do siblings, and frankly neither do business partners.

17 posted on 02/16/2014 4:25:59 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: discostu

The court system currently handles the affairs of unmarried people; de facto, a marriage license isn’t required.

If the state won’t recognize my definition of marriage, then why should I recognize theirs? Any desired legal contracts can be written up without a marriage license, providing just as much benefit vis a vis the state.

18 posted on 02/16/2014 4:31:17 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: NYer

He’s right. Leaving marriage to your church or a contract is ideal but somebody has to manage the breakups. Unfortunately this is what governments do.

19 posted on 02/16/2014 4:34:27 PM PST by jwalsh07
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To: jwalsh07

Governments manage breakups all the time where no marriage has occurred. Child custody, property, all of it. There’s no reason that would change. In fact, there might be less government involvement if couples can work that stuff out on their own.

20 posted on 02/16/2014 4:41:09 PM PST by old and tired
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