On Marriage, the State, and Religion (thinking again about Proposition 8)
In the U.S., absolute separation between church and state has been often more fantasy than fact. Nonetheless the principle of the separation of church and state remains crucial for any society attempting to be even slightly democratic, and it is one people should remain committed to, especially in those instances when it still remains mainly fantasy.
There may be no issue on which church and state are more intertwined than marriage. Many of the current debates we have regarding who can or cannot get married become caught in the tangled confusion between church and state on this issue.
Marriage, on the secular, public institutional level, is a contract entered into by the individuals who wish to enter into the contract. While the contract, once signed, should be enforceable under the laws of the state, the state should have no right to determine who can or cannot enter into such a contract.
It’s here that the issue begins to become confused.
For instance, the very idea of the marriage license suggests that the state has the right to determine who is qualified for that license. But I can’t see any ethical grounds on which the state has any such right. As long as the laws of the state are not violated, it shouldn’t be the business of the state to decide whether people can enter into contracts with each other. Contracts between individuals are the business of those individuals. As long as the persons entering into a contract are adults of legal age, it should not be the right of the state to determine who can sign that contract.
In fact, the state really has no right whatsoever to legislate the kind of sexual/romantic/family behavior that adults choose to engage in as long as that behavior does not harm the rights of others. So not only should gay marriage be allowed a legal contract, multiple people should also be allowed to sign such a contract with each other, whether together as a group under a single contract or in several such contracts simultaneously, as long as the terms of the contracts don’t legally contradict each other. The state’s enforcement of serial monogamy really makes no sense: you can have as many marriages as you like, but only one at a time.
Frankly, in many ways, on the secular level, the very idea of marriage is faulty. It confuses the issue of how people agree to share resources with the issue of what kind of sexual behavior they engage in. It would probably be best if marriage, as a secular term, ceased to exist, precisely because this particular confusion, as well as the confusion of church and state, is so central to what the term means. Although it’s hardly as poetic, the term “domestic partnership” seems at least adequate as a legal term to cover all contracts of this kind.
So: on the secular, institutional level, any adult should be allowed to sign a contract for a domestic partnership with any other adult or group of adults to share their resources in any legal way they see fit. As private individuals, they can call themselves married or anything else that they like. The state can enforce the terms of such contracts but has no right to limit who signs them.
Once the confused secular, institutional elements of the idea of marriage are more fairly and properly handled (not that it’s about to happen any time soon, sadly), the question of marriage and religion could be addressed—as it should have been all along—as a separate problem.
Different religions have different traditions. Those traditions, as they should be, are maintained by the religious institutions associated with those religions and by the people who believe in those religions. Such traditions have meaning and power, although all traditions are subject to change and always do change. But the meaning and power of any religious tradition should be decided by the believers in that particular religion, whether as individuals or through their institutions, and by nobody else.
Marriage, as a religious ritual as well as a religious contract, implies systems and standards of belief. As such a ritual, its meaning and power should be determined in any given religious system by the believers and institutions of that system.
If members of the Catholic Church, for instance, or its institutions (which have, inevitably, changed over time), believe that marriage in the Catholic Church means marriage between a man and a woman, then I see no grounds on which it should be my business, as a non-Catholic, to say that they have no right to such a belief or to support it through their church in any way they wish. The issue is one that Catholics should be discussing and debating among themselves.
What the Catholic Church should not have, however, is any right to impose that belief on any citizen who does not wish to believe in the Catholic Church. The church should have no right to limit the kinds of secular contracts that non-Catholics enter into (or even those Catholics who wish to enter into contracts without the Church’s approval).
It does no harm to the meaning and legitimate power of religious systems to say that they have the right to determine for themselves, but not for others, the importance of what they believe in.
Which is why there’s a pretty clear answer to those people who say gay marriage will threaten the status of their own marriages: if your marriage is threatened by what people you may not even know do with their lives, then it’s probably a pretty confused marriage.
So here’s to hoping that someday marriage will be a term that has no secular meaning. Talk about a fantasy... Then again, how many worthwhile ideas are?