Friday, January 9, 2009

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?


kfd313 said...

This is all very well said, and I agree wholeheartedly with most of it, particularly the state-level argument. However, the religious one leads me to a problem/question : What if one wants to be or is a member of a religion that disallows your right to marry and thus remain within that institution? You are basically saying that if two Catholic men or women want to marry *as Catholics* it is OK for the Church to deny them this. But we know from the Loving v Virginia case that discrimination of this kind can be decided to be unconstitutional. Religions do not have (or should not have) rights that conflict with basic human rights any more than the state does. It was the case in terms of race laws, it should be the same for sexual orientation.

Chris said...

I don't think Loving said anything about whether a church had to allow interracial marriages -- it was overturning state laws. Various churches (including Catholicism) officially supported getting miscegenation laws off the books as the trial was coming to the Supreme Court, so that wasn't what was at issue. I suspect if a church didn't want to marry an interracial couple, they couldn't be forced to, but IANAL.

I think you could make an argument that the state does have a reasonable case for supporting and encouraging widespread marriage, which in general seems to provide people with stability, happiness, and enfranchisement, all of which a democratic state should be encouraging in its people. Therefore the state should support the expansion of (secular) marriage for same-sex partners. (I have often wondered why there aren't state-run matchmaking services the way there state-run job placement services -- but then, I guess state-run job placement services are only so effective.)

Marriage (that is, secular marriage) may be fundamentally a contract, but to treat it like just a contract seems reductionist, or even like an attempt at neutering a powerful social institution. And there are arguments for neutering it, sure. But I'm not convinced this isn't a bit of a baby-and-bathwater situation. It needs reform (and it's getting it!) but state-supported marriage might be worth holding onto.

Sandra Simonds said...

Nice post. Craig and I had a "wedding" but we never turned in the paperwork to get married---so everyone thinks we are married, but we are secretly not married which is sort of fun!

Anonymous said...

What if I just wanted to get married so i can use someone's health benefits?
What if I place in the marriage contract that I won't have any sexual relations with that person while we are married?

Sandra Simonds said...

Ummmm, that sounds like being married!

Anonymous said...

then sign me up! :)

mark wallace said...

Thanks for these comments, everybody.

Kfd, I think Chris is right that Loving v. Virginia was a secular case. But the responses of various churches at the time, including the Catholic Church, are excellent examples of what I mean when I say religious institutions are capable of changing (or modifying and clarifying) their traditions.

Still, the situation you raise is a poignant one. What to do about a gay couple that wants to be married in the eyes of (to just stick with my basic example) the Catholic Church and who care deeply about that acknowledgment? Of course, some people might ask why people would want to be part of a church that didn’t share their values or even respect them. But the answer is that a church is more than just an institution and a set of beliefs. It’s also a culture, and a set of rituals and styles. Someone who grew up in that culture could care about it a great deal while not sharing all its values.

Still, though I understand the turmoil potentially at stake, in order not to be a hypocrite I think I have to stick to my argument. I can’t very well argue that the state has no business deciding on proper forms of sexuality but should very aggressively control religious belief. I don’t want to be a leftist who advocates freedom for the things I value and strict regulation for the things that others value. So I guess I think that the separation of church and state has a necessary corollary in freedom of religion. My hope, of course, is that members of various religions will discuss the issue both within groups and across groups, and come to the decision to acknowledge the validity of gay marriage (or whatever term might be better). My skeptical, realistic side tells me, though, that different churches will come to different conclusions.

Chris, I’m not sure I was advocating for the elimination of the whole concept of marriage so much as I was pointing out flaws in it as a secular, bureaucratic contractual term. People should continue to think of themselves as married if they wish to do so. And I don’t want to downplay the life-altering, mysterious, and even sacramental elements of love, although I don’t want to mythologize them either, which is actually more common and can cause a lot of harm. Still, I’m not sure I understand the grounds on which we can really say that marriage “in general seems to provide people with stability, happiness, and enfranchisement.” What is the evidence to suggest that? What married people say about being married? I can think of many cases, as I’m sure we all can, when marriage leads to instability, unhappiness, and disenfranchisement. I’m tempted to say that the situation is more a tautology: marriage works for the kind of people for whom marriage works, and not for others. The people who want to be married should be married, but I don’t think the state should be encouraging all of us to be married. Although for some people marriage may be like good eating habits and hygiene, marriage isn’t quite a health initiative. I’ll also say that living in a conservative, often religious county here in San Diego, I’ve seen a lot of difficulties caused by the mythology of marriage. Many 18-21 year olds in this county get married, often so they can have sex “respectably” and leave their parents homes, but also with a huge mythology about family life guiding their inexperienced decisions. The result is often that within a few years, the immature men have fled the situation, and the women have to live with the difficulties of single motherhood in an expensive place. I’m not saying that 21-year old single mothers hate their lives, but they do face real problems. Not surprisingly though, a lot of them become more liberal than they were before, which may have (quite seriously) something to do with the fact that Obama won San Diego County.

Sandra, the story about you and Craig is a great one, and to a certain extent, relatively unique. As I’m sure you know, the opposite story is more common: people getting married not because they believe in it but because they really do need the health and other financial benefits it entails.

Which brings me to Anonymous. A, I’m not sure you meant your questions seriously, and I have to admit to feeling that anonymous commentary is somewhat cowardly. Still, I’ll take your questions more seriously than you may have meant them.

Re no sex in the marriage contract. I could be wrong, but sexual behavior isn’t quite specified in the official government paperwork. Monogamy is assumed but the details go unmentioned. Obviously, infidelity is assumed to be grounds for divorce, but only of course if one of the married parties pursues a divorce on those grounds. So how many times a week you have sex, or with whom, isn’t an explicit part of the contract. Besides, as Sandra says, no sex in a marriage is not particularly uncommon.

Re health benefits. First, as a contract, marriage like all contracts is subject to the laws of fraud, and people who enter into fraudulent marriage contracts should be subject to the law. But the larger issue is that linking health benefits to people’s marriage status is one of the most blatant examples of discrimination still allowed in the U.S. It just seems to me deeply unethical to coerce people into marriage because that may be the best way for them to receive health care. People should receive health care because they are citizens, not because they are married. Obviously universal health care is a very sticky practical problem and so forth and so on, but in principle, I think it’s right. Certainly, pressuring people into remaining in a marriage with a person they hate in order to be able to afford going to the doctor is not something that the government should be part of.

Chris said...

Heavens, Mark, I was talking about "encouraging", not about forcing people into it. Obviously it isn't right for everyone, and other types of situations (some contractual, some not) should be allowed to flourish. There should be, you know, investigation into the possibilities.

When I read your comment, I kept substituting the word "education" for "marriage". I thought about the state basically forcing San Diego teenagers to get a high school education, whether they are the sort of person for whom high school works or not. (I was one for whom it did not, but I found an alternative school which worked well for me, and which was also accredited by the state, do you see.) And how it encourages people to get some college education, through cheap loans and grants, but how culturally we are mythologizing education these days, and aggressively "encouraging" people into college for whom college doesn't seem to work. Not that the metaphor is perfect (although I am thinking about how the increase of non-"university" types into a "university" situation changes that situation for the "university" types -- since it changes class dynamics, the level of challenge, perhaps leads to grade inflation, etc., etc., -- although it also opens up new methodologies and opportunities; I'm not taking any stand against this! -- but comparing it to "destroying the sanctity of marriage" rhetoric, wondering if there is some way into understanding that baffling conception through this, and, well, maybe, probably not).

(Really what I'm doing at this point is rambling, so I'll stop here.)

mark wallace said...

I think "encouraging" was the word I used too, Chris.

The education issue is certainly tricky and perhaps for another time, although I see the parallels you're drawing. In general though I think the problem is similar to what you may be implying: that is, I don't think the issue is education vs. no education (since becoming educated in one way or another is inevitable), but what kinds of education can best help different students. Education curricula these days are often narrow, one-size fit all endeavors, I certainly agree. And some people learn best, I'm sure, when not in school at all.

Chris said...

Well, I was responding to moments like: I’m tempted to say that the situation is more a tautology: marriage works for the kind of people for whom marriage works, and not for others. The people who want to be married should be married, but I don’t think the state should be encouraging all of us to be married.

You think the state is encouraging people who don't want to be married to get married, which I think is maybe different from "encouragement".

mark wallace said...

Oh, I see. Yes. I do think that the state does that, sometimes indirectly, sometimes (like with health benefits) more coercively, and I see why you wouldn't necessarily call that "encouragement." And I think I was also in that particular instance responding to your idea that encouragement should be perhaps along the lines of general state encouragement for people to lead happy, healthy lives.

Anonymous said...

i was totally being serious.
when i hit about 45 and im still sadly single i want to make a pact with someone in the same situation. we dont have to have fact i prefer to stick to masturbation.
preferably they have health care i can openly mooch off of. in return maybe i have something they use like my good credit or i can agree to cook all the dinners in return for the health care.

i cant believe you called me out on being cowardly. maybe my birth name is anonymous.

Anonymous Worth

mark wallace said...

Thanks for your further thoughts, AW.