Marriage and the State

R. R. Reno, who edits First Things, a journal for very serious religious conservatives, proposes separating religious marriages from government-sanctioned civil marriage, as a protest against state recognition of same-sex marriage. The government would do its thing, and ordained ministers would do their thing, but ministers would no longer operate as agents of the state when it comes to performing marriages.

Some libertarians have long supported “privatizing” marriage, which would remove government from the marriage-sanctioning business altogether, making civil marriage a contract agreed to between the parties (the enforcement of which, if disputed, would fall to government to adjudicate, as with other contracts)—a somewhat different and more radical idea.

Although Reno’s First Things argument is based on animus toward equality for gay people under the law, I don’t know that it’s a terrible notion in and of itself. Religion is always stronger when it is freest from government’s command.

12 Comments for “Marriage and the State”

  1. posted by Don on

    I have long argued this would be the best way to go. A friend had told me this is essentially the way it is in Europe. One would need a state marriage license from the government, but a member of the clergy cannot solemnize that aspect. You want a church wedding? You have to go to the church. And you can get a divorce from the state but your church can refuse to recognize it.

    Ireland was an exception in that there was no legal divorce there until recent years. For anyone for any reason. The Catholic Church made sure that it had to be by referendum and would march out all the faithful to make sure that “God smiled on Ireland for staying true” while literally thousands of couples lived apart, had new families but had to file joint taxes with their “former” spouses.

    This seems to be the best way to go. Complete religious autonomy. But I am very skeptical that our fundamentalists will go for it. They are for creating religious laws and believe religious control of our secular institutions is a good thing. There would have to be a massive undoing of their worldview to even toy with this. And it would essentially eliminate their argument for organizing politically.

    Either they work toward laws that reflect their religious worldview or they don’t. And I don’t see them magically turning into the religious left, focusing solely on social justice efforts.

    Wish we could go here. But I don’t see how they’re going to buy into it.

  2. posted by Mike in Houston on

    I guess I’m missing something here… It’s not as if a minister (any minister, anywhere) is being required to perform this function for anyone outside of their church teachings… Far from it, right now, clergy in faiths that do recognize same-sex marriages are (in the few states left) are precluded from doing this for gay couples – a truer example of violating religious liberty than anything else.

  3. posted by Tom Scharbach on

    The idea of separating religious marriage and civil marriage is distinct — not “somewhat different” — from removing government from marriage altogether.

    I think that separating religious marriage from civil marriage is a good idea, and the sooner the better. Almost all of the mischief in the long and acrimonious debate over same-sex marriage has stemmed from confusion between civil law marriage and religious marriage.

    The change can be accomplished without complication, by removing clergy from the list of persons deputized by the state to officiate at civil law marriages. In Wisconsin, for example, removing the words “Any ordained member of the clergy of any religious denomination or society who continues to be an ordained member of the clergy.” from Section 765.16 would be all that it took to accomplish the change.

    The change would help clarify that civil law marriage is a civil contract as a matter of law (e.g. Section 765.01 WSA: “Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of [married couple].“) that has absolutely nothing to do with religion, and help end a lot of the semantic nonsense we’ve heard over the last decade about the “sanctity of marriage” as that turn of phrase is applied to civil law marriage.

    However, privatizing marriage (eliminating civil law marriage) is a terrible idea. Civil law marriage is a set of laws that allow individuals to enter into a government-defined civil contract, a contract with government-defined responsibilities and benefits, at low cost, without incurring the expense of employing lawyers to draw up a civil contract. Privatizing marriage (i.e. “The Lawyer’s Full Employment Act of 2014”) would benefit no one except lawyers. Civil law marriage, like road maintenance and fire protection services, is a near-perfect example of a situation where the government can deliver services more efficiently, more effectively and at lower cost than the private sector.

  4. posted by Houndentenor on

    I have no problem with that. I think the objection is going to come from ministers who are used to performing marriages recognized by the state. In fact I often hear the argument that the state should get out of marriage which indicates that the speaker has no idea how marriage works legally. Many countries do it this way. The legal part happens in a government office somewhere (consisting of signing the paperwork in front of a witness) and then you can have whatever kind of ceremony you wish, if you wish. The issue is not that this wouldn’t work. It’s that many heterosexuals take for granted the thousands of legal implications of being married and have never really thought this through. But by all means push this plan and see what happens. You’ll hear no objection from me.

  5. posted by Tom Scharbach on

    An update on legal issues:

    4th Circuit

    SOUTH CAROLINA — South Carolina petitioned the Supreme Court for a stay last night, following the 4th Circuits denial yesterday afternoon. No word — yet — on when the Chief Justice or the full Court will decide, but unless the Chief Justice issues at least a temporary stay today or early tomorrow morning, marriages wil begin at noon tomorrow. The South Carolina Supreme Court issued an order this afternoon lifting an earlier delay order that had applied throughout the state, so that clears the way as soon as the emergency petition before the Supreme Court is disposed of. That’s assuming, of course, that South Carolina doesn’t follow past practice and secede.

    South Carolina relied primarily on two legal arguments in seeking a stay from the Supreme Court. The first, which was presented more or less pro forma, argued that Baker remains controlling precedent until the Supreme Court explicitly overturns Baker. The second, on which South Carolina spent 16 pages (of a 21 page petition) discussing, argued that the federal courts were precluded from deciding the constitutionality of marriage discrimination because of the so-called “domestic relations” doctrine.

    The “domestic relations” doctrine refers to the longstanding practice of the federal courts to refrain from becoming involved in disputes between spouses. Federal courts refuse to grant a divorce, award alimony or child support, or determine child custody even when diversity of citizenship may otherwise support federal jurisdiction. Federal courts have also dismissed claims to enforce or to nullify alimony and custody decrees obtained in state court, claims to enforce property rights acquired during marriage, inter-spousal tort and contract claims, and other claims tangentially involving domestic relations issues even though diversity of citizenship jurisdiction or federal question jurisdiction is present.

    The “domestic relations” argument has been presented before in marriage equality cases, and has always been rejected by lower courts, for obvious reasons. Marriage equality cases do not involve the federal courts in disputes between spouses, but instead involve the constitutionality of marriage discrimination. Unlike, say, a wrangle between spouses over who gets the dog, the constitutionality of a law under the Constitution is a federal question, a question that the federal courts are supposed to hear and decide.

    SOUTH CAROLINA — In a separate case, a federal court ruled that South Carolina is required to recognize out-of-state marriages as valid. So far, the state hasn’t indicated what, if anything, they will do by way of appeal.

    9th Circuit

    MONTANA — The District Court ruled in favor of marriage equality this afternoon, and issued an order enjoining state officials from enforcing Montana’s ban on same-sex marriage. The court did not stay the order, but instead ruled “This injunction shall take effect immediately.” With the ruling, Montana becomes the last state in the 9th Circuit to become a marriage equality state.

    Montana’s Democratic Governor Steve Bullock issued a statement tonight indicating that Montana will comply with the court’s order: “I have instructed my administration to quickly take all appropriate steps to ensure that we are recognizing and affording the same rights and responsibilities to legally married same-sex couples that all married Montanans have long enjoyed.” Meanwhile, Republican AG Tim Fox issued a statement indicating that he would appeal: ““It is the attorney general’s sworn duty to uphold and defend Montana’s constitution until such time as there is no further review or no appeal can be made in a court of law. Fulfilling that duty, the state of Montana will appeal this ruling in light of the fact that there are conflicting federal court decisions and no final word from the U.S. Supreme Court.

    Montana could get interesting real fast, with the AG seeking an emergency stay from the 9th Circuit and/or the Supreme Court, and the Governor filing a brief opposing the stay.

    10th Circuit

    The legal situation in Kansas remains, uh, interesting.

    Yesterday, the Kansas Supreme Court lifted its hold on marriage equality in Johnson Country (the state’s most populous county, consisting of the Kansas City suburbs) and declared that it would defer to the federal courts on whether Kansas’ ban on same-sex marriages is constitutional. The latter decision knocks the legs out from under the state’s argument that the federal courts should refrain from deciding the issue of marriage equality in Kansas out of deference to the cases in state court.

    The Kansas Supreme Court, however, declined to rule on whether all of the state’s 105 counties fall under a U.S. Supreme Court order last week blocking the state from enforcing laws and a provision in its constitution against same-sex marriage. That issue, it seems, will have to await a decision from the federal court. As of this afternoon, 19 or 20 of the state’s counties are issuing marriage licenses.

    Depending on how you count Kansas, we are either at 34 or 34 1/2 marriage equality states as of this evening, with Florida expected to come in a 35 soon.

  6. posted by Tom Scharbach on

    A quick legal update:

    4th Circuit

    SOUTH CAROLINA – The Supreme Court denied South Carolina’s request for a stay a few minutes ago, Justices Scalia and Thomas disagreeing, of course. The District Court stay expires at noon today. Marriage equality can commence.

    9th Circuit

    MONTANA – Marriage licenses are being issued. AG Tim Fox announced that, although he intended to continue the appeal process up to and including the Supreme Court, he will not seek a stay during the process. It looks like Fox is going through motions on marriage discrimination, but nothing more, either out of personal conviction or for political reasons.

  7. posted by Tom Scharbach on

    Sam Brownback runs true to form in the fiefdom of Kansass. It would serve him right if the citizens being turned away by the state agencies filed a motion for a writ of mandamus, followed on by contempt of court.

    • posted by Houndentenor on

      Surely you know that Brownback’s actions are just a plot by HRC to make Republicans look bad because Benghazi.

      • posted by Doug on

        Ooops, the GOP Intelligence Committee report on Benghazi just Clinton as well as the military and CIA of any wrong doing and/or coverup.

        • posted by Houndentenor on

          And will there be any accountability for the lies that Issa, Graham and others told? Of course not.

  8. posted by Tom Jefferson III on

    I think that this is a case of some folks on the religious right who seem to have the opinion that religious freedom is a wonderful idea as long as it only applies to them and their fellow church goers.

    Frankly, I am bit skeptical of the libertarian idea that the government has no business being involved family or marriage policy and (as they tend to argue) anyone who says otherwise is a big, bad socialist-statist.

    • posted by Lori Heine on

      Wow, the whoppers just keep coming. TJ III, you know very well what the libertarian position on same-sex marriage is. Shame on you for trying to distort it.

      Since the best-case scenario of government dis-involving itself from marriage is obviously not possible anytime in the foreseeable future (straights being unwilling to get their faces out of the trough), libertarians are generally in favor of same-sex marriage being legal. This is because we believe that everyone should be treated equally under the law.

      I know, I know. Some old boyfriend said he was a libertarian. And Ayn Rand, Ayn Rand, Ayn Rand, Ayn Rand, Ayn Rand.

      Time somebody called B.S.

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