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Government, Marriage, and the Future: A Conservative Response
Fred Cole suggests that conservatives and libertarians reach a compromise: get the government out of marriage. From a conservative perspective, the idea is a political long-shot with some substantive disadvantages. But there is, I believe, a conservative case — maybe even a Burkean one — for it on philosophical grounds.
Marriage is a covenant “before God and these witnesses.” A man and woman marry by committing to each other for life before God and their community; they don’t need the government to give them permission. Marriage was established by God before human government and does not intrinsically require legal recognition.
Still, we have had laws recognizing and supporting marriage for a number of years now, and have built a tax system and family law around it. Perhaps we could question whether moving marriage into the legal realm allowed us to imagine that the law could define marriage, thus contributing to the current situation. But as a conservative, I generally respect the wisdom of our ancestors in such areas and resist hasty changes. Ideally, I’d prefer to keep legal recognition of marriage.
However, the benefits of legal recognition have been weakened, if not lost altogether. There is no need to reiterate here the history, the statistics, or the reality we see around us. SSM is only one more step. But it adds a new wrong not already on the books: it makes the law a liar. That is much more ominous than returning marriage to the private sector (if that could be accomplished). If the government not only treats marriage as an easily cast-off attachment but also recognizes as marriage things that are not marriage, I would prefer that it recognize nothing as marriage. I am a conservative, but when change is forced upon us I recognize the need to adapt to resist even worse change. If the law must cease to do good in order to prevent it doing harm, so be it.
That is the theoretical case. Then there’s reality. The logistical obstacles to “getting the government out of marriage” are huge. It could be done on paper. You can open up an equivalent financial contract to anyone; that will not destroy society. You could come up with child-friendly laws that would perhaps even promote parental responsibility. In the real world where every amendment is a political football, these obstacles might be insurmountable.
And then there are the political barriers. The fact is that the SSM movement thinks it is winning and is hardly interested in compromise. Such a proposal could create a way out for a state that doesn’t want its marriage laws defined by the courts. It’s unlikely. Republicans are instinctively conservative and take time to make such changes in thinking — and they have not been given time.
If this fight were taking place in the electoral arena (as it ought to), “get the government out of marriage” might have a chance. Imposition by judicial decree, alas, does not yield well-crafted compromise.
I think the only thing to be done at this point is what I recommended (publicly) to my pastor. Priests and ministers should stop acting as agents of the state wrt marriage immediately. This is strictly a temporary defensive measure, though, intended to protect the churches from litigation until the Left gathers its forces again for the final assault.
There was a link on Fred’s thread (sorry, no attribution) showing a Massachusetts parent in handcuffs for resisting indoctrination of his children in public schools. I expect more of this. The Left has just begun its persecution of traditionalists. Belief in a millennia-old institution is being turned into a thought-crime. You cannot reason or play by the rules with totalitarians.
Since the legal definition of marriage has direct bearing on the legal definition of parent, these kinds of proposals seem to imply that we should “privatize parenthood” as well. I have tried, to no avail, to get an answer to this question on the other thread. I don’t think we can do what is proposed here without damaging our legal definitions of parent, which are already being damaged due to SSM/gender-neutral marriage.
I am not a lawyer and probably can’t outline how that could work without sounding ignorant to those who are.
But, unlike SSM, it probably makes legal parenthood based on biological parenthood, short of adoption. If the biological parents are married, live together, combine their financial assets, stay together, etc., it makes little difference to the child whether the marriage is a legal matter or a private one.
If not, it gets messy…but as you point out, it already is. The cases where the law needs to step in to protect children are almost invariably those where there is no marriage or where a marriage has been destroyed.
I agree that legally recognized marriage is helpful, but not that it is absolutely necessary. God established parenthood before government, too.
I am not suggesting an ideal that will offer a perfect solution to every problem, but outlining a conservatively realistic response to a world in which we may have no choice except between bad and worse.
In Europe religious and civil marriage are different things. Churches are going to have to go back to that, with a different understanding of what religious marriage entails. Mormons have what is called a “sealing”–like the power to seal given to Peter. We’re going to have to resurrect the idea of Sacramental Marriage that is different than what the state confers.
Leigh, I agree that I would prefer what you are talking about to what is coming down the pike, but I also agree with you that there is no movement for it. It’s a fringe idea. We can still talk hard about state’s rights, but with the court free-for-all, that doesn’t help us much. Utah is going to resist. We’ll see where that goes. The problems with all this, which will be huge, are already showing up. It will take awhile for people to really see the damage, but they will see it. I hope we can get some resistance then. I have a very smart friend who thinks the kind of craziness we’ve seen will be self-correcting eventually. I don’t know that I agree.
I pray that people will see the damage the left has brought on society but I’m not so sure. Denial can have a very powerful hold over people, and its very difficult to shake people from their preconcieved notions, especially when emotion is involved. It will take a lot more destruction to bring some folks around
They don’t need anyone’s permission to commit to each other and to live as they please. Individuals can already contract among themselves concerning property rights; they can already write wills; they can already appoint someone as guardian or representative; they can already pool their interests. Marriage is not needed for any of these functions. Is commitment what it takes to make a legal or a sacramental marriage? No. The key to the legal or sacramental form is the third party acknowledgement/recognition – without it there is no “official” marriage. That’s part of the reason why this is not just a contract amongst individuals. If we remove that third party from the equation, then what is left to be formalized that can’t be handled better by separate contracts? I think there is an answer and that Jennifer is correct that it has to do with the basic connection between opposite gender unions and family formation.
Yes, individuals can contract arrangements among themselves, but our hidebound institutions frequently insist on a state-sanctioned definition of family, heir, etcetera, to the frustration of those whose family definitions are incompatible. Things are loosening up in this area, but there is a long way to go, yet.
I know many libertarians do use that phrase, but I still say that is too simplistic a way of describing the mainstream libertarian position.
For me anyway, it’s not about getting “the government” out of marriage, but rather limiting the power of the bureaucracy to regulate marriage.
Right now, marriage is akin to a contract where the terms are imposed upon you by the state, and where the terms can be amended arbitrarily by the state. That is an untenable paradigm, IMHO.
Better to have a paradigm where marriage is akin to a contract negotiated in advance by the partners, with disputes being adjudicated (probably by government) according to the agreed-upon terms.
Yes, governments and churches can have template marriage vows for people to use if they so choose.
The point is that the terms/vows should be negotiated and agreed-upon by the partners to the agreement, and that they should be binding. Right now, that simply is not the case.
For example, the partners vow to honour the agreement “til death”, but how many people take that vow seriously?.
I disagree: when it comes to injustice, you have to hightlight the injustices involved. Think for a moment, when FDR threatened to pack the Supreme Court to get his New Deal programs approved, the justices had two choices, either start re-interpreting the constitution to suit FDR or MAKE HIM DO IT. Had it been me, I would have argued the latter. Naked Court packing would have resulted in short term success (assuming Congress allowed him to do it – they were more sensitive to their sphere of influence then) BUT it would have reduced the legitimacy of the programs approved. With reduced legitimacy comes an opportunity to change it sooner.
Let the churches be sued into bankruptcy, show more parents being led away in chains, demand that bakers make cakes and go to re0education, highlight the poor adoption programs – raise the cry to the heavens of the injustices involved – The appeal to conscience can only succeed when the percieved injustice is great.
The killing fields in Cambodia came to an end only when even Communist Vietnam had had enough and invaded.
This is, sadly, probably a very good idea.
Sorry. Didn’t buy it Fred made the argument, and still not buying it.
What is a “community”? Why is it important for the “community” to recognize it? For the same reasons that it is important for government to recognize it. Every agreement needs to be enforceable by a third party, otherwise it’s useless. When “governments” didn’t exist, the “community” was the same thing as “government”.
Marriage doesn’t require legal recognition? Try saying that to the judge when one’s wife sues them for half their stuff because of infidelity, or sues them for alimony, or sues them for child support, or the descendants sue each other for inheritances.
If marriage isn’t a legal agreement, with 1001 liabilities, requirements, responsibilities which are legally enforceable in a court of law, then what’s the difference between marriage and a hand shake between friends?
When I say “community” I primarily had in mind the church family. But if it’s just the two of you on a desert island I don’t see any reason that’s not a marriage.
You’ve referred to the system of family law we’ve built up around legal recognition, and I agree that it’s a good thing. It’s not essential to marriage as God ordained it. The people who have strong marriages today have them in spite of our culture. They are built on their own vows to each other before God, not on legal recognition.
Maybe it is harder if you leave God out of the picture.
I’m not trying to, but even in a church, they expect you to put your name on a dotted line, and there are punishments associated with not living up to that contract. It’s still a contract, even in the eyes of “the” church.
My pint being that “community”, “church” or “government” are in essence substitute institutions of each other, in this case. I’m not saying if you have government you don’t need community or church (as the Left might argue). Rather, from the POV of contract enforcement, these institutions serve the same purpose in this case. Considering that the government in the US simply adopted, mostly whole-sale, church-based institutions of marriage, indicates this point.
So philosophically, we’re still stuck with the same issue. Marriage is a contact which defines responsibilities, liabilities and rewards. The most efficient way of dealing with these is to do it at the government level. Otherwise you have to have 500 different institutions, and lots of confusions when dealing across these institutions.
Getting marriage out of government would be a hugely more expensive and complicated thing, then simply having a second set of “contracts” for non-straight couples. Adding another box to a form, is easy. And doesn’t require calling this other box “marriage”.
I think we need to put this ‘marriage as a contract’ analogy to bed. Marriage is not a contract between the individuals getting married and the role of the community is not to enforce the agreement. Marriage, if it is to be compared to a contract at all, is an agreement between the couple and their community (whether religious or civil). The community grants special recognition and status to the couple in exchange for their commitment to each other. In the absence of the community, there is no marriage. Government is the only viable representative for the civil community.
The question I am posing, though, is this: if the government is going to recognize not only marriage, but all sorts of things that are not marriage according to future judicial whim, is the government not doing more harm than good?
There is real good in traditional marriage, it is worth fight for just as we have fought against Roe.
I agree that there is real good. But the harm of returning to marriage as a private matter is not equivalent to the harm done by Roe, and I believe it is less than the harm done by a misdefinition of marriage.
I do not understand how marriage could be or ever was a private matter. The essence of marriage is the community affirmation of the relationship. Your solution I believe also mia defines marriage.
That’s exactly what I’m saying, and doesn’t change the fact that it’s still a contract. The fact that there’s a 3rd party to enforce it doesn’t change anything. All contracts have that feature.
And yes I agree, marriage was never a private matter.
“But from the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; And they twain shall be one flesh: so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.”
That is the definition of marriage: a man and woman coming together, becoming one flesh, remaining together, joined by God and inseparable. God joins them. Not the community; they’re just witnesses.
I’m willing to admit that the “let it burn” idea has some appeal since we feel it’s going that direction anyway. However, if/when the frequency of these events goes up it’s going to destroy a lot of decent people’s lives. Are we individually ready and willing for that martyr to be one of us? Is it better to fight it now or wait and hope that this societal version of Russian roulette spares us until it gets bad enough to change public opinion?
Even in a religious or Sacramental marriage, the religious community or His Church on Earth act as God’s representatives to join them. It is still a public event.