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Why Privatizing Marriage Can’t Work Print E-mail
By Francis J. Beckwith   
Friday, 14 February 2014

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.

 
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. Among his many books are Politics for Christians: Statecraft As Soulcraft and Defending Life: A Moral and Legal Case Against Abortion Choice.
 
 
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Comments (31)Add Comment
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written by Deacon Ed Peitler, February 14, 2014
I'm not sure I understand the situation that you propose where some Unitarian church decides whether Mary, now divorced (according to the Unitarian rules) gets custody of the children.

What happens now when an unmarried couple who have children part ways? Doesn't some "family" court decide custody of the children?

And, also, why couldn't domestic relations where property and children are concerned be adjudicated in a civil court where contract issues are decided?

I am one who believes that what society has come to define as "marriage" is nothing like what the Catholic Church means when She refers to "marriage." Hence, the Catholic Church ought not to consider as a valid marriage any arrangement recognized by the State or any religious group where the gender of the parties is irrelevant, contraception is not considered antithetical to the ends of that arrangement, where the arrangement involves more than two persons and where the the arrangement is dissolvable.

The same word "marriage" might be used by various interest groups but what these words refer to are quite divergent.
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written by Mack Hall, February 14, 2014
"The baby boom generation" is a stereotype predicated on an accident of birth that is no more valid than other forms of stereotyping. One might employ the very same illogic in accusing all individuals born on Wednesday as arsonists, or all those born on Thursday as abortionists.
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written by Michael Paterson-Seymour, February 14, 2014
In Scotland, until 1940, marriage required no notice or licence, no formalities and no record of any kind. Mere consent of parties, deliberately given, is alone sufficient to constitute a marriage without a moment's delay without any consent of parents or guardians or any notice to them; add to which that a mere promise of marriage, followed by consummation, or a living together as man and wife, without either formal consent or promise, amount also to a marriage, being deemed by operation of law to involve presumptions of consent.

The effect on the rights of third parties was deplorable. A man might marry and raise a family and then, 30, 40, 50 years after the event, usually on his death, some woman would threaten his family with an action of declarator of marriage, meaning that his widow and children ran the risk of being stripped of their rights of inheritance, depending on how the court interpreted unguarded expressions in a few old love letters.

For the security and protection of future generations, it is of the utmost importance that disputed questions of succession should be avoided, by rendering the proof of marriage easily accessible, by means of public registers.
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written by Christina, February 14, 2014
I take issue with the assumption that because a young person believes marriage within the state is different from marriage within the church that some how they are bowing to peer pressure. I am Catholic and believe that view to have some merit because regardless of how the state recognizes my marriage, it is a sacrament within the Church. Why can't the state grant rights, and the Church grant the sacrament of marriage? Isn't that what marriage at the governmental level is for...granting rights? The reason I argue this is because no one has given a convincing argument to me that marriage at the governmental level should only be between a man and a woman. Marriage is a covenant created in the Bible...it was not created by governments. Of course, I believe the Church to hold the ideal of what we should all strive for, but unfortunately, individuals are searching that out for themselves. How is banning two gay people from "marrying" going to preserve the idea of marriage? This ideal is already falling apart from the skyrocketing number of people who live together and choose not to get married. There is a greater issue in my opinion around what marriage means than anything else...so many people my age come from divorced parents...they feel it is easier to just "commit" than to marry. They think marriage doesn't mean anything...that is a greater crisis than the man/woman issue.
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written by Ted Seeber, February 14, 2014
So let me get this straight:
Civil marriage is all about material excess to the exclusion of the sacrament?

The reasons given for keeping Civil marriage around are divorce (which shouldn't be allowed anyway) and inheritance (which can easily be taken care of with a will)?

Pardon me for being extremely skeptical, but I don't find excessive materialism and greed being reasons to keep governmental marriage around.
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written by Bill Hocter, February 14, 2014
I would be curious to know how Catholics who lived under Communism or other regimes hostile to our religion were able to maintain sacramental marriages.I understand that the problem of homosexual marriage is new.
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written by Hopey, February 14, 2014
The one reason I could agree to get out of it, the State, for the time being, would be because the judge's who turn around and define, in their ruling, marriage basically the same as friendship. In that case, what business does the state have in a friendship and why? Also, because the rise of out of wedlock children, don't you already have courts deciding who gets custody?
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written by Richard Barrett, February 14, 2014
At least part of what I'm getting from this is that religious pluralism creates a set of circumstances that makes state involvement necessary. Do I have that right? If so, I'm not sure that it's a secular state's job to work out religious dilemmas. Presumably this is an area where "the market" will sort out the risks on its own and people will figure out what is necessary for purposes of acting in their own best interests, yes? Nothing would stop anybody from drawing up legal contracts to address these kinds of issues.
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written by Hopey, February 14, 2014
Also, in regards to the Church, Dr. Peters pointed out the reason to require Catholics marry in the Church (with permission) was to do away with Clandestine marriages. He proposed that with the laws as they are, license, it could be done away with. BUT, if the State were to get out of marriage, especially because of the ruling of judge's, then the Law in the Church would have to remain, no?
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written by Rocky Santoro, February 14, 2014
I think that the church should stop acting as an agent for the state. the day will come when the church will be sued by a couple that the church has refused to marry.
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written by Barnie Rosemeade, February 14, 2014
Blunt but true, we go through all these gymnastics to accommodate the desire of a few that we socially honor anal intercourse. We've gone mad.
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written by Michael Paterson-Seymour, February 14, 2014
Ted Seeber

In the absence of public records, easily accessible, it is fatally easy to marry, not realizing that one's supposed spouse is already married. This is especially so, where there may be uncertainty as to the legal effects of previous conduct.
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written by cermak_rd, February 14, 2014
Actually, as stated by the first comment, custody of children is a state matter even where the parents are not married, which is currently the case in about 40% of births today. So that would continue to be the case.

Draining of bank accounts is another matter and even with divorce the justice with this can be iffy. In the marriage disestablishment scenario, the couple would have to have substantial trust in one another or keep strictly separate bank accounts.

There are cases today where older couples are married via clergy only, but not under the state. Special circumstances where a widow's pension from her late husband would be lost and such. Perhaps a closer look at unions like that could determine whether this plan is practicable in the real world.
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written by Athanasius, February 14, 2014
I found this to be a very good article, but I find some of the prior comments puzzling.

1. Children are the primary reason for civil recognition of marriage. This permanent, exclusive relationship that can produce children is given state support because it is in the interest of society to ensure stable homes for the rearing of children. As such, the state needs some criteria for recognizing marriage in order to create an enforceable decree of protection for the children. As part of this, protection for the spouses plays into this as well. If marriage were purely private, then it is not legally enforceable, as Beckwith points out.

2. There is nothing that prevents same sex partners from living together and sharing a household privately. But because they cannot naturally have children, the state has no interest in the permanence of this relationship, so it is not necessary for there to be civil recognition of same sex relationships as marriage. If nonmarried people want to designate a particular person to be able to visit them in the hospital, etc. there is no reason why this should be restricted to people who are involved sexually. For example, two friends who are bachelors should have this same ability even if not involved.


And if we are really interested in protecting the rights of children, we should stop the nonsense of surrogate pregnancies and sperm banks, which rob children of the right to know and be raised by their biological parents just so some rich and politically connected gay couples can "have" children.
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written by Guest, February 14, 2014
Once we accept the State can misdefine marriage there is no reason the State cannot keep making more unjust laws. To think the State should get out of marriage is absurd. The problem is not the State. The problem is too many Catholics within the State do not live as Catholics.

No, allowing the State to claim square circles exist is stupid.
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written by Militaris Artifex, February 14, 2014
Contra Mr. Seeber's assertion that inheritance "can easily be taken care of with a will," I would suggest that doing so effectively would require a law compelling every married person to have and maintain a will from the day following marriage until his (or her) demise. I am quite certain that many members of the legal profession would be quite pleased with the additional business this would provide, but not pleased with the burden this would place on those with limited resources, nor do I believe the apparatus of enforcement of such a legal requirement would be morally appropriate in a purportedly free society. Mr. Seeber also neglects the mutual repercussions involved between marital status and adoption.

Pax et bonum,
Keith Töpfer
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written by Ben @ 2CM, February 14, 2014
"...set aside their critical faculties so that they are 'not on the wrong side of history.'"

Better to be on the wrong side of history than the wrong side of reality.
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written by Michael Paterson-Seymour, February 15, 2014
Cardinal Vingt-Trois, the Archbishop of Paris put it very well: : “Even though it has not taken the modern form familiar in our civil legislation, there has always been a means of handing things down from generation to generation, which is the very basis of continuity and stability in a society. This transmission between generations is primarily effected by the family. It is the legal framework of family life that structures the transmission of life and shapes the future of society.”
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written by Sue, February 15, 2014
Athanasius (and the article) is right - it is all about the child and *his* right to be connected to his biological mother and father. All this jabber about "marriage equality" has ignored this basic right of the child, while test-tube and adoption scoopups of children by homosexuals proceed apace. SCOTUS Kennedy tells us it's too late, that DOMA "humiliates tens of thousands of children now being raised by [those] couples", as if *being raised* by such a couple (who at least exclude a mother or father from the child's birthright) is not humiliating enough.

The point is that homosexuals are ?unwitting? placeholders for the State in such "marriages". They are more akin to an orphanage, at best, than a true marriage would be, to a child. But for the Brave New State's purposes, homosexuals are the perfect "parent" because they'll take direction supinely from the State as to how to parent the children - because they have no justification or rights to the children other than *through* the State.

Catholics, who know better, should not cede their own nor anyone else's children to the State. The child has the right to be connected to their natural mother and father, and failing that, the orphan has the right to a mother-father dyad who can stand in for those who brought him into being.

The Catholic should opposed IVF, instrument of technocratic oppression, every bit as fiercely as he opposes abortion. Even though the photo-ops may seem to favor the other side in the former instance (think "snowflake" babies), he must attempt to convey what is missing in the picture - the child's mother *and* father.
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written by Bill2, February 15, 2014
This reflects the lack of historical understanding, narrow cultural perspective, and social atomism of most American Protestants today, of either left or right. The fact is that marriage is, essentially by definition, and legal state recognized by government (or what passes for government in a particular time and place). It's a very public thing; that's the point. Marriage wasn't even firmed-up as a Christian sacrament until 1184. A "private" marriage is not marriage (it may be for a rare particular couple, but such a sort of marriage would never hold up, or be meaningful, as a cultural institution.)

To "get government out of the marriage business" is essentially to end marriage, an institution which has existed in every human civilization since the dawn of time. It is a radically libertarian view which suffers from the same errors of most other forms of libertarianism: it assumes that you can make radical changes in law but that everything will go on precisely as before, except that people will be more "free." No, radical changes in law yield, over time, radical changes in society, and hence in people.

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written by Ann, February 15, 2014
Is there any flaw in the idea that all "marriages" have to be conducted by the state, for all of the legal and legitimacy issues stated earlier, but that the Church would not recognize those unions as sacramental marriages? The true, sacramental marriages could be determined and discerned by the Church for her practicing and faithful members only. This would require two ceremonies--one for the state and one for the Church--but it would remove the state's power to intrude in conferring her sacraments. The state would still be able to adjudicate legal disputes in the case of divorce or death, but the Church would not have to be bound to morally release it's member spouses from the indissoluable bonds of a sacramental marriage unless an annulment is granted--much like it already is today. This would also make it more difficult for those sacramentally married to claim that they didn't understand what Christian marriage entails, as long as solid catechesis is done at the time of applying to the Church for a wedding, thus making Catholic marriages and families stronger.
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written by V Rose, February 15, 2014
The marriage covenant is respected by the state as a civil contract, albeit one that is more binding than any other current form of legal contract. The state allows one to break the contact when one files a civil complaint for divorce. A court can still decide custody regardless of marriage because there are still two parents. All the state would have to do is allow a civil custody filing when cohabiting parents no longer live together, and scratch out the term divorce from the legal system. The problem is not in who has "custody" of marriage, the state or church, the problem is that the Catholic Church teaches we have societal and community obligations and roles to play. Additionally, what society teaches is acceptable can poisen an innocent heart and mind. Teaching that homosexual relationships are healthy and moral and normal and that people have a right to have that relationship treated as equal to a sacramental marriage undermines parents ability to fulfill their baptismal promises to raise their children in the Faith. The problem is deeper than the technical application of the idea. I agree that with the position that such a stance is not accepable, but for deeper reasons.
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written by jason taylor, February 16, 2014
Bill2 writes: "It's a very public thing; that's the point."

There is no public. If it is legal to marry in Vegas before anonymous witnesses and then to move to another location with no necessity for either to answer to anybody then in fact civil marriage is not a public thing; it is only a legal thing.
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written by jason taylor, February 16, 2014
Bill2: "The fact is that marriage is, essentially by definition, and legal state recognized by government (or what passes for government in a particular time and place). It's a very public thing; that's the point."

The government is not the public. The government is the public's rent-a-cop.
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written by Michael Paterson-Seymour, February 16, 2014
Ann

Civil marriage has been mandatory in France since 9 November 1791 and has been copied in most of the rest of Europe.

It is a criminal offence to hold a religious marriage for a couple not already civilly married (Code Pénal Art 433-21)
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written by DB, February 16, 2014
Kudos to those commentators who recognize the serious flaws and straw man arguments in the article that advocates a reliance on the State that continues to demonstrate its ever-growing hostility toward the Catholic Church and Christianity in general.

God help us all even more when people who should know better continue to express the following claptrap in a form that is also used by many to promote the enlargement of the government as the "only solution to solve poverty," "the only solution to solve inequality," "the only solution to solve discrimination," and so on and so on:

"The only way to resolve these disputes is for the state to intervene."

DB
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written by DB, February 16, 2014
Kudos to those commentators who see the flaws and straw man arguments in the article that promotes reliance on a State that continues to grow more hostile to the Catholic Church and Christianity in general.

God help us all when people who should know better write the following claptrap:

"The only way to resolve these disputes is for the state to intervene."

People who know history should recognize the same kinds of claims made by those who have successfully contributed to the enlargement of government via the following claims:

"The only solution to poverty is state intervention"
"The only solution to discrimination is state intervention"
"The only solution to health care is state intervention"

A while back, I wrote a blog article on this topic that provides more food for thought. If anyone is interested, it can still be viewed at the following site:

http://vlogicusinsight.wordpress.com/2013/10/17/saving-and-promoting-true-marriage-2/
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written by JAG, February 16, 2014
Government has never had any Right to marriage in the United States of America. It's not a State Right. It's not a Federal Right. It is an individual Right. Governments do not have Rights. Ever. They have privileges- and only when granted by the majority of the States in an Amendment.

Whatever else the article is going on about is outside of the scope of law, history, and logic. It's only your opinion.

Marriage licenses were created because of mysogyny laws preventing blacks & asians from marrying white's in the US. It's a "License". It hasn't changed. It's still a "License". And is wholly Unconstitutional.
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written by John Howard, February 18, 2014
We need a federal law that will end same-sex marriage in every state. It needs to codify the inherent meaning of marriage as approving and allowing the couple to conceive offspring together, with each other's genes, and it needs to prohibit creating human beings by any method other than joining a man and a woman's sperm and egg. Once that is done, there will no longer be any conflict between a religious understanding of marriage and the state's understanding (well, except for divorce and remarriage). That law would be easy to pass, because opposing it means saying that marriages should be stripped of the right to procreate offspring together, and/or that same-sex couples must be allowed to try to make offspring together. both of which are very extreme radical claims that would cost society billions of dollars and be very intrusive and harm human rights. I've been calling it the #NMRA on Twitter - for Natural Marriage and Reproduction Act. Please call your Reps and Senators and tell them we need this law to preserve marriage ASAP!
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written by Fr. Damien Merrin, February 23, 2014
Sorry but this doesn't add up. What if they have kids, combine assets and never marry? Does the state stay out of it? No there is all kind of legal remedies if they seperate. Sorry but you missed an obvious one here. Government should get out of the marriage business.
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written by Lucy, November 10, 2014
I think marriage privatization is the perfect solution. What kind of a professor makes these lame arguments. In fact, I think the reason marriage is declining is because people don't like the divorce rules. Well then let them make their own rules with a pre-nuptual agreement. It was Luther who started government marriage. People will still get married, Pagans got married. Marriage is a contract between two families. that's what natural marriage has always been. Believe me, once the state is out of it, progressives won't be interested in marriage at all. They are interested in using the power of the state to force people to do things. there could be some basic parameters on marriage, like the contract can only be between two parties, and the people have to be of age. Otherwise, it would work perfectly.

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