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Why Privatizing Marriage Can’t Work

An important discussion [1] 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, and 2016-17 Visiting Professor of Conservative Thought and Policy at the University of Colorado, Boulder. Among his many books is Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (Cambridge University Press, 2015).