Government Should Get Out of the Marriage Business
There is a way to undercut the left’s sustained attack on religion, expressed most recently through its assaults on traditional heterosexual marriage. The answer is to take government out of “marriage,” while continuing to allow it to control what are essentially the business aspects of two people joining together.
Tanya Berlaga has clearly shown why the “Respect for Marriage Act” is no such thing. And, as legal briefs so commonly say, Berlaga’s arguments are incorporated by reference herein. While she discusses marriage’s proper role in society, space likely prevented her from reviewing the government’s role in marriage.
Let’s begin at the beginning, with the American colonies. In the Southern colonies, while marriage was performed before a magistrate, divorce was unacceptable because the Church of England did not sanction it.
Marriage was an explicitly secular act in the New England colonies. New England civil courts could dissolve marriages, but did so only rarely. There were only 44 divorces in one 60-year span. Courts also awarded property and typically granted child custody to the father because children were regarded as economic assets. The concept of “the welfare of the child” developed later when the economic value of children declined.
Today, in my home state of Florida, a judge, pastor, or even a notary (I got mine to officiate at my grandson’s wedding) can legitimate a marriage. Similar laws exist across America.
But at the same time, the concept of the government approving or disapproving of a marriage that a state-designated officer does not perform places the state over marriage. It can be argued that this is an extension of the same principle of state authority one saw in the ancient droit du seigneur or jus primae noctis, which gave the local lord, the personification of the state, the right to the bride’s sexual favors on the wedding night.
While historians suggest that jus primae noctis is an urban legend, the king’s sexual privilege was undeniable in the ancient world. Ancient legends are replete with it for a simple reason. By “possessing” women, who produce valuable offspring, the ruler showed his ultimate authority and preserved his lineage. In the Israelite monarchy, David’s son Absalom declared his sovereign status by having sex with all his father’s concubines (2 Samuel 16:22, literal Hebrew). Killing all the royal competitors was the way to finish the job, but Absalom didn’t get that far before being hanged from a tree (2 Samuel 18:9-15).
Image: Wedding rings by freepic.diller.
Those of us with Christian backgrounds find the concept of “gay marriage” repugnant. Homosexuality and its related sexual deviancies (Sam Brinton, Rachel Levine, and Brittney Griner come readily to mind) may not be the province of the state to regulate but blessing them with the epithet of “marriage” is morally obscene. God created male and female; with extremely rare biological exceptions, we are all born male or female. The divine mandate is for one male to become husband to one woman and vice versa. But relegating marriage to a secular status pushes it back to the state’s authority to affirm or deny.
At this point, the linguists jump in. While most dictionary definitions speak of weddings and so on, “marriage” has a much larger semantic range. In its broader sense, it speaks of matching two “things,” not necessarily people, and joining them together. Obviously, this is parallel to a wedding ceremony, but that’s primarily because the things in a wedding are people who are joined together. “Matching” and “joining” are the root concepts. Thus, referring to the two people joining their lives as a “marriage” is less than exact language.
A different choice of words would eliminate the moral revulsion of Christians at “gay marriage” while retaining all the legal nuances. As far as the state is concerned, let’s rename this joining process as a “life partnership.” This is a more exact term, and completely lacks religious connotations. It directly expresses the intent for the two people to share their lives, whether religious or not. It also focuses on the legal issues involved.
A partnership focuses on shared goals, tasks, and finances. These are the obvious issues in what we now call “marriage.” On the flip side, “dissolution of marriage” would become “dissolution of life partnership.” Indeed, in most cases, a state making this change would simply state that in all existing statutes making reference to marriage, the term “life partnership” would now apply. And for people moving into the state, their “marriage” in another state would continue to be recognized in the same way.
A few key legal distinctions must be made here. If two people wish to have the state recognize their religious marriage, they would file a notice of life partnership with local authorities. No “marriage license” would be required. Financial transactions and accounting would require clear prospective definitions. A loan or account would be created as a “joint tenancy with right of survivorship,” or “individual,” and so on. Those definitions would define the disposition of any residual when the partnership ends through death or dissolution.
Ultimately, the only part of a life partnership different from a business deal is children. Regardless of your opinion on adoption by gay couples, the issues are ultimately the same. The partnership that has children is now obligated, as partners, to raise those children. The state has proper oversight when manifest harm is present or threatened, and that applies to both gay and straight. The dissolution issues of custody and support are likewise unchanged.
So why would we go through such an exercise when little appears to be changed other than a couple of words? First, it would eliminate the fight over the term “gay marriage.” The state, because it no longer recognizes the term “marriage,” would not be in the position to exercise any sort of religious authority, such as the Kentucky court clerk who refused to issue a marriage license to a gay couple. The two people involved would do their own thing and could record or not record their partnership as they wished. Two older heterosexual people, perhaps previously widowed and beyond childbearing age, could choose to declare their marriage without any concern of the state authorities. All their financial decisions would be properly managed by defining accounts in legal terms when established. Registering their marriage (partnership) with the state would be entirely optional.
The abortion fight may show us a reason to make the change. “Pro-abortion” became “pro-choice” to sound good and take away the stigma of “baby murder.” “Anti-abortion” became “pro-life” to emphasize its positive aspects. Changing “marriage” to “life partnership” would emphasize the civil aspects of the relationship in the civil legal arena. It would remove the intervention of the state in paperwork prior to the partnership and also the motivation for Christian public officials to object.
In short, “life partnership” takes the spark out of the social fire that feeds the animosity from both sides of the aisle.
Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media as DoctorTed and @vidzette. His DoctorTed podcasts are available on many podcast channels.