Americans, especially observant Christians, would revolt if state governments passed laws defining what constitutes baptism (sprinkling or full immersion?) or what constitutes valid communion (wine or grape juice?) or who could hear confession or who could be a minister or priest (or a rabbi for that matter). An even greater number would object if the right to receive significant government benefits turned on whether the applicant was validly baptized, confirmed, or regularly received some other traditional religious sacrament. Why, then, are Americans so willing to have the state get into the marriage business?
I’ve been out of the Law & Religion/Law & Literature business for a while now (except to write a festschrift essay entitled, tellingly, “The Death of Law & Literature”) and have been content for years to explore the economics of intellectual property law. A visiting stint at the University of Chicago Law School, however, has a way of reawakening latent passions, and a recent work-in-progress talk by Martha Nussbaum has got me thinking beyond patents once again. Martha, who contributed two essays to my book on Literature and Legal Problem Solving, presented several chapters from her forthcoming book on law and sexuality that deal with the Politics of Disgust. It’s a wonderful project, and over the next several days I’d like to make some arguments beyond her text.
The first point is hinted at above—a conservative and subversive suggestion that the solution to the gay marriage “crisis” is for states to drop the word marriage from their vocabulary.Traditional Christian dogma establishes seven sacraments:Baptism, Eucharist, Confirmation, Confession, Ordination, Unction, and Marriage.For Roman Catholics, Greek Orthodox, and Episcopalians, these rituals involve the “outward and visible sign of an inward and spiritual grace,” e.g. the necessary presence of the holy spirit.But even for Protestants, who view these rituals as symbolic only, they are imbued with deep religious significance.For this reason, the state makes no pronouncements as to who is baptiszed or confirmed or ordained, or who has made a valid confession, or who has partaken of a valid communion, or who has been properly anointed for healing.Why then, do states feel free to make pronouncements as to who is married and who is not?Is not the risk of first amendment religious entanglement just as great as making pronouncements about the other sacraments?
We might be merely offended if nothing turned on the pronouncement.Would I care if the state passed a resolution stating that my baptism by sprinkling didn’t count?Maybe . . . but I would be infuriated if I were denied tax benefits or health benefits due entirely to my denomination’s aversion to full immersion dunking.
Under my possibly ahistorical version of the First Amendment, states would have two choices about how to deal with marriage.First, states could absolutely defer to denominational choices as to who is married and who is not.This is the way states typically deal with the sacrament of ordination.If the Catholic Church says Bob is a priest, then he gets a tax break on his housing.If the Episcopal Church says Mary is a priest, no problem.The state defers, rather than defining, who and who cannot be ordained.It could do the same with marriage, with the result that a gay marriage in a Unitarian Church, for example, would have to count as much as any other marriage.
Second, the state could get completely out of the marriage business. This would leave some churches free to marry homosexuals and some free to deny marriage to their members. In the eyes of the Roman Catholic Church, I’m still married to my former Irish-Catholic wife. That’s fine with me; my Episcopal bishop considers my present marriage fine and dandy.This is the sort of respect for religious autonomy that fits within traditional interpretations of the first amendment.
What about the tax code and employment benefits and all the other goodies that the state presently ties to marriage? Well, the State could no longer use the concept or the word. It’s no longer its business. The state would be forced to adopt some other criteria to determine who can file jointly and who gets health insurance and who can adopt and who can visit whom in the hospital. A progressive state could use a proxy like a simple civil registry as they do in France or a neutral principal like sharing a residence or finances. If it can’t use the word “marriage,” a repressive state is going to have problems discriminating unless it comes right out and says “homosexuals” are not entitled to a particular benefit or exclusion. This sort of response makes legal arguments against discriminatory state action easier to make and forces homophobia more clearly out in the open. A state would not be able to hide behind the “sanctity of marriage.” My proposal would not make discrimination impossible, but it would force it into more vulnerable forms and pointedly reveal discriminatory preferences in ways that make them less likely to happen (or so I suspect).
And best of all, it uses nicely conservative religious arguments to place a state behind the eight ball . . . and perhaps Stanley Fish (a friend whom I've invited to respond) will explain why political liberals won’t make the argument.