When Did Marriage Cease to be a Sacrament?

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.

Comments

[FrankMCook]

You have come out in the same place I have. As I've written in previous blogs here, I do not think the state has any business telling the church who is married, and I do not think the church has any business telling the state who is entitled to various civil benefits like tax filings, medical determinations, witness privilege, etc. One way to achieve this is to recognize civil unions, but that is not the only way. We can avoid a lot of the political heat by simply taking the various civil issues one by one and letting the legislatures define who should be regarded as a couple for the purposes of the particular civil matter.

[Davis]

If, as Aristotle says, the state exists for the sake of the individual, then couldn't it be said that the state ought to furnish all those circumstances and other things which constitute real human goods and no others? If so, then might the state not reasonably conclude that encouraging monogamous heterosexual bonding produces a real individual good, but that all forms of homosexual bonding does not? It already makes such distinctions in many other areas, some involving matters of life and death. (Of course, all this has no relevance for the legal positivist, yet could still have autonomy apart from sacred theology.)

It could even call it "marriage." After all, consider how law professors don't seem to know how to use the term "law" univocally!

[Lief Carter]

I have long thought that Heald outlines a wisely reasoned legal path on this issue. But, perhaps to provoke Stanley Fish to weigh in, let me anticipate what he might say: Heald's arguments, so sensible and persuasive to us, only preach to our small choir of academics and intellectuals. The real question is, What kind of affective moves and rhetorics will redirect the minds of the large majority of folks who have no intellectual inclinations whatsoever? Answer: They are the moves that ordinary folks already make when they discover a family member or friend is gay and realize it's no big deal. And it's the moves that young people make when they urge their parents not to be so stodgy and stupid. Over time, these ordinary moves will eventually make Heald's legal path politically safe. Stanley?

[Fazal Khan]

The intent of Heald’s post is clear, to suggest a pragmatic path for having the practice of gay marriage be recognized and not discriminated against by state action. His suggestion is that states could defer to the denominational choices of who is married, and cut states out of the loop for defining marriage. Thus, a gay marriage at the Unitarian Church “would have to count as much as any other marriage” and the Southern Baptists could continue to bar such unions for their members. However, Heald is hoist on his petard when he notes that in the eyes of Roman Catholic Church, he is still married to his former wife! Should the state defer to this denominational choice as well? Or should the state do the “sensible” thing and ignore it--which of course opens the door to ignoring other denominational choices...such as recognizing gay marriage.

Heald’s point about states cloaking discriminatory action behind the “sanctity of marriage” is well taken. Perhaps one response is to ask whether states' recognition of marriage is universally based on its sacred, or holy nature? One might think of an outrageous Las Vegas wedding ceremony, attended to by an Elvis impersonator and with strippers as ushers--the description of “profane” rather than “sacred” comes to mind—but nevertheless, if legally performed (which in Nevada means it has to be a heterosexual union), the state will recognize it as a marriage. Therefore, the universal foundation of marriage may be a legal union between consenting adults that is worthy of state recognition because of its tremendous social value—sanctity, especially in Vegas, is optional.

However, my initial reaction to Heald’s post was not to think of a wild wedding in Vegas, but rather of Geoffrey Stone’s touching op-ed piece on how state law prevented his daughter from legally getting married. Stone does not advocate for the state to step away from this determination, but rather to change its discriminatory stance. Ultimately, I think the recognition of gay marriage is a political, rather than legal question, and significant change will be predicated on society becoming normalized to same-sex marriages, a process which will continue to occur even if most states do not currently recognize them as “marriages.”

[Martha Nussbaum]

Paul makes a very strong argument. Since I'm just now writing the marriage chapter of my book, I won't go into detail about my own views, saving them for a later post, but I will say that the position Paul takes is increasingly endorsed by both sides of the debate. Many religious conservatives feel that the state doesn't belong in the marriage business Many people on the "left" agree. But let's dissect the issue a little further.
Marriage has three aspects: the civil, the expressive, and the religious. We can all agree that it's legitimate for the state to dole out a variety of civil benefits and privileges; we can also agree that it has no business performing religious rituals (and Paul is right to worry about the entanglement between religion and state that currently exists). What people disagree about is the expressive dimension: is the state entitled to dignify, or, as Charles Fried has recently put it, to "bless" certain unions, where that means something more than giving the people involved a package of civil benefits? It is this expressive issue that makes same-sex couples so dissatisfied with civil unions -- so long as other can get married. And they are right -- so long as the state is in the business of making expressive statements of approval or "blessing" that exclude them. Of course the statement made by granting someone a marriage license is typically a pretty incoherent one: it's a blessing, and yet it is given out, with no previous inquiry, to people good and bad, thoughtful and capricious, to pedophiles, convicted felons, drug abusers, people with a history of domestic violence -- just so long as they are heterosexual. Moreover, states increasingly make it very easy to perform a marriage: in some states, for example, any private citizen can be authorized to perform one marriage per year! Can this be "blessing"? But still, same-sex couples are right to feel that the regime of "separate but equal" (as the Connecticut Supreme Court recently called that state's prevous regime of marriage for straights, civil unions for gays) is highly unsatisfactory, making some statement or other that denigrates same-sex couples.
The solution to this mess ought to involve an unbundling of the civil privileges associated with marriage and a serious public debate about what the prerequisites for each particular benefit ought to be. In France, for example, a brother and sister who share a household can get the tax breaks given elsewhere only to the married, though they cannot legally adopt children. This is how we really ought to proceed, putting front and center the state's legitimate interest in protecting the welfare of children. (Michael Warner's excellent book THE TROUBLE WITH NORMAL made this point some years ago.) However, I fear that America is not ready to give up on the idea of a package of benefits, and thus the best we can hope for in the near future is a regime of civil unions for both opposite and same-sex couples (an idea endorsed, it seems, by both parties in this presidential campaign), while leaving religion, as Heald suggests, to take over the religious and also the expressive domains formerly associated with marriage.
One pitfall of this solution has been recognized, shrewdly, by our colleague Mary Anne Case. If A and B are married, they usually aren't required to live together or share finances. Many married couples prefer to have separate residences (like Mary Wollstonecraft and William Godwin), and to separate their finances. But most state definitions of civil unions require shared residency and finances, thus making that form of partnership more restrictive and conservative than marriage is, in those very states. So, we need to formulate the definition of civil union in order to include and encourage experiments in living that independent people, in both same-sex and opposite-sex partnerships, may want to adopt.

[LAK]

"or, as Charles Fried has recently put it, to "bless" certain unions, where that means something more than giving the people involved a package of civil benefits? It is this expressive issue that makes same-sex couples so dissatisfied with civil unions -- so long as other can get married."

Where exactly is this state "blessing" to be found? I'm terribly confused. It's a piece of paper. I didn't follow this argument. I see no blessings in the piece of paper or anywhere else in teh government's role.

"Why then, do states feel free to make pronouncements as to who is married and who is not?"

The answer is quite obvious to me: becasue marriage is a religious institution that, like many aspects of religion, is born of severe sexism that left women so disadvantage upon its dissoultion that the state was forced to step in and define certain rights that go along with it, to protect women in a time when they were viewed not just less than equal to men but often as personal property of men. Married women still go uncompensated for their work as mothers. They still get less edcuation and have less earning power than their husbands. They have to fight even now to get their fair share of marital property upon dissoultion, despite the law.

The question is, does civil marriage still need to serve that purpose now - to protect the interest of women? I would imagine it does at least until we as a society adequately value and compensate what has been traditionally been "women's work" and provide women the same educational and employment opportunities as men.

[Paul Heald]

Finally done for the week, I have a chance to respond to the very interesting comments. First, Davis suggests that a state might "reasonably conclude that encouraging monogamous heterosexual bonding produces a real individual good, but that all forms of homosexual bonding does not." Although I resist the initial premise, nothing in my suggestion prevents the states from "encouragement" of the sort suggested. I only would prevent one kind of encouragement, one that inevitably entangles the state in religious rites. I admit in my post that states would still be able to discriminate; I want to limit the form of discrmination to prevent state entanglement with religion. Second, I'm somewhat amused by Lief's suggestion that I'm preaching to intellectuals, when I intended to preach to fundamentalist Christians. I want to create cognitive dissonance among them by pointing out that they've ceded some of God's important work to the state. Third, Fazal thinks my own petard has been hoisted . . . hmmm . . . The RC Church says I'm still married to CAB, but the Episcopal Church says I'm married to JAC. To whom should the state defer? There are two ways out, I think. I can disavow the deference approach, which I'm happy to do. I like getting the state out of the marriage business altogether better. Or I could argue that states can and should be in the divorce business. Divorce is not a sacrament after all . . . Finally, both Martha and LAK (and I) see the benefits in unbundling a state's motives and interests in the various incentive packages it wishes to establish to encourage various types of behavior. These are comments that, to their immense credit, are more constructive than my post, which merely tries to give religious conservative a way out of a debate that has begun to eat at their souls.

[Resveratrol]

then might the state not reasonably conclude that encouraging monogamous heterosexual bonding produces a real individual good, but that all forms of homosexual bonding does not? It already makes such distinctions in many other areas, some involving matters of life and death.