Marriage and the death of reason
February 6, 2013 § 48 Comments
There are increasing voices among traditional Christians calling for government to “get out of the marriage business”. I am having a difficult time distinguishing between this suggestion and a suggestion that we all just stop thinking.
I don’t mean this flippantly or as an insult. I mean it literally: calling for government to get out of the marriage business is difficult for me to distinguish from suggesting that we literally find some way to turn off our reason and stop thinking about the subject.
One thing it might mean is that government should get out of the business of enforcing and adjudicating contracts altogether. We’ve discussed that line of reasoning before.
Another thing that it might mean is that government should not be in the business of enforcing marriage contracts specifically. The government would still be in the business of enforcing other kinds of contracts. But this requires government to be in the business of determining what is and is not marriage, and what is and is not enforceable in the context of marriage: in other words, it requires government to be in the marriage business.
While I am sympathetic to the impulse to place limits on what government under unreasoning liberal tyranny can do, I don’t think that adding more unreasoning liberal tyranny onto the fire is going to help.
Zippy Catholic 
You literally just changed my mind. True fact.
True, but then as I found at W4, most self-professed conservatives are not interested in restoring the institution as it actually existed for thousands of years. For example, not a single commenter or contributor thought it was reasonable to restore the de jure headship of the family and marriage to the husband, and W4 is in my experience much more “conservative” than most “conservatives.”
This is why I came to take a different route in dealing with liberals: the Mencken approach. Give them what they want, good and hard until the squeal for anything but we asked for.
Zippy, I’m trying, but missing the connection. Where do the subjects of “marriage governance” and “cessation of thought” intersect?
I see two primary questions: Should the institution be regulated or not? And, if so, who should regulate it?
The first question is clear in my mind: Marriage is fundamental to families and should be guarded, supported, even enforced as necessary. The current lack of sensible limits is going nowhere good.
The second question is barely more complicated: Marriage is a commitment before God and witnessed by men. For someone of faith, God’s law and Church authority should suffice, accommodating civil law, as much as possible. Now, in search of your premise, what benefit does civil administration offer? What guidance is lacking in scripture?
Now, as concerning those without faith, they may choose to mimic the Christian pattern of marriage, to whatever degree, but what concern is this? Civil authorities can fill this void as they choose.
Are you suggesting that the Church is unprepared or uncommitted to the task?
I think the folks making this argument (and I have been one of them, though tepidly) is that marriage is *not* a contract, it is a sacramental covenant. Therefore, the government can neither validate it nor invalidate it, and certainly cannot adjudicate it.
When marriage was forever, there was no need to adjudicate the marriage contract as it was permanent and essentially terminal.
It was only the widespread acceptance of divorce that reframed marriage as a contract. Suddenly, dividing property between divorcing spouses required adjudication. But from the Catholic perspective, even spouses who separate and divide property are still married.
So, I think the argument is that marriage is marriage and requires no adjudication by the state. The distribution of joint property/the assignment of decision-making in a medical emergency/ hospital visitation rights etc, may require adjudication by the state but are not “marriage” and can be managed by another type of contract. This other type of non-marital life contract is commonly referred to as a civil union.
If put into practice, people who valued a covenantal marriage would go to a Church for it, but the state would still treat each as a single person unless they were also to enter into a secular civil union.
Likewise, secularists could simply go to town hall for a civil union, but the Church would not recognize these persons as married until the sacrament had been performed.
I sort of like the way this approach insularizes the Church from the dictates of the State. Of course the State will call their unions “marriages” too, because no one thinks civil unions are romantic!
Is this kind of separation unreasonable? If it is, I cannot spot the error and will need more explication. Sadly, not for the first time 🙂
Oh, sorry Alan! I posted a much more long-winded version of your comment right on top of you.
Marriage is not only a contract, but it is definitely a contract. (The same can be said for other agreements between human beings).
Naturally government intervention arises when there is an actual dispute (say the wife takes the kids and heads across country). That is true of all contracts though. Are folks proposing that there be no legal remedy in such cases when the contract is a marriage contract specifically? Doesn’t government have to define marriage – to be in the marriage business – even when it does so specifically to decline enforcement?
Alan:
Are you suggesting that the Church is unprepared or uncommitted to the task?
Are you suggesting that the Church has a police force and courts capable of retrieving stolen children and property?
I apologize if this is me ducking your argument, but I would counter that the state does currently handle legitimate disputes that arise between non-marrieds. So, if I have a child with my boyfriend, how does the state handle it if one or the other of us takes the kid and moves across the country against the wishes of parent who is left behind?
OH:
I would counter that the state does currently handle legitimate disputes that arise between non-marrieds.
The proposal though seems to be that when the agreement is either labeled “marriage” (the nominalist position) or is in fact marriage (the essentialist position) the state should not handle it. Pointing out that the state adjudicates different disputes doesn’t address the point at all: of course the state does that.
If that is the proposal, that the state never adjudicate disputes that arise between marrieds (whether nominally married or essentially married) I have not seen it made. Rather, the argument I have seen made is that any dispute that arises between married people over property, children, medical issues, etc, can and will also arise between incontrovertibly non-married people, and the state already has channels in place to adjudicate those disputes.
Therefore, there is no need for the state to adjudicate marriage as marriage.
If a couple wishes to explicitly contractualize their marriage, they can do so with a pre-nup or a civil union. But for those of us with a covenantal view, neither of the above are necessary, and we can take our chances in the regular court system if a good thing goes to Hell.
OH: Your comments meshed pretty well. I appreciate the thought. No harm.
Zippy: “Are you suggesting that the Church has a police force and courts capable of retrieving stolen children and property?”
I am suggesting that there are Bishops/Elders/Judges/Whatever to address these matters — and a rather long reach as well, spanning most of the globe.
Yes, there is sin amongst us, but what desperate criminal element are we anticipating within the Church? Those without are clearly a separate matter.
On a related note, how do circumvent the admonitions of 1 Corinthians 6?
I think that you will recognize that I’m having a little fun with this conversation. The points are real, I’m not jesting, but responding in a similarly humorous fashion to your characterization of the Church employing armed guards and FBI tactics.
I’m getting the impression that folks may have an idea what marriage is but don’t know what a contract is. Two people can enter into a contract with a handshake over a cup of coffee.
The proposal seems to be that when two people enter into a particularly serious contract called “marriage” in a church, the state should put that contract into the “unenforceable” bin. At the same time, somehow, the state should stay out of the business of defining legal marriage.
This is literally irrational. The state cannot define the sort of contract it will decline to enforce under the proposed regime – marriage – without getting into the marriage business.
So, you’re saying that our current state is competent to enforce contracts… any contracts? That is your beginning premise, which I would vigorously dispute. One only has to look at the financial industry, including the real estate market, to see what a farce it’s making out of contract law. The state can’t even manage to keep the megabanks from laundering money for terrorists, and you think they’re going to protect your wedded bliss? What about all of the hapless people who bought marriage licenses and then watched in horror as no-fault divorce tore their families apart? Talk about throwing good money after bad!
The state giveth, the state taketh away.
The idea that the state protects my marriage is absolutely laughable. With the financial incentives it gives to divorcées, its bizarre and ever-changing view of the matrimonial institution, and the constant attacks on male heads of household, the state only endangers marriage. The less the state has to do with my marriage, the better off I’ll be.
Would you want the devil to babysit your children? Probably not. Then why would you want the Great Satan to babysit your marriage?
If that sounds hysterical to you, then I would suggest you haven’t been paying attention. If you allow a corrupt state to define, license, and control marriage then you must understand that the state will corrupt the marriage. It has the reverse-Midas touch, and I don’t want my marriage to turn to shit.
I am perfectly happy with marital law being reduced to canon law and prenuptial agreements for those that desire them. If nothing else, I would like to have the choice of my marriage being protected from the state or not, as I wish.
@ZC
The proposal seems to be that when two people enter into a particularly serious contract called “marriage” in a church, the state should put that contract into the “unenforceable” bin. At the same time, somehow, the state should stay out of the business of defining legal marriage.
I don’t think that’s the argument. Surely a state can recognize a religion and its practices without a actually administering a religion.
It gets trickier when they try to dissolve them, but should the state have a legitimate interest to get involved when the RCC excommunicates someone?
It’s not the definition that some folks chafe at (Here thar be marriage), but the intrusion. Cops don’t settle candy disputes between five-year olds.
I think the tougher hurdle is that marriages have been state issues forever; whether we like it or not. We asked for a king, and we got one good and hard. There’s no going back.
This is literally irrational. The state cannot define the sort of contract it will decline to enforce under the proposed regime – marriage – without getting into the marriage business.
This is not true. In many contracts, the rights and responsibilities of each party are enumerated, and the signature covers those items. In the civil marriage system, the contract is “open ended”. You agree to have a civil marriage and the state can define and redefine what that means after the fact. You have no control at all over what the contract entails, and you’re essentially signing away your life without knowing what you’re getting into or getting in return, or what horrors await you in the legal future. This is pure madness.
At least the Church has vows that it maintains over time and canon law that doesn’t fluctuated with the tide.
Vanessa:
In many contracts, the rights and responsibilities of each party are enumerated, and the signature covers those items.
You could create a special side contract which states that while it looks like the agreement entered into formally in the Church in front of witnesses is a contract, in fact it is not a contract and both parties expressly choose for it to be unenforceable.
I’m not sure the Church would go along with that arrangement though.
Vanessa:
The state can’t even manage to keep the megabanks from laundering money for terrorists, and you think they’re going to protect your wedded bliss?
The anarchist position is always an option. I don’t object to people taking that position as long as they fully embrace it — and it’s consequences, one of which is that all contracts across the board become unenforceable.
Cane:
I described a kind of side contract to Vanessa into which the parties could enter in order to nullify the enforceability of the prima facie marriage contract. The proposal that the state “get out of the marriage business” requires the state to recognize a marriage as such and presume such a side contract as something implicitly entered into by the parties.
The anarchist position is always an option.
Yes, it is. At this point, the government is so vile that I can only hope that it will become as small and weak as possible. Even moving back to Germany only delays the inevitable, as America is a genius at exporting social insanity.
As the Germans say: Better to have a horrible end than a horror without end.
Libertarianism is the last refuge for a people who cannot even agree on principles like “don’t murder children” and “what is a father”.
It was only the widespread acceptance of divorce that reframed marriage as a contract.
Ending Church control of marriage and degrading it to a contract was one of Luther’s first acts.
Likewise, secularists could simply go to town hall for a civil union, but the Church would not recognize these persons as married until the sacrament had been performed.
That wouldn’t work for the Catholic Church. The Church recognizes marriage as a natural institution that Christ raised to the level of a sacrament when it is between two baptized Christians. Two non-baptized atheists who got married by a justice of the peace would not be sacramentally married, but they would still be considered truly married. If they got divorced and one of them later wanted to marry a Catholic, then he would either have to acquire a Decree of Nullity, stating that there is sufficient evidence to show that no marriage actually took place because of some defect, or he would have to have his natural marriage dissolved for the sake of a supernatural good through the Pauline Privilege (if it applied to his particular circumstances).
The Church does not recognize marriages as existing only within the confines of the sacrament of matrimony anymore than than she recognizes bread and wine as existing only within the confines of the Eucharist. In both cases something that is only natural is transformed into a means of supernatural grace through the power of God the Father, Son, and Holy Spirit.
Also, the question of whether or not a Catholic can support the government “getting out of the marriage business” seems to be have been answered pretty definitively to me: “The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society” (CDF, “Considerations regarding proposals to give legal recognition to unions between homosexual persons”, 11).
That was not an answer. We know that’s what the state is supposed to do. We’re discussing what to do when the state refuses to do it.
Vanessa:
If your embrace of anarchism is a rhetorical flourish to express how bad you think things are, it succeeds. However, it doesn’t address the reasoning of my argument in the OP at all.
If you mean it to be taken seriously, I’d suggest you get on that plane before contracts simply stop getting enforced across the board. Advocacy of anarchy is one of those “be careful what you wish for” things: a luxury afforded to first worlders by their coddled existence.
@ZC
I took a bit of abuse from Dalrock’s commenters for saying that whether we like it or not marriage is a legitimate state function. I blame it on the Israelites in Samuel 8, but that doesn’t change what is.
@Vanessa
Luther was German. Hahahahahaha!
If the state gets out of the marriage business, then it will have to permit every arrangement that people wish to call a marriage. The possible variations on this arrangement are multiple and mostly disgusting. That we have all “just stopped thinking” will be the least of the consequences. It will amount to a proclamation that the rest of the culture can just go to hell, and that the universality of Christian truth (and the state’s duty to recognize it) no longer matters to us.
That we have all “just stopped thinking” will be the least of the consequences.
True enough, Bill. But I’m not making an argument about consequences. I’m making an argument that the proposition “the state should get out of the marriage business” is incoherent: taken seriously as a proposal it has no intelligible meaning which actually leaves the state out of the marriage business (other than the anarchist escape hatch which proposes that that the state get out of the business of enforcing contracts altogether).
Unless the state radically rearranges how it handles taxation, estates and inheritance, etc, it is stuck in the marriage business whether we like it or not. Bet you never thought income taxation was quite THAT intrusive did you?
Vanessa defined the problem, Zippy.
If we got Calvin and Luther and St. Xavier and St Dominic together they would disagree vehemently about lots of things.
But they would agree with V. that the state has legitimised serial monagamy, and that is not what Paul and Jesus taught about marraige. Now, the RCC has clear teaching about what to do in delaicized nation such as France: get a civil marriage and then a sacramental one.
The trouble is that the state has repudiated its part of the social contract of Christendom and the catholic or universal church: that the state is there to punish wrongdoers and promote virtue. To paraphrase, V, the problem is not what should be. It is what is.
The family court is now explicitly anti family, anti male, and anti christian. And the same family court intrudes where it ought not: the marital bed — which is seen as an analogy of the church and Christ — is of interest to the husband, wife and their spiritual directors. Not the fracking state.
In this situation, is it time to not comply? V. is off to Germany, and I live in Dunedin: we are trying to put a bubble around our family and limit the damage.
Is it time for the Church to not have anything to do with the state? Not take their money, not notarize contracts?
Is it time for the church to discipline and judge their own? (We can have some ex servicemen become the dogs of God the Dominicans originally were — and there are Protestant equivelants).
Now, I am unsure on the answers here. I’m fairly aware that the Office of the defence of the faith is protesting in Europe right now. Historically, this may be more akin (in Nth America and the EU) to AD 400 — the night is coming and the monastories are building storerooms as the faithful get the hell out of Babylon.
I do think that us Protestants need to learn some marital Canon law from the Orthodox and Catholics and apply it. (I am talking the confessional Protestants here — the holiness movement churchians are going to conform to the world, which will be their downfall).
And the deep irony is that the Protestants have to think here. The RCC has very clear teaching. For my Catholic friends, it is not thought, but obedience, that is the challenge. For the state is opposing you obeying the magisterium every step of the way.
Cane, you realize that the Luther German joke was first used by a Borgia Pope. Around 1560.
Both Protestant and Catholic Germans died for their faith during the 100 years war — particularly after it turned into a Haspburgs vs French conflict. Cuis regius, cuis religionis was a pretty bloody doctrine.
Zippy, laicised not delaicised. My bad. I was thinking of de-preisted, when France needs to be de-secularized (and not by the Muslims)
Chris:
Vanessa defined the problem, Zippy.
No she didn’t. Describing what motivates people to make irrational propositions doesn’t address the rationality of the proposition.
If “the government should get out of the marriage business” is an irrational proposition then proposing it as a solution to X is like proposing that we round up a herd of unicorns in response to X. Arguing “but Zippy, X is a really really bad problem” doesn’t address the topic at all.
Alan and OH were arguing against what I proposed in the OP. Vanessa is not arguing against the OP: she is just giving reasons why we really really need the unicorns.
@Chris
I just thought the merry-go-round of accusation was truly funny. In one comment America is the font of Germany’s woes, but in another, it is Germany’s biggest export (Luther) that is the problem.
To get back to the OP, I agree with Zippy. Marriage has been the province of the state for God’s people since Samuel 8. Short of anarchy, there is no escape–which is why they (we) were foolish to ask for it.
Unless the state radically rearranges how it handles taxation, estates and inheritance, etc, it is stuck in the marriage business whether we like it or not.
This is no longer true. Now that the majority of people are no longer married, everyone’s found a workaround. My life would not change in the slightest if my marriage were no longer legally recognized.
This was actually an effective argument against gay marriage. Marriage no longer carries any notable economic advantages or legal preferences, so why were they so insistent that they be allowed to marry?
It’s for the social acceptance.
I’m merely suggesting we pack up our social acceptance and go home. Their marriages only bring them benefits in relation to our own, after all, but ours are recognized around the globe and in all times.
Marriage has been the province of the state for God’s people since Samuel 8.
That was a theocracy.
America didn’t start tinkering with marriage licenses until quite late. Marriage was a private affair and the state wasn’t asked for permission or even told about it outside of lawsuits.
Vanessa:
…outside of lawsuits.
Well, yes. Enforcement of contracts: the government function that libertarians assume as part of the background, like the air we breathe, and that we are supposed to refuse to think about.
[…] is perverse and wrong. One proposal for dealing with the problem has been for the state to “get out of the marriage business“, and one specific proposal for how the state should do that is the nominalist solution. In […]
@Vanessa
No, it was the END of a theocracy. Samuel the prophet and his sons were Judges over Israel. The Israelites asked to switch from a theocracy to a monarchy–like those Gentiles had.
Iran is a theocracy. Saudi Arabia is not.
It seems to me what you want is a theocracy, and you think it will spring up out of anarchy. I make no judgment about that, but the idea that the state has historically not been involved in Judeo-Christian marriage has not been true since at least Samuel 8.
The first divorce in the colonies.
The divorce was issued in and by the Mass. Bay Colony; an official state venture of England; land granted in 1628. It was administered under English law–influenced by Puritan sensibilities, for sure–but by English law regardless. The state has been involved in American marriages since before there was an America. It was just a different state.
Cane, that divorce is totally legitmate if you take the Westminster Confession as law.
But here we have to back up a bit. The catholic position (shared by the confessiong churches) goes somethign liek “:the church rules or moral issues and the king has to back them up when things go wrong”. In this case, the man had refused the counsel of the church to leave his mistress and return to his wife. THe church then went to the state, granted her a writ of divorce, and he was to be considered dead.
Zippy, I Know you do not like this, but we live in an anarcho tyranny. There are so many rules that we break them every day: most are not enforced, and many are not moral.
And the church at times has become the state — technically the Pope still rules the Vatican.
The Church needs to stand for what is moral, and not get covered completely in shit by being part of the destructive divorce machinery. For you RCC, this is a matter for your bishops: for us on the reformed side I think wyou will find a bunch of radicals are going to go “Armed Amish” — take an area or region and move there with like-minded neighbours and build something akin to the older colonies again.
Chris:
Zippy, I Know you do not like this, but we live in an anarcho tyranny.
You needn’t reframe the discussion to be about what I do and do not like. I can (and do) absolutely despise many things about modernity, including the nominalistic redefinition of “marriage” which is being attempted, no-fault divorce laws, misandric legal structures, etc.
But that isn’t what my post is about. My post is about a basic irrationality – not imprudence or disagreement about policy, mind you, but about what I think is a fundamental irrationality – in an argument that some Christians are starting to adopt.
Mind you, I think many of my interlocutors are simply talking past me. I have not, for example, given the slightest opinion on what Christians themselves ought or ought not do under liberal tyranny.
What I have done is address an argument that some people are making about what they think government ought to do. It is incorrect to interpret me as contending that they argue for something that isn’t a good idea or won’t work or some other prudential assessment of an otherwise rationally intelligible proposal.
What I am suggesting is that the proposal is not rationally intelligible at all. It merely seems rationally intelligible as long as we permit our reasoning to proceed to a certain point and then stop thinking any further on the matter. In particular, the thing we have to stop thinking about in order for the proposal to be rationally intelligible is the government activity called enforcement of contracts.
Now, I fully recognize that some people may disagree: they may think (whatever they think of its prudential wisdom) that the proposal that the government should get out of the marriage business is rationally intelligible. Some commenters have been arguing along those lines, and that does address my core contention. But other commenters seem to be assuming that I am making a prudential argument to reject an otherwise intelligible proposal. I am not. I am arguing that the proposal is not in fact intelligible.
No one says that the courts are not going to get inolved in marrige — that is unrealistic. Courts are jealous of their power.
You can make a case for no state licensure of marriage< which is a later development driven (at least in the UK and Commonwealth) by the acts of toleration. Before that, your marraige was registered in the church and by the church — like no one registered births but the church recorded who was baptized.
You can rationally say that marriage has nothing to do with the King and is completely the province of the church and Canon Law. (The argument here is two words: Hencry VIII)
What you cannot do is say that the current family law system is rationally designed to do its stated mission: preserve families. Instead, I would argue it is designed to do the exact opposite.
I agree we are talking past each other. My question much more what we should do now, given that our society is based on something other than the Christian consensus.
Chris:
My question much more what we should do now, given that our society is based on something other than the Christian consensus.
It is a very important question, but it isn’t one I have addressed. I expect that the answers would be complex and, as is ever the case with prudential matters, would depend greatly on the individual circumstances.
Zippy:
Agree. Ive some thoughts on my blog. If others have ideas on this, I’d be happy to consider them: good tactics have no copyright and should be used widely.
[…] government should get out of the usury business, and it is worth asking how that differs from the suggestion that the government should get out of the marriage […]
[…] on the subject of advocating “getting the government out of the marriage business” are Marriage and the death of reason, All the king’s horses and all the king’s marriages, What if only usurers could marry?, […]
http://www.lewrockwell.com/orig7/safranek1.html
A sacramental marriage sans state sanction is both necessary and sufficient to confer upon the spouses and their offspring the blessings of the sacrament.
The state’s licensure of marriage does nothing to improve its quality in any way whatsoever. In fact it very seriously detracts from it because of its concomitant perverse incentives for the destruction of the marriage. Sadly the sacramental marriiage long ago ceased to imbue the civil with any of the former’s goodness.
hurting:
All of that may be true, but it doesn’t address my argument.
Zippy,
I apologize if I’m not following your line or argument here, but I’m trying to posit that the state does not, in fact, enforce the civil marriage contract in any way that can be remotely likened to fairness, equity or other areas of contract law.
Specifically, current domestic relations law is at odds with most contract law in that one of the parties can choose unilaterally (by way of no-fault or quasi no-fault divorces) to terminate the contract without proving breach on the part of the other party and still be rewarded for doing so (at a minimum by extracting child support).
To that end, the Catholic Church should stop requiring its practitioners to engage in a civil arrangement that is hostile to the sacrament. The state would still have its tentacles in the child custody arena, as it does for any other unmarried couple who produce kids, but a great many other hazards would be avoided.
hurting:
I’m trying to posit that the state does not, in fact, enforce the civil marriage contract in any way that can be remotely likened to fairness, equity or other areas of contract law.
This is true, in spades. There is no rational way around trying to fix this though: the libertarian short cut doesn’t work for reasons given in the post and in other threads.
To that end, the Catholic Church should stop requiring its practitioners to engage in a civil arrangement that is hostile to the sacrament.
Whether the Church requires it or not, and what paperwork is and is not required, doesn’t change the fact that it is a civil contract though. You and I can enter a civil contract with a handshake, and a wedding ceremony in front of witnesses is much more than a handshake. In order to get out of the marriage business the State has to take something which is on its face a contract[*] and treat it differently. It can’t – literally can’t – do that without a specific, concrete, official, authoritative understanding of that thing. That was the point of my usury comparison.
[*] That it is a contract does not imply that it is nothing but a contract.