The indispensable Jennifer Roback Morse argues that privatizing marriage is impossible. I’m persuaded that she’s right with respect to the position she chooses to debate, but I wonder how she’d argue against (?) a different position, one that required everyone who chose to affiliate with another to enter into a state-defined civil union (which could not be called marriage) and left the definition and solemnization of marriage to churches. This is not the privatization of marriage as she defines it, but it does deprive the advocates of same-sex unions of the ability to use political or judicial power to claim the cultural high ground. It protects those who understand marriage as Roback does from having to concede in the face of those assertions of political or judicial power.
I’m aware of at least some of the arguments against this position. Above all, it could be said to represent a retreat in the high-stakes public argument of the meaning of marriage. If you think that that argument can still be won (which requires more than simply being convinced of the quality of the arguments on the side of “traditional” marriage), then you’d be foolish to retreat in this way.
In addition, you could argue that nothing prevents the advocates of same-sex unions from using political or judicial power to define their preferred position as marriage, once they were able to do so. According to this argument, defenders of traditional marriage may well gain nothing through this form of privatization.
Finally, to the degree that the law represents the cultural high ground, might it not follow from the form of privatization I’ve sketched that “marriage” would eventually lose its cultural heft and that civil union would do the work and bear the social imprimatur that now attaches to marriage? In other words, wouldn’t this proposal at best postpone and at worst ensure the cultural defeat of traditional marriage?
So, dear readers, what do you think?
April 2nd, 2012 | 2:10 pm
“Before leaving the question of divorce, I should like to distinguish two things which are very often confused. The Christian conception of marriage is one: the other is the quite different question – how far Christians, if they are voters or Members of Parliament, ought to try to force their views of marriage on the rest of the community by embodying them in the divorce laws. A great many people seem to think that if you are a Christian yourself you should try to make divorce difficult for every one. I do not think that. At least I know I should be very angry if the Mahommedans tried to prevent the rest of us from drinking wine. My own view is that the Churches should frankly recognise that the majority of the British people are not Christians and, therefore, cannot be expected to live Christian lives. There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.” – C.S. Lewis, ‘Mere Christianity’
April 2nd, 2012 | 2:47 pm
I am sympathetic to the idea that true marriages only occur in churches. But there are problems, as Morse points out. Leaving the definition and solemnization of marriage to the churches is not a solution, because the church is not a legal authority able to adjudicate family controversies. Defining an institution without a legal authority to enforce that definition is a distinction without a difference. And anyway, if each church has a different notion of validity, that’s not much of a definition, is it?
April 2nd, 2012 | 2:50 pm
People tend to think that religious marriage was the early norm, and somehow the state took it over. It really is pretty much the opposite. I have quoted this numerous times from McKenzie’s Dictionary of the Bible, but here it is again:
This is marriage as Jesus knew it.
For roughly the first millennium after Jesus, Christians married not in religious ceremonies, but the same way anyone else in their time and location married.
Marriage pretty much “belongs” to the state in the West. And of course in the United States, it belongs to individual states. I don’t see how it would be possible to convince all 50 states to give up on marriage and instead institute some form of civil union. Say this somehow happened. What becomes of separation and divorce (and annulment)?
Of course, in the Catholic Church, something like this scheme exists. Baptized Catholics who marry in a civil ceremony are legally married, but they are not “really” married. I think one has to ask oneself which is of more practical importance, civil marriage, or (Catholic) sacramental marriage? Those who remain in a sacramental marriage (because they don’t or can’t get an annulment) but who civilly divorce are, for all practical purposes, divorced. So it seems to me if such a scheme as is being discussed here were to be put in place (civil union, religious marriage), it would be religious marriage that would be the loser.
April 2nd, 2012 | 3:01 pm
I wish your solution were physically feasible. I don’t think it would pose a radical threat to tradition marriage. It would make it a clearly distinct option and insulate it from some changing cultural norms.
It is the case that balkanizing marriage options would lend a bit of credence to moral relativists (“All options are valid, just pick whichever suits you best”). But I think it’s a mistake to expect marriage reform to single-handedly address that broader problem.
April 2nd, 2012 | 3:26 pm
None of that speaks to the reality of the numbers of children born ouside of any kind of legal or moral arrangements. People are already privatizing marriage, in a sense, by entering into unions without formalities. They do not consult the state or the church. Partly, this is a result of the ease of divorce — what is the point of making any contract so easiy broken?
April 2nd, 2012 | 7:13 pm
After reading the article of Mrs. Morse, I think I have detected 3 fatal flaws in her reasoning.
1. She seems to equate the reason of marriage as a definition of parenthood. This is patently false. Yes, the biological parents are the mother and the father, but that doesn´t make them “parents”. Of that was the case, couples who adopted child could not be counted as “parents” in the legal sense of the word. So why homosexual couples who marry couldn´t have the same rights in that respect those heterosexual couples who do?
2. She says that the “overarching legal authority” that resolves disputes related to marriages (understood as a contract) is always government, thus implying that government is the one which decides the causes of divorce and separation, which makes impossible to get it out of the business of marriage. Leaving aside that not all libertarians (you know, anarchists for instance) do not believe or accept the existence of the state, even if the case that government is the necessary entity to resolve such disputes, one still has to wonder if that is carte blanche for the government to decide over individuals, and specially the contracts signed between the persons in this relation. In other words, the government role can be minimized to just an arbiter of the contract that private persons in a marriage. The idea will be to pass laws regarding marriage that point in this sense. Nothing impossible in conception.
3. Mrs Morse claims that:
“The government is already deeply involved in many aspects of human life that affect people’s decisions of what kind of relationship to be in. For instance, government’s policies regarding welfare, health care, and housing have contributed to the near-disappearance of marriage from the lower classes, not only in America, but throughout the industrialized world.”
Which makes me think: If Mrs. Morse is a libertarian as she claims (a very doubtful claim, after reading this article), why she selectively opposes and denounces some forms of government intervention on private life and the relationships people get in (like welfare, health care or housing), but she wants the state to enforce others (like heterosexual marriage, Christian religious orientated marriages)?
April 2nd, 2012 | 8:43 pm
Being that the purpose of this particular political storm is not to open traditional marriage to Homosexuals, but to destroy traditional marriage by redefining it, moving marriage to the privacy of a church would only increase the already significant pressure on these institutions to extend their blessing to homosexual unions; there is no such thing as privacy anymore, not in your own house, or inside your own head (That is the meaning of “Hate-crime” legislation). Everything is now public space, and so open to the manipulations of politicians. How ironic that we have arrived here by way of the invention of a right to privacy!
April 2nd, 2012 | 11:05 pm
Maxim –
What if you were wrong about that?
April 3rd, 2012 | 12:29 am
Maxim:
If the state is left aside from the the bussiness of marriage, who will force the churches who disagree with homosexual marriages to accept it?
April 3rd, 2012 | 1:56 am
“Leaving the definition and solemnization of marriage to the churches is not a solution, because the church is not a legal authority able to adjudicate family controversies. Defining an institution without a legal authority to enforce that definition is a distinction without a difference.”
Churches certainly have moral authority over their more devout members. I believe there are rabbinical courts in New York that adjudicate disputes among Orthodox Jews — their rulings have no legal force, of course, but disobeying the court might result in one’s being shunned by the community.
Why can’t this be a model for serious, religious Christians? The state has sole legal authority to back up its decisions concerning family law with force but then that force is regulated by secular principles decided by the federal and state constitutions as well as laws passed by democratic assemblies. There is no reason why these laws should track the principles of any particular religious sect and, indeed, the two may come in direct conflict.
April 3rd, 2012 | 3:37 am
Dr Morse’s argument is a timely reminder that marriage is not, primarily, a contract, but a civil status.
The great French jurist, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution? What is the unique legal rôle of marriage?” His answer, “The heart of marriage is not the couple, but the presumption of paternity,” was endorsed by the French Senate in 2005: “The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.”"
As the British philosopher Bertrand Russell remarked: “But for children, there would be no need of any institution concerned with sex. it is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.”
It is surely no coincidence that mandatory civil marriage was introduced on 9 November 1791 by the same Revolution that had just converted ten million landless peasants into heritable proprietors
April 3rd, 2012 | 4:53 am
David Nickol,
Marriage, by definition, is not a private contract. Marriage takes place before the community. Is there a culture, besides the modern West, where two people just marry as they were signing a business contract?.
Even the most primitive of primitives celebrate marriages.The community is involved in and is certainly interested in the fact of marriage. Among other things, the community is informed that these two people are now taken.
The modern Americans have wandered so far away from historical norms that they stumble over the quite basic human facts.
April 3rd, 2012 | 8:49 am
Joseph, an interesting article but it seems it is based on a false premise that being: Same-Gender Marriage will not be solemnized in churches. Although the issue of the state recognizing an establishment of religion, i.e. The Sacriment of Marriage, is on constitutionally thin ice, the likelihood that the state will abandon marriage for civil unions is near zero. But even if that was accomplished there will still be some Same-Gender Civil Unions legally referred to as “marriage” because there ARE some churches that will solemnize them. Thus depriving the “Traditional” Marriage crowd of their want.
April 3rd, 2012 | 10:00 am
but I wonder how she’d argue against (?) a different position, one that required everyone who chose to affiliate with another to enter into a state-defined civil union (which could not be called marriage) and left the definition and solemnization of marriage to churches.
1. Seems like a free speech problem. If your state issued marriage license says ‘civil union’ or whatnot on it and you go around calling yourself married, setting your Facebook status as married, what’s going to happen? Will the FBI arrest you and put you on trial unless you can produce a document from a church of any sort that says you’re married?
2. Speaking of which I happened to browse a Christian book/gift store a while ago. In the back was a whole section of ‘church supplies’. That means for less than $50 any ding dong in the world can create a ‘church’ and issue marriages galore. So if you’re serious about #1, well it seems like a pretty pointless thing to fight for.
3. Let’s just say perhaps you meant that it should become a social custom for people to not refer to couples with a civil union as married unless they got married in a private church…not a law you’d inflict on people. The fact is just about any type of marriage you’d likely object too (and let’s face it, you’re only talking about SSM…no one is upset that New Gingrich is referred to as a married man despite the fact that in the eyes of the Church to which he recently converted he cannot be married to his current wife), will have a church that will do it. So yea even the gay couple down the street would be able to say they are married since there are churches that will do SSMs.
So what then is the point of your request? You’d like the fine print of municiple marriage licenses to just read ‘civil union’ and avoid the word marriage? I suppose in itself that’s relatively harmless but why it would merit anyone putting a lot of energy into it seems to elude us.
April 3rd, 2012 | 10:08 am
Marriage, by definition, is not a private contract. Marriage takes place before the community. Is there a culture, besides the modern West, where two people just marry as they were signing a business contract?.
Gian,
In the West, up until the Council of Trent (16th century), clandestine marriages were considered valid by the Church. All that was necessary for a valid marriage was some formal exchange of vows between a man and a woman, with no witnesses.
April 3rd, 2012 | 10:28 am
Mark,
I believe there are rabbinical courts in New York that adjudicate disputes among Orthodox Jews — their rulings have no legal force, of course, but disobeying the court might result in one’s being shunned by the community.
I don’t know about their family rulings but they do have legal force if the parties agreed ahead of time to be bound by the ruling of the rabbinical court. A consultant I once did business with had a dispute by a fellow Orthodox Jew and he agreed to the rabinical court because he felt it was the religious thing to do. He ended up losing and wound up with a judgement against him enforceable in civil law courts because he agreed ahead of time to the arbitration and its terms.
Why can’t this be a model for serious, religious Christians?
Well the Catholic Church has a system of cannon law, even lawyers. But I don’t believe you can use the system to, say, sue fellow Catholics. I think the main obstruction you’d have is that most Christian denominations do not have a critical mass of lawyerly minded people to create a fully functional private legal system. The second problem is that, in the US esp., many Christians move around from Church to Church and churches compete for parishoners. A private law system in this type of environment would suffer from venue shopping.
Michael PS
Good to still see you’re hyping Jean Carbonnier here but expanded a bit to add Bertrand Russell. I still think your analysis suffers from serious flaws. To whit:
1. French law is not American law and, sorry to break it, is not necessarily to be taken as the culimination of all legal wisdom.
2. Carbonnier’s argument falters in that it doesn’t account for France’s PACs which are like civil unions but without the paternity assumption of marriage. Since so many heterosexual couples opt for PACs, and since so many heterosexual couples who do so can be expected to have children, it makes absolutely no sense to say that the state’s interest in marriage is children. If it was why create an alternative type of ‘marriage-lite’ whose chief purpose seems to be to facilitate producing children without a clear legal paternity presumption?
I suspect it’s nothing more than a holdover from France’s days as a monarchy where it was standard for a King or aristorcrate to have multiple children from multiple women but marriage provided for a relatively ‘objective’ way to decide who inherited the throne when the chap passed on. PACs seem to be a great way to decide who is the ‘legitimate child’ who gets to inherit the title and who is a mere bastard whose entitled to nothing…but that’s hardly defending the interest of children themselves!
April 3rd, 2012 | 11:33 am
“In the West, up until the Council of Trent (16th century), clandestine marriages were considered valid by the Church. All that was necessary for a valid marriage was some formal exchange of vows between a man and a woman, with no witnesses.”
David, this statement plays fast and loose with the truth. NONE of the sacraments were “officially named” until the Council of Trent, because the Tradition behind each was so thorough, the history so deep, and the reality so undisputed and devoid of debate–until the Protestant Reformation–that there was no need to remind people of them.
After all, why would Henry VIII have to seek an annulment from the Pope for his marriages in the 1520s–and why was it such a serious matter when the Pope wouldn’t grant the 2nd–if there wasn’t authority of the Church over them prior to 1547?
It would seem the Church did claim such–and it was widely recognized–long before Trent.
Anyone passingly familiar with the history of the Church knows it made claims on marriage and dignified it from the start. This is why Jesus was asked about marriage by the Pharisees, and why He claimed, “What GOD has joined together, let no man put asunder.” Mark 10:9
Translation: Marriage is from God; the State doesn’t have authority over it’s creation or nullification.
Consider also the Apostolic letters, and the dignity afforded marriage in that deacons, priests, and bishops were only allowed to be men, “married only once…and found of firm character”.
Consider that St. Valentine was martyred/murdered for officiating at weddings, precisely because the State/Empire claimed authority over them, and Valentine heartily disagreed.
Finally, “clandestine marriages” as you call them, were allowed more because of the shortages of priests to witness Sacraments (some people might not see a priest for months or years as they made their rounds), but they were still required to eventually receive approval by the Church, and could suffer civil and ecclesiastical consequences for breaching the marriage covenant.
April 3rd, 2012 | 11:38 am
Booton
I mention French law, because it is the system that introduced mandatory civil marriage and which has been copied throughout Europe.
Carbonnier’s analysis was expressly intended to distinguish between a marriage and a civil union. After all, the defining characteristic of marriage cannot be something that it shares with a PACS [pacte civil de solidarité]. To the best of my knowledge, no alternative analysis of the difference between them has been attempted.
Unless “marriage” and “civil union” are to be two merely arbitrary labels for the same thing, they must refer to two significantly different institutions.
April 3rd, 2012 | 11:42 am
“Marriage in Israel was neither a religious nor a public concern; it was a private contract, and it is this conception which leaves so little room for it in Hb law, which deals only with the exceptional cases. The contracting parties were not the bride and groom but the families, i.e., the fathers of the spouses; the brothers of the bride had the disposal of the girl if the father were dead.”
Absurd. Everything in Ancient Israel was a religious concern. And it was certainly also a public concern; the fact of being discussed in the Torah made it a public concern.
April 3rd, 2012 | 11:47 am
“Gian,
In the West, up until the Council of Trent (16th century), clandestine marriages were considered valid by the Church. All that was necessary for a valid marriage was some formal exchange of vows between a man and a woman, with no witnesses”
The act of recognition as valid is a claim of public concern.
April 3rd, 2012 | 11:56 am
Artaban,
Clearly the Roman Empire had marriage long before Romans were mostly Christians and the pagan religions of the Roman Empire had either contradictory or poorly structured marriage systems to begin with. Likewise marriage existed in all civilizations, even ones that never heard of Christianity in any significan form.
Michael PS
Carbonnier’s analysis was expressly intended to distinguish between a marriage and a civil union. After all, the defining characteristic of marriage cannot be something that it shares with a PACS [pacte civil de solidarité]. To the best of my knowledge, no alternative analysis of the difference between them has been attempted.
So turn to what purpose this distinction serves. You would have us believe its purpose is to clearly establish paternity. I think that’s laughable. If that was the purpose, the law would not allow heterosexual, fertile, couples of childbearing age to enter PACs or if it did so to automatically require them to switch over to marriage should the woman become pregnant.
I would speculate the purpose of the distinction is to faciliate adultery. What does the presumption of paternity do? Well if you’re a woman married to an unfaithful man you have a material incentive to remain married to him, no matter how many bastards he makes with his mistresses your children are legally entitled to his estate. If you’re an unfaithful man, well you have an incentive to push your wife towards tolerating infidelity as well as protection against the claims of your mistresses. If you’re a poor schulb of a man, well feel free to sleep with as many wealthy, unhappy housewives as you please. Their husbands will be legally responsible for them.
I recall in a previous debate you claimed a great credit to this system was the number of ‘landed estates’ that have been kept inside of families for multiple generations. This is indeed a metric of success that one would expect of a culture that despite a revolution, still places greater value to aristocratic rather than family values. But why this should be applicable to countries like the US which never had a monarchy isn’t clear to me at all. What is clear to me is that despite the multiple attempts to spin it as such, it has nothing to do with the welfare of children…it is in face highly indifferent to them.
April 3rd, 2012 | 12:07 pm
The chief interest of the state in marriage is the regulation of property. As we are a commercial society and have never been a feudal society it does not become the states business.
I would prefer that their be some intervening institution which could claim jurisdiction. In one SciFi society I made there were two marriage ceremonies one religious and one through the clan. The state had no official interest and would only be there if there was an unusual dispute.
The point of this is actually relevant. It is that I think marriage is undefinable except in the light of public convention. However I also think that there is a difference between the public and the state, and between the public and the sum total of individuals. And marriage is properly a public concern. Saying it is a religious concern does not explain why most religions generally accept the validity of marriages from other religions even if considered false in other respects(imagine if Protestants and Catholics called each other fornicators for instance; but curiously they never have, at least not because they were not married in the right church). The reason is that it is the public conventions that define marriage. But not necessarily or desirably the state.
The problem today is that it is edging to a point in which there is no public besides the church and state or none that is taken seriously.
April 3rd, 2012 | 12:43 pm
Ultimately it all depends on whether you recognize marriage as a contract, and as linked to procreation.
Gays want to have it both ways: they like to insist that marriage is not about procreation, and that there are absolutely no “procreative” benefits of marriage – but I have yet to argue the point with a single gay marriage advocate who was willing to agree that, if it should be determined that certain benefits are procreative in nature, that gays should be deemed ineligible for them (an example: extending adultery laws such that it is viewed as fraud to make a baby with anyone except your spouse, with exceptions limited to helping only biologically infertile individuals – and excluding “lifestyle choice” infertile couples).
Because for all that they try to argue that marriage is not procreative, same sex marriage advocates are also arguing that we should stop emphasizing biology as an important or even relevant component of what constitutes a family, and should instead recognize the government’s blessing as the source of a family’s legitimacy.
And, they argue, children need to be taught that having two mommies or daddies is just as good as having both kinds of parent, and that having biologically not-related parents is just as good as having one’s own real parents – not just in crisis situations, when a child is severed from his own real birth family because of unanticipated problems, but whenever any grownups wish to buy or sell a child for any reason at all.
Biology is to be replaced by “choice” – and, as usual, some people are to get more “choice”, and other people just get to be stuck with the consequences of being or not being “chosen”.
April 3rd, 2012 | 12:46 pm
(an example: extending adultery laws such that it is viewed as fraud to make a baby with anyone except your spouse, with exceptions limited to helping only biologically infertile individuals – and excluding “lifestyle choice” infertile couples).
I think it’s important to note the distinction between individuals having rights (or being discriminated against) vs. couples having rights (or being discriminated against).
If you recognize that individuals are entitled to equal treatment – but you don’t recognize couples as automatically having all the same rights that individuals do – then one can logically come to the conclusion that banning interracial marriage is discriminatory, and banning childless people from marrying is discriminatory, but banning same-sex marriage is not.
April 3rd, 2012 | 12:59 pm
The chief interest of the state in marriage is the regulation of property. As we are a commercial society and have never been a feudal society it does not become the states business.
The state doesn’t enforce contracts?
How could anyone enter into a contract if there is no enforcing agency? Contracts become meaningless if there is no way to enforce a breach, or resolve disputes.
And how can the state enforce a contract if it isn’t able to tell what is and isn’t a contract?
What if you and I enter into a contract, and I defraud you, and we go to court and you say “this person defrauded me”, and I say, “I didn’t know it was a contract”. How is the court going to decide how to resolve this issue, if a contract can be whatever anyone says it is?
Marriage is not “just” about “property”. It differs from ordinary property contracts because it is centered on procreation. Take out the family-building aspects of marriage, and all you’ve got left are a bunch of customs that make little sense now that they’re unhooked from their original purpose.
(just a question: is it viewed as being in bad taste to throw rice at gay couples’ weddings?)
April 3rd, 2012 | 1:13 pm
Absurd. Everything in Ancient Israel was a religious concern. And it was certainly also a public concern; the fact of being discussed in the Torah made it a public concern.
jason taylor,
What credentials do you have that we should accept your dismissal as absurd something said by John L. McKenzie, S.J., in his Dictionary of the Bible?
From Amazon:
April 3rd, 2012 | 1:24 pm
Blake:
Excuse me, what are the “procreation” benefits that non married persons don´t enjoy? Are you saying non married persons cannot procreate or cannot be called parents of the child they procreated just cause they weren´t married? Could you elaborate?
April 3rd, 2012 | 1:47 pm
Booton
There are three possible arrangements for couples: unregulated cohabitation, a PACS/Civil Union or marriage, each with different legal incidents, for even unregulated cohabitation is not without some legal consequences.
In the United States, Hawaii and Illinois have a similar trichotomy.
It should be possible to draw a clear and principled distinction between the three.
Would you care to try?
April 3rd, 2012 | 4:25 pm
David,
Jason Taylor is correct. I’m afraid the blurb you quote from Amazon is an example of something called “marketing”.
Not once in my graduate studies in Theology did I come across the work of McKenzie, or his “acclaimed” Dictionary. Probably because we deal with more extensive and modern works, published after 1965.
While citation of a dictionary like McKenzie’s might pass muster for a high school paper, no graduate student would use it as bedrock to back the credibility of a claim. Rather, he/she would reference more highly acclaimed and comprehensive works like The Anchor Bible Commentaries, Sacra Pagina series, or in the case of a one-volume work, The New Jerome Biblical Commentary.
The last is the authoritative beginning point in serious Biblical exegesis, and I’ve never been in a seminary library (Protestant or Catholic) bereft of a copy.
I’m just a whipper-snapper, but if you want someone with credentials to tell you that passage is mistaken or taken out-of-context, I can stack a Theology degree (M.A.P.S. in Theology, Aquinas Institute of Theology, Summa Cum Laude) against McKenzie’s…I could talk to the others in my department, too…
April 3rd, 2012 | 4:48 pm
Excuse me, what are the “procreation” benefits that non married persons don´t enjoy? Are you saying non married persons cannot procreate or cannot be called parents of the child they procreated just cause they weren´t married? Could you elaborate?
If you’d read the article that this blog links at the top of the page, you will see your question has already been addressed.
April 3rd, 2012 | 4:53 pm
jason
The chief interest of the state in marriage is the regulation of property. As we are a commercial society and have never been a feudal society it does not become the states business.
Actually quite the opposite IMO, since a commercial society has many more transactions of much greater complexity than a feudal one, marriage remains a real interest of the state. Consider things like inheritance, liability, bankruptcy, and so on. All these things get intertangled with marriage. For example, if D.Trump rips you off $500,000 you wouldn’t be too amused if you discovered you couldn’t sue him because he transferred all his property into his wife’s name and was technically broke! Or consider a law against nepotism. In order to know if a mayor has violated the law by giving his wife’s company a no-bid contract, you have to know if the mayor is married!
Michael PS
It should be possible to draw a clear and principled distinction between the three.
I did. The two are designed to facilitate aristocratic values where a premium is placed on sorting children into legitimate and illegitimate heirs. This would be very important in a society with a class based monarchy. This would also be important in a society of, as you once put it, ‘large landed estates’ to be kept within a family’s ownership and control for multiple generations. To accomplish this, it makes sense to give legitimate heirs rights over and above illegitimate ones.
The interests NOT represented there, though, are those of the actual children who may either get less or more than they are justly entitled too depending upon the luck of whose womb they emerge from, a wife’s or mistress’s!
I would quibble with your inclusion of ‘unregulated cohabititation’ as a category. To regulate something requires the state to track, monitor and otherwise expend energy. Unless the state wants to track where everyone is living at all moments, the default value for cohabitition will be ‘unregulated’.
I also quibble with your lumping Hawaii and Illinois in with France. Clearly in the US civil unions were established to provide same sex couples with marriage benefits while trying to give anti-SSM the satisfaction of calling it by a different name.
April 3rd, 2012 | 5:02 pm
Also Michael PS, cohabitation is a different category from marriage/civil union law IMO. A couple may be married or in a civil union of some type but may not live with each other. Likewise plenty of people live with each other without anything like a marriage or civil union relationship (i.e. roommates, ‘freeloaders’, etc.). So I think we should confine ourselves to two legal categories for marriage, marriage and civil unions. What is the distinction between the two, if any, and is that distinction important?
In the US I think the record is clearly that the distincion is only in the name and its important because of politics. In France I think you’ve made a case that the distinction may be regarding paternity but that leaves you having to explain why PACs (aka civil unions) are available to straight, fertile couples. Since those couples are highly likely to make babies, doesn’t the state have an interest in knowing whose the daddy?
In short no. The purpose of your country’s law isn’t to help babies find their daddies, it’s to sort babies into buckets of legitimate and illegitimate and assigning different legal entitlements to each. That is very important in a society that has a long history of power and wealth being something you inherit. It’s not very important in a society that places greater prestige on the so-called ‘self made man’.
April 3rd, 2012 | 5:34 pm
Blake:
I read the article. I just don´t find the word priviledge nor any other that may be interpreted as it, regarding marriage. You could still answer my questions regarding the nature of those priviledges and parenting…
April 3rd, 2012 | 5:42 pm
By the way…if conservatives are so interested in knowing who are the biological parents of a baby…don´t DNA tests perform a more precise role than marriage for that particular purpose?
April 3rd, 2012 | 7:18 pm
While citation of a dictionary like McKenzie’s might pass muster for a high school paper, no graduate student would use it as bedrock to back the credibility of a claim.
Artaban,
I think the point I would make here is that I have cited something people have questioned, and it may not be the most definitive work on the subject of marriage in the Old Testament, but it is the most authoritative text that has been quoted in this thread, since no one else has quoted anything, let along anything that contradicts it.
The quotation from Amazon is of course trying to promote the book, but it is nevertheless true that McKenzie was president of both the Catholic Biblical Association of America and the Society of Biblical Literature. I respect your degree in theology, but it does not seem that you are a Biblical scholar, and if forced to choose between an interpretation of the Bible by John L. McKenzie, S.J, or you, I will choose McKenzie. Also, I will point out that McKenzie is not making a theological assertion. He’s making a historical one.
April 3rd, 2012 | 7:36 pm
David, this statement plays fast and loose with the truth. NONE of the sacraments were “officially named” until the Council of Trent . . .
Artaban,
You accuse me of playing fast and lose with the truth, but you simply have your facts wrong. Please read the following:
Sacramental theology in the modern sense didn’t begin to developing in the Church until after the first thousand years, but it was certainly well developed by the Council of Trent. See the following:
April 4th, 2012 | 3:42 am
Sergio Méndez
The state’s concern is not with determining who the biological parents are, but, rather, with ensuring, as far as possible, in a free and democratic society, that the legal, biological and social realities of paternity coincide. To date, no better, simpler, less intrusive means than marriage have been found
April 4th, 2012 | 3:44 am
Booton
I include unregulated cohabitation because it does have legal consequences, both in private law (it will found a claim for loss of dependency in the case of wrongful death; “causa” in contractual and unjust enrichment claims) and in public law (in relation to welfare benefits, where people “living together as husband and wife” are usually assessed as if they were married)
You treat civil unions as an alternative to marriage, but many of the jurists who supported their introduction saw them as an alternative to cohabitation. They provide a sort of “one-stop-shop,” where cohabiting couples can draw up an agreement to regulate their legal affairs and also provide default provisions (“unless the parties otherwise agree &c”), much as the Civil Code already does for sale, partnership, mandate and other contracts. A PACS does nothing the couple could not have done for themselves, with the assistance of a good lawyer.
Viewed in that light, the law treats the children of such unions just like those of any other unmarried couple. Their position is unchanged. The presumption of paternity in marriage rests, as the Senate rightly pointed out “on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children.” Now, both of these are lacking in a PACS: there is no obligation of fidelity (and no action for adultery against a third party) and no undertaking to raise the couple’s children.
April 4th, 2012 | 6:26 am
Artaban.v.David
Not once in my graduate studies in Theology did I come across the work of McKenzie, or his “acclaimed” Dictionary. Probably because we deal with more extensive and modern works, published after 1965.
I noticed in this exchange between Artaban, elited holder of a M.A.P.S. in Theology and in general SuperSmart(tM) enhanced chap, versus David, a mere amateur who actually feels he can aquire knowledge by reading books about a subject, Artaban failed to actually refute any point David made. He simply asserted that he has read deeper books than David has. He hasn’t actually cited anything that demonstrates David’s assertion was wrong.
I’m happy to see, though, that the Aquinas Institute of Theology offers a minor degree in insufferableness.
April 4th, 2012 | 10:08 am
Here’s something quite old (1914), but I am wondering if anyone can come up with something more modern to contradict it. It’s from The Culture of Ancient Israel by
Carl Heinrich Cornill.
Where I have placed ellipses, I omitted this part:
There are a number of things wrong with that passage that I won’t go into here, but they have nothing to do with marriage in ancient Israel.
April 4th, 2012 | 10:21 am
Michael PS
True cohabitation does have legal consquences, but it is different from marriage IMO. There are married couples that do not cohabitate and there are couples who cohabitate but do not have a marriage type relationship (i.e. roommates). In short lots of things have legal consquences.
Viewed in that light, the law treats the children of such unions just like those of any other unmarried couple. Their position is unchanged. The presumption of paternity in marriage rests, as the Senate rightly pointed out “on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children.” Now, both of these are lacking in a PACS: there is no obligation of fidelity (and no action for adultery against a third party) and no undertaking to raise the couple’s children.
You haven’t addressed the problem that the presumption of paternity is in effect a cover for adultery. An unfaithful wife cannot be questioned by her husband and the wife of an unfaithful husband is given a material incentive to stay in the marriage. This is not about making biological parenthood coincide with social parenthood. This is about family values….by that I mean not the way we view them today but the 1950′s Mad Men style of family values where it wasn’t so much about avoiding infidelity as avoiding getting caught in infidelity. You had your mistress but you made sure the wife either never found out or barring that you were never so blatent about it in front of the wife or neighbors that the wife couldn’t put on a front that all was normal and happy.
This little game is very important in a culture where inheritance means a great deal (either inheriting a title of nobility or an estate). By creating a clear set of rules for defining ‘legitimate’ children it opens the door to having free reign to create as many illegitimate children as one wants.
Why then should this quick of French and European law be viewed as anything other than that? An artifact born of the particulars of European culture that have little importance for a society that has not legacy of an aristrocratic structure and does not place great value on inherited wealth?
April 4th, 2012 | 12:29 pm
1. She seems to equate the reason of marriage as a definition of parenthood. This is patently false. Yes, the biological parents are the mother and the father, but that doesn´t make them “parents”.
Actually, it does.
All 50 states in the USA have adopted a set of child welfare guidelines that affirm that children have a right to a relationship with their own biological parents.
The only time it is legitimate to take a child away from his or her own biological parents is when doing so is in the best interest of the child.
Gay marriage is only possible if it is the child who is forced to submit to the “gay’s best interest” standard, rather than expecting the parent to be the one to do what is right for the child.
April 4th, 2012 | 12:33 pm
“He simply asserted that he has read deeper books than David has. He hasn’t actually cited anything that demonstrates David’s assertion was wrong.”
Boonton,
That’s not what David requested. I’m happy to comply with your request for citation from a respected Scripture scholar with wide recognition:
“People today usually think of religion in terms of personal experience. But that isn’t how the authors of the Bible–or other ancient peoples–saw it. The word ‘religion’ comes from a Latin word meaning ‘binding’. To the ancients, religion is what held everything together. Their view of history, culture, politics, and everything else was a religious view.” –Dr. Scott Hahn, “Understanding The Scriptures: A Complete Course on Bible Study”, pg. 12 from “The Didache Series”, 2005.
Professor Hahn is on the faculty at Franciscan University of Steubenville. He holds a B.A., M.Div., and Ph.D. in theology, and the book cited above has the Nihil Obstat and Imprimatur. It’s used nationally in college courses and in many of the better Catholic high schools.
The concept that everything is fundamentally religious–including politics–is not unique to Judeo-Christianity. Islam holds a similar view, hence numerous attempts to get sharia recognized in European civil courts.
David, I owe you an apology, in that while rereading your original argument, I see now you did not explicitly claim the Church didn’t recognize marriage until Trent. I mistook that, given the thrust of your original argument (“People tend to think that religious marriage was the early norm, and somehow the state took it over. It really is pretty much the opposite.”), and thought you were implying such.
I do disagree with your thrust (that marriage was dissociated from religion for much of Hebrew/Western history), and have given some evidence for it. Your later citations (Augustine of Hippo circa 4th century, Council of Lyons 1274, etc.) go further proving the religious dimension than refuting it.
Conduct keyword searches on Biblegateway.com, restricting the results to the Old Testament alone, and here is what you get:
“marriage”: Mentioned 34 times.
“marry”: Occurs 29 times (#5-18 being directly in the books of The Law).
“divorce”: Mentioned 16 times.
Read some of them. God directly connects marriage with his character, in the opening books of the Bible, hence the connection with religion and religious law.
Finally, technically speaking, we don’t have a conception of “the State” until fairly recently in political theory/history. It could be argued one engages in anachronism if trying to assert state marriage as “the norm”, and religious marriage as an exception.
April 4th, 2012 | 12:37 pm
All 50 states in the USA have adopted a set of child welfare guidelines that affirm that children have a right to a relationship with their own biological parents.
BTW a large part of this problem will go away when children-as-civil-rights-issue finally comes into its own.
I have no doubt we will eventually see federal law affirming the civil rights of children, just as federal law has affirmed the rights of other vulnerable/exploited groups.
April 4th, 2012 | 12:46 pm
Re: The Culture of Ancient Israel by
Carl Heinrich Cornill….I have a hard time trusting what he says after this blatant falsehood, “…Ancient Israel recognized only the civil marriage, and indeed, strictly speaking, not even this; for the state so far as we may speak at all of a state within the borders of ancient Israel, paid absolutely no attention to the matrimonial relations of its subjects.”
How then does he explain the the prophet Nathan bringing punishment and judgment from God on King David for his adultery against Uriah in 2 Samuel? How does he explain the ruin that comes upon Israel as a result of the idolatry and polygamy of Solomon later in life (recorded in the Book of Kings–as political a work as one will find in the ancient world/Bible)?
Can it rightly be said Israel “paid absolutely no attention to the matrimonial relations of its subjects” when we are told observant Jewish spouses were to present their firstborn son in the Temple to the Lord, as recorded of Mary in the Gospels?
Really? Does this look like “no attention” to you?!
April 4th, 2012 | 1:03 pm
Artaban
Finally, technically speaking, we don’t have a conception of “the State” until fairly recently in political theory/history. It could be argued one engages in anachronism if trying to assert state marriage as “the norm”, and religious marriage as an exception.
Except the ancients clearly did have such a concept in mind. Certianly the first Christians were well aware that they lived in a society that had authority figures (the Roman Emperor, the various administrative positions under the Roman system, etc.) that were certainly not of their religion. Likewise Jews lived many centuries on and off under captivity of foreign powers. While the idea of a secular state not attached to any particular religion and not making its leader a focus of a state religion is perhaps a modern concept, the distinction between stae and religion I do not think would be lose on an ancient Hebrew or Christian.
April 4th, 2012 | 1:51 pm
Booton
The husband does have a remedy against the adulterous wife, namely a action for divorce; he also has a delictal action against her paramour.
There is absolutely no reason why a DNA test cannot be used in such proceedings. This is no more inconsistent than the Scottish case of Creasey v Creasey (1931 S.C. 9) There, the confessions of the wife, defender, corroborated by independent evidence of clandestine association, warranted the Court in finding that adultery was proved against her, while, not being evidence against the co-defender (as against him, her admissions were mere hearsay) and the evidence of clandestine association being uncorroborated, he escaped; and thus divorce was granted against the wife for adultery committed by her with him, while he himself was assoilzied from the action.
April 4th, 2012 | 2:06 pm
Michael PS
That may in fact be the case, nonetheless the wife’s child is entitled to the husbands estate as his ‘son’ even t hough he isn’t biologically. Likewise the wife can be secure that though her faithless husband may knock up lots of mistresses, none of their kids can claim the title that her son may claim.
Again I don’t mean to be too flip here. I’m sure many Americans might be amused to dismiss France as a nation of sham marriages and extramarital affairs, that is of course a crude, inaccurate and cartoonish image. I’m sure there are strong cultural currents that pull in the opposite direction in France towards supporting fidelity in marriage as an ideal, even if it often fails in practice, even some backed up by legal tools that may be employed by the victim of adultery.
Nonetheless, you cannot claim that marriage law is about trying to make sure biological parents coincide with social ones doesn’t stand up. The paternity assumption which you say is so essential to marriage law is about the *opposite*. Making it easier for non-biological parents to put off a bit of a farce of parenthood.
But here is the problem when you try to extend this to a general argument against SSM. France’s cultural need to keep ‘large landed estates’ and hereditary titles intact from generation to generation has nothing to do with the US nor does it have much to do with marriage as it applies to all of humanity. The US and other countries have next to no trace of such an aristocratic structure to their societies yet still have marriage.
April 4th, 2012 | 2:17 pm
Artaban,
My point is not that marriage in ancient Israel or early Christianity was wholly isolated from religion or religious sensibilities and morality, but rather that in ancient Israel, Jewish marriage was entered into in much the same way that people of similar contemporary cultures entered into marriage, and for a good thousand years after the birth of Jesus, Christians entered into marriage in the same way their non-Christian neighbors did. In ancient Israel, there was no overtly religious ceremony—as there was when, say, a priest or a high priest offered a sacrifice. (In fact, it appears there was no ceremony at all.) Similarly, for Christians during roughly the first half of Christianity, priests did not perform or witness marriages, and no priest was required to validate a marriage. And as I said, in the case of clandestine marriages, the husband and the wife were the only parties in contracting the marriage, and such marriages were considered valid even if illicit. I am quite sure (although I do not have a good source to cite at the moment) that if a baptized Catholic man and woman are stranded alone on a desert island (like in the movie Blue Lagoon) and wish to marry, all they need do is exchange vows, and they are married in the eyes of the Church. No priest is necessary. Priests don’t even perform (sacramental) marriages; they witness them.
I would have thought you would have mentioned the commandment against adultery to argue that marriage in the Old Testament was religious, and I would have responded that there was a commandment against stealing, which does not imply that ownership of property was religious.
I don’t see how a command to present one’s firstborn son at the temple makes marriage (and particularly a marriage ceremony, which is more what I am talking about) religious.
I understand your point that for religious people, it can be argued that in some sense, almost anything—say, chopping wood—could be approached with some kind of religious sensibility. But it would be strange to argue that chopping wood was one of the religious activities of ancient Israel.
I would certainly not argue that Jews in ancient Israel, or Christians in the first millennium, did not feel that marriage was something God intended for humanity. That is clear from Genesis. But marriages in ancient Israel were not presided over by priests, high priests, or rabbis, and marriages in the first millennium were not presided over by priests.
April 4th, 2012 | 3:08 pm
Atarban:
“How then does he explain the the prophet Nathan bringing punishment and judgment from God on King David for his adultery against Uriah in 2 Samuel?”
You mean, when God, as “punishment” to David, decided to Kill the fruit of the adulterous relationship (the baby) and not actually David himself? So much for the “pro life” Yahve…
April 4th, 2012 | 4:30 pm
Sergio Méndez,
I think it is interesting that in Matthew’s genealogy, Jesus is descended from David and Bathsheba. She was, if I am not mistaken, David’s eighth wife.
April 5th, 2012 | 1:36 pm
The husband does have a remedy against the adulterous wife, namely a action for divorce; he also has a delictal action against her paramour.
It is only since the sexual revolution that anti-adultery laws in the US have pretty much disappeared.
I have a feeling that, as this situation works its way through, we are going to be seeing these laws again – and with a new, better, more sophisticated understanding of why they matter.
Unfortunately, I’m guessing we are only coming up on (or maybe just passing) the ‘halfway mark’, as social movements go. We are only just now coming to an awareness that maybe there is such a thing as “too far” when it comes to the objectification of women, that maybe liberal public policies meant to increase freedom can in fact have a negative impact the well-being of children and families (and that this in turn can impact the well-being of the very communities that were supposed to be served by such policies), and that maybe – just maybe – the “family values” crowd could have reasons other than sheer hatefulness and/or other ad hominem misdirections.
April 5th, 2012 | 1:39 pm
We are only just now coming to an awareness that maybe there is such a thing as “too far” when it comes to the objectification of women
I should have said the objectification of children.
Though the reduction of motherhood to mere eggs and wombs – parts to be bought, sold, and rented – is also objectification.
I can’t imagine having a “gestational carrier” for a mother. It sounds dreadful (even worse than the image of one’s “dad” as being a guy who locked himself in a smut closet because he needed some cash!). Especially for those with no adoptive mother to make up the loss.
April 6th, 2012 | 10:36 am
Speaking of objectification of children, note that the paternity assumption essentially works in service of interests other than the child. If your father wasn’t married to your mother, you have to fight to prove your father really is your father and it would seem under French law as an illegitimate child you have an uphill battle to secure an inheritance if your father and the rest of his family wants you out of the picture.
Likewise if your mother happens to have been married to a rich man when she conceived you with a man she was having an affair with, then you hit the jackpot. You are automatically entitled to the estate and support of the rich man who isn’t really your father. Yes the rich man may sue the man who slept with his wife (but if the man is poor what good does a lawsuit do the rich man?). He may divorce the wife and challenge her right to alimony, but then what is that to you since you still have a claim for yourself on him?
This elitist game serves the interests of ‘large landed estates’ and titles to nobility all very well but it’s remarkably indifferent to actual children who may either benefit unjustly from it or be harmed unjustly.
The one place the paternity assumption may benefit both woman and child is when you have a jerk of a husband who seeks to get out of supporting his kid by claiming he isn’t really the father. In older days courts were no doubt wise to treat such claims with great skepticism, even adopting the paternity assumption which almost always eliminates the ability of a husband to make such a claim against his wife and child. But these days DNA testing works a lot better to eliminate any doubts that the husband is the father and when he isn’ the father it reveals that without having to rely upon rumors, innunendo or accusations that can’t be supported with objective facts.
April 6th, 2012 | 9:56 pm
Speaking of objectification of children, note that the paternity assumption essentially works in service of interests other than the child. If your father wasn’t married to your mother, you have to fight to prove your father really is your father and it would seem under French law as an illegitimate child you have an uphill battle to secure an inheritance if your father and the rest of his family wants you out of the picture.
There’s nothing the government can do about it. When people create babies they didn’t intend – or choose to have babies without a family contract – the child is going to suffer, not because the government doesn’t recognize the child, but because one or both of the parents lacks commitment to this family unit.
It’s unfashionable to use the term “broken family” (because it might make the people who do this to their children feel bad), but “broken” is the closest word we have for describing a situation where a child is born into such a situation.
The government has tried to force men to be good fathers to unwanted children, but it can’t really be done: the child who gets exactly what a court orders and not a penny more is not as well-off as the child whose parents are capable of forming an intact family unit (and the child whose parents can do this without divorcing is better off than the one who is stuck precariously balanced somewhere on or in the crack between “two families” – with divided loyalties and conflicting claims.)
What’s worse is that it isn’t just an estrangement between a child and his or her parents: the child is also going to experience weaker ties with his or her entire paternal side, because in the real world, social signalling matters: if your son refuses to marry the woman who bears your child, that is a highly reliable signal warning you that there is something wrong with this situation and you probably shouldn’t trust this woman or expect the child to be capable of forming loyalties of the sort you’d find in an intact family.
April 9th, 2012 | 12:25 pm
There’s nothing the government can do about it
Of course there is, the gov’t can say under the law illegitimate children are no different than legitimate ones, therefore they are no less entitled to your estate just because you neglected to marry their mother.
The government has tried to force men to be good fathers to unwanted children, but it can’t really be done:…
Which no one is talking about. Of course everyone knows the gov’t can’t force a man to be loving towards his child (legitimate or illegitimate), but clearly the paternity assumption is not designed to help the child. It’s designed to help the man and the adult members of the family. Namely it’s designed to help an unfaithful man secure a ‘legitimate’ heir to his title or estate while ensuring that both the man and his lawful wife and extended family can keep illegitimate children at arms length legally.
April 9th, 2012 | 3:18 pm
There’s nothing the government can do about it
Of course there is, the gov’t can say under the law illegitimate children are no different than legitimate ones
But they’ve tried that.
You can’t make a lie into truth by simply passing a law. Illegitimate children are rejected by their parents, which is the source of their difference.
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