Stephanie Coontz: Taking Marriage Private

Posted by Kendall Harmon

Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.

As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.

Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.

Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.

Read it all.

Filed under: * Culture-WatchLaw & Legal IssuesMarriage & FamilyReligion & Culture

24 Comments
Posted November 26, 2007 at 12:08 pm [Printer Friendly] [Print w/ comments]



1. Marty the Baptist wrote:

Let churches decide which marriages they deem “licit.”

Duh, they already do this.

But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.

How about we ask the voters what relationships they want sanctioned by the State?

November 26, 1:22 pm | [comment link]
2. James G wrote:

This article is a perfect example of what happens when marriage loses it’s proper definition and becomes, in essence, “shackin’ up” with tax benefits.  When marriage is defined (as it is in America) by what legal benefits and responsibilities it confers as opposed to what it is by its nature then there becomes no valid reason to deny to others who are not married those same benefits (no one wants the responsibilities and we’ve gone a good way to eliminating much of the responsibility inherent to marriage).

If we want marriage to survive as anything resembling its true definition we must stand up and “shout from the rooftops” that definition.  Marriage is not about joint tax returns or survivor benefits.  Marriage is not about hospital visitation or health insurance for spouses.  Marriage is the life-long and indissoluble union between one man and one woman so that the two become, not two, but ONE flesh; ordered toward mutual help, procreation and the rearing of children.  For Christians marriage is also a sacrament that mirrors Christ’s relationship to His bride, the Church.  Accept no substitution and allow no dilution.

James G

November 26, 1:31 pm | [comment link]
3. Veronique wrote:

You’re right, James.  All this author (and many) want is a legal arrangement, a government-sanctioned pre-nup agreement.  In Canada this is already the case; anyone living together for more than 3 years, I think, is deemed married for the purposes of all social legislation (employee benefits and the like).  Not sure which came first, but it correlates nicely with the evidence that very few people actually get married anymore in Canada.  Most feel there is no point, since they already have all the benefits.  Did I mention that of course hardly anyone goes to church; religion is very passe…  So if the government tells its citizens they don’t need to get married, and they don’t go to church and don’t hear about God’s plans for them, how do we argue the case for marriage ?  It’s a long, long way… perhaps more Alpha courses !

November 26, 1:50 pm | [comment link]
4. Br. Michael wrote:

So what Canada has done is institutionalize common law marriage.  Or as James so accurately stated: “shackin’ up” with tax benefits.”

November 26, 1:56 pm | [comment link]
5. Ad Orientem wrote:

Re: #1
I concur voters should have the determining say in this.  As a voter I have long argued for something along the lines of what the author is proposing.  The term “marriage” does not in my mind belong to the state.  “Marriage” is a religious sacrament not a secular institution.  That said I do understand that in an orderly society we need rules governing certain aspects of relationships, i.e. laws against sexual relations with minors, coerced partnerships, abuse and the like as also laws regulating government benefits. 

However I object to the use of the term marriage by the state in these matters.  I think a sensible approach would be to require ALL citizens who wish to have their particular relationship recognized for government benefits etc. to appear before a civil magistrate or municipal clerk and have their union legally recorded.  Those who then wish to be “married” should go to their respective place of worship and ask their clergy to marry them.  This would return marriage to its proper place, and leave its regulation up to the church or synagogue. 

As an Orthodox Christian I have very definite opinions about who should be allowed to marry.  But I also recognize that we live in an increasingly religiously pluralistic society.  No one group can or should be able to set its standards into law governing everyone else.  The civil laws which would govern domestic unions aught to be forged by a consensus of the people reflected in the decisions of their duly elected legislatures.  Removing the term “marriage” from the law books where it does not belong would be a good start in defusing some of the highly charged battles that have raged over the protection of marriage and other silliness. 

Marriage does not need to be protected from gays or liberals (except those who want to keep it under the state’s control).  Marriage needs to be protected from the state.  Until we collectively inform the government that it needs to butt out of what is none of its business we will continue to have needless battles where competing groups attempt to define for everyone what is an essentially religious institution according to their own beliefs.  This was possible in another era when our society was more or less Protestant Christian and had no compunction about requiring religious minorities to conform to its moral standards imposed by law.  That approach is no longer possible and it is time to restore to the churches that which is rightly theirs.

November 26, 1:59 pm | [comment link]
6. Marty the Baptist wrote:

Ad O: I think a sensible approach ...

It’s been 18 years now, but isn’t that exactly how it happened?  My fiancee and I appeared before the court clerk, received our marriage license, then had a ceremony in the church where the minister completed the document which was then returned to the clerk and recorded as a valid union.

November 26, 2:16 pm | [comment link]
7. Ad Orientem wrote:

Re: 6
Marty,
I am proposing the complete removal of marriage from the state’s control.  The way it should have happened is that you went to the town clerk, and filed paperwork to have your civil union recognized by the state for benefits etc.  And then you went to your pastor and got “married” with the only paperwork being recorded at the church ceremony being that required by your church.

November 26, 2:31 pm | [comment link]
8. justinmartyr wrote:

Wrong James G, marriage is about whatever the government defines it to be. It used to be about keeping blacks from marrying precious little white kids. Now it is about “saving the heterosexual family” by electing me to office. As an earlier commenter so stupidly put it: let the voters decide. Who are the voters? You? Me? The non-christian columnist who raised a valid point? I guess our commenter wants instead a tyranny by majority.

No, until we remove Caesar from the Holy of Holies, we blaspheme the sacrament of Holy Matrimony. No spiritual health comes from using the gun of state to force our will on them sinners out there.

November 26, 2:52 pm | [comment link]
9. justinmartyr wrote:

Amen, Ad Orientem.

November 26, 2:56 pm | [comment link]
10. Jeremy Bonner wrote:

One might add that separating the civil and sacramental aspects of marriage should weaken the inclination of political authorities to tell religious bodies how they should define marriage.

November 26, 3:40 pm | [comment link]
11. Marty the Baptist wrote:

Ad O, sounds like a change in name only.

Justin: Who are the voters? You? Me? The non-christian columnist who raised a valid point?

Yep.  All of us who vote.  We The People.

I guess our commenter wants instead a tyranny by majority.

So what part of “of the people, by the people, for the people” do you object to, exactly?

November 26, 4:29 pm | [comment link]
12. Marty the Baptist wrote:

Jeremy: ...the inclination of political authorities to tell religious bodies how they should define marriage

What examples can you cite?  The Episcopal church routinely “marries” same-sex couples with zero political interference.

November 26, 4:34 pm | [comment link]
13. Jeremy Bonner wrote:

Marty,

I was actually thinking – with my Church of England upbringing – of the recent furor over the Civil Partnerships Act and the very strange pronouncements of certain bishops on the subject.

Would Ad Orientem’s proposal stop liberal denominations from redefining marriage as they saw fit? Of course not!

In the present climate, however, and in the absence of some sweeping and nationwide shift in public opinion, it would seem to me better to take the secular benefits or marriage out of the equation. It doesn’t mean that those of a secular liberal mindset would cease attacking a purely sacramental focus for its ‘intolerance,’ but it would remove from their arsenal one of the more potent weapons available to them in the court of public opinion.

After all, the principal witness that we can offer to the outside world is of Christian marriage lived as it was intended to be lived, faithfully, sacrificially and always in the knowledge that repentance and forgiveness will be needed on a frequent basis.    Perhaps it’s defeatist to concede the point, but there are too many nominal marriages – that would still be considered valid – being lived in the public eye as it is.

November 26, 5:01 pm | [comment link]
14. James G wrote:

Justinmartyr and Ad Orientem:  I hate to disagree with you on this (and I really mean that) but I must.  For a long time I too argued for the total separation of the state and marriage.  I said, “Let the state grant civil unions and keep marriage for the churches.”  I argued how in essence what we call marriage in America is actually civil unions so we should just call a spade a spade.  I wanted to shut the door between the world and the Church; to let the government do what it would and grant what it wished to whom it wished as long as it left the Church free to define and practice as She always had.  There are a lot of good reasons to follow that path and I am still strongly drawn to it.  There is, however, one very good reason not to.

We are called to be a light unto the world.  We are not to shut ourselves off to prevent the world from corrupting us, we are to go out and reform the world, to leaven it.  If we do not bear witness to the truth then we are not fulfilling our vocation as Christians.  To allow a corrupt society or government to define what is and is not an acceptable relation between humans is to cede to that corrupt entity the power to define and enforce its own corrupt morality.

I agree with Ad Orientem that marriage does not belong to the state.  The state has no power to define marriage; marriage is something that is defined by its own nature and independent of any governmental definition.  The state did not create marriage; but it does have a concern in them.  Marriage creates the family and despite all the secularists’ cries to the contrary, the family is the fundamental unit of society.  The state has an interest in society; society is the reason that governments exist.  Government is the construct of society, used to regulate that society; the people birth the state but the state orders the people.  As the legitimate regulator of society the state has an interest in the family and thus in marriage.  What the state cannot do is attempt to destroy the family and marriage; it cannot forbid them or define them as something contrary to their nature.  Such an action is an abuse and negates the legitimacy of the state and any government that attempts to corrupt marriage and the family should either be corrected or abolished.

Justinmartyr wants to “remove Caesar from the Holy of Holies,” by divorcing the state from marriage.  Marriage in America truly has been corrupted by the influence of the state.  Such abominations as “no-fault” divorce (and divorce in general), “serial monogamy,” and even the recent cries for “same-sex marriage” are a product of that poisonous influence.  That should be a call to us to correct the abuse and to correct the society that allows such a corrupting government to exist.  The corruption of marriage by the state is a symptom of the deep rot that has set into this society.  We must excise the cancer that exists in this society if we want the society to continue to exist.  Now maybe some people want this corrupt society to crumble so long as their pure community endures.  I am not so blind or jingoistic to think that the destruction of America would mean the destruction of all that is good in this world; but I do know that when society crumbles and anarchy reins then injustice prevails, even over the “pure” communities.

November 26, 5:46 pm | [comment link]
15. James G wrote:

We should also not be so naive as to think that the state or this corrupt society will permit the Church to continue to define marriage as She always has.  If the state’s “civil unions” allow all manner of things that are not marriage to be held as equal with marriage then it won’t be long before the state attempts to force the Church to accept them as well.  In my younger days I wanted to define civil unions without any regard to sexual activity; define it as a set of benefits granted to a pair of individuals.  This would allow old spinsters who shared a house, an adult child and parent, homosexuals and any other grouping of two individuals to freely enter into it in order to gain said benefits.  I thought it would be a compromise that all could live with.  There would be legal “equality” while at the same time preserving to marriage its “religious” definition.  It seemed fair to me; it seemed like justice.

A strange thing happened though.  None of my homosexual friends agreed with my idea, and for a simple reason.  To them it was not equality, it was not justice.  To accept what was to them “separate but equal” was to compromise what they could not compromise.  Having one word to be used by heterosexuals and another to be used by homosexuals for what, to them, was essentially the same thing was to say that what they had was somehow less than what others had.  My homosexual friends were not looking for toleration, they were looking for acceptance and anything less was unacceptable.  That I could “get married” and they couldn’t was an injustice to them.  That is exactly how the secular world will see it as well.  If we separate marriage completely from the government and institute instead “civil unions” that are to the government and secular society the same thing; then eventually the government will mandate to the churches who can and cannot get married as well.  After all, the government regulates civil unions; “marriages” and “civil unions” are the same thing; so the government should regulate marriages as well.  There can be no “ours” and “theirs,” there will only be “theirs” unless we firmly establish the truth.

Our Lord said, “But from the beginning of the creation, God made them male and female.  For this cause, a man shall leave his father and mother and shall cleave to his wife.  And the two shall be one flesh.”  From this it is clear how God ordered marriage.  To allow any other definition is to say that we do not know how God ordered marriage, but we do because it has been revealed to us.  Either Jesus is Christ, the Son of the living God or He is not.  Because He is we are confident in knowing what God intended marriage to be and are right to insist that society conform to that truth.  Some consider that to be “using the gun of state to force our will on them sinners out there.”  Now maybe it is but to allow any other definition is to betray our witness to the Truth.  Sinners cannot be forced to reform by force, only conversion of heart will accomplish that.  However, we do not have to say that sin is not sin and whatever people do is just fine in order to avoid offending them.  There is no justice in allowing sin to endure and no compromise can be made with sin.  Only by accepting the truth about marriage and enlightening society of that truth will we be able to preserve marriage.  As much as I would like to separate marriage from the state to do so would only hasten the destruction of both.

James G

November 26, 5:47 pm | [comment link]
16. Tom Roberts wrote:

15 James, agree with your logic, but it does not prove that the status quo tie between civil and church marriage will not end up destroying both civil and church marriage anyway. I’d prefer to try the separation, knowing full well that your conclusion may well be what happens in the end.

At the very least, separating the two will have drawn a line saying that the two are not equivalent. The church’s ability to discriminate which you foretell as being limited, eventually might be lost, but not in the first case. But at least the perennial dishonesty that pervades civil divorce proceedings and tax law will not be implicitly blessed by the church.

November 26, 9:15 pm | [comment link]
17. Larry Morse wrote:

apologize for saying t his again, but…. The First Amendment makes it clear that the state can have nothing to do with marriage, because marriage is a spiritual affair, not a civil affair. This is obvious, isn’t it?
The state can rule on civil unions precisely because they are civil; they are a form of legal partnership in which the state has a legitimate interest.

    Accordingly a church may marry whom it wishes and only the culture and the congregation can say it nay. But they MAY say No, in fact. Presently, it DOES say No.

  The solution is for churches, individually or as a denomination to make a ruling about who may be married and who not. It TE C wants to marry for or five lesbians at once, it may certainly do so. (And we wouldn’t be surprised, would we?) But it is essential that the state set as law that a civil union can consist of only one man and one woman. This separates church and state properly and limits all the legal benefits of marriage (its civil elements) to a man and a woman.

  Homosexuals cannot complain that the refusal of a church to marry homosexuals in unjust or a violation of the civil rights. These issues do not touch the church since they are civil matters. They may argue that the limitation of civil unions to a man and woman is a violation of their civil rights, and this will have to be argued by the Supreme Court. But since a civil union is not mandatory for marriage or vice a versa, and if it is marriage that homosexuals truly want, their argument will be moot.  What homosexuals REALLY want is to be accepted as normal in every respect, they want it all, and this cannot happen by any rational standard since, like the blind or the autistic, they are NOT normal - provided that the word normal means what it presently means. And this is precisely the point that needs to be made clearly,  that homosexuality is like autism: It is not normal. This is not the same thing as saying homosexuals are not protected from criminal attacks - we must protect out handicapped - but like all other handicaps, their freedoms must be restricted as are the freedoms of all others carrying serious handicaps.  LM

November 26, 9:22 pm | [comment link]
18. Ad Orientem wrote:

James G,
In response to your rather long posts I will make a few brief points.  First, when you speak of cutting out cancer and other interesting expressions for regulation of marriage and also of bearing witness through state regulation of marriage let us be clear what you are calling for.  You are proposing the imposition of your religious beliefs on the general population by use of legislation.  That is something which I can not agree with.  And as I noted already, in the present day and age it is from a practical point of view increasingly impossible given the dramatic shift in the population demographics of the United States.  We are no longer a White Anglo Saxon Protestant country.

I also think you are confusing your homosexual friends demands for equality.  Most desire only equaliuty before the law.  And that would be accomplished by limiting the state to civil unions which would have full authority to impose reasonable regulations as I noted in my first post above.  Those gays wishing to be “married” could do so provided their church is willing to do that.  If their church is not then logically they would have two choices.  Live with the ruling or join another church more to their liking. 

As for coercion on the part of the state against churches that refuse to “marry” homosexuals I think you are being a bit paranoid.  That would require nationalizing all of the churches.  That is just not going to happen.  But on the off chance it did we would have a lot more to worry about than marriage laws.  I can not speak for the various Protestant sects but I feel comfortable in saying that both the Orthodox and the Roman Catholic churches would simply go under ground in such a situation.

November 27, 12:35 am | [comment link]
19. Larry Morse wrote:

18. I can only say that such evidence as i have - limited indeed - is that what homosexuals want is not simply equality before the law, but equality - read, total acceptance - in all matters, legal and spiritual.
This is precisely what they must not be given by law, for it is an undefensible position. That won’t stop the liberal lawmakers from granting it to the degree that law can, but society needs to refuse to accept such a posture.  LM

November 27, 8:32 am | [comment link]
20. James G wrote:

Ad Orientem: Thank you for responding to my posts.  I agree that this is no longer a WASP country (and praise be to God for that; we have much better music and food now that all of us ethnics are here).  I also agree that if the state ever tried to nationalize all churches that the Orthodox and Catholics would indeed go underground (at least the faithful members).

I acknowledge that I used fiery and expressive language in my posts; this is a subject I feel passionately about.  I must heartily disagree, however, that what I am proposing is the “imposition of [my] religious beliefs on the general population by use of legislation.”  The various state governments already have legislation in place that concern “marriage” and impose some sort of limitations/definitions on it (age, sex, no polygamy).  I want us Christians to be vocal over the truth of marriage and in keeping the state beholden to that truth.  I used arguments from Biblical revelation to show what the truth of marriage is because T19 is a Protestant blog.  I could have used arguments from Tradition which would hold as much weight for Orthodox like you and Catholics like me.

Even more I could have pointed to how no civilization in history has ever defined marriage as other than between a man and a woman (even the ancient Greeks acknowledged that marriage was between a man and a woman and we know how “varied” their bedroom activities could be).  That is because of the fundamental nature of what marriage is (best highlighted by one of the ends of marriage, procreation).  To require the state to acknowledge what marriage is by its very nature is not the imposition of a religious belief; it is requiring the state to hold to the truth.

I hope I am being paranoid about the potential for our state to coerce churches.  I agree that we would probably have a lot more to worry about then just marriage laws (they’d probably start by imposing “women’s ordination” on us Catholics and you Orthodox since that seems to be the modus operandi).  However, I already see the beginnings of a move to impose “equality” on religious organizations by various Western governments.  All that is required is for enough people to be blind or just indifferent to the truth at it will be here as well.  History is full of attempts by the state to nationalize, control, or outright ban religion and it’s amazing how quickly and easily it happens even in countries where the majority of the population are faithful believers.  I don’t want to be a “Chicken Little” but I would rather be paranoid than stand by and do nothing.

One final point regarding homosexuals:  While my friends would never try to impose acceptance of their lifestyle on any religious body (if they were that militant they wouldn’t be my friends); they are adamant that what they want from the government is “marriage.”  “Civil unions” are unacceptable to them even if that’s the term the government uses for both heterosexuals and homosexuals.  They want their partnerships to be called “marriage” because anything less is not “equality” in their eyes.  Now maybe you know homosexuals who will settle for “civil unions” but my friends are the least vocal, flamboyant, and militant homosexuals I have ever met and they are very honest that “civil unions” is not enough for them.

James G

November 27, 12:17 pm | [comment link]
21. James G wrote:

#17 Larry Morse: Just wanted to make a quick comment on what you said.  Marriage is not defined by governments, churches, or any other organization.  Marriage has its definition from what it is fundamentally by its nature.  Marriage IS the union between one man and one woman so that the two become one flesh; ordered for mutual help, procreation, and the rearing of children.  That is what marriage is, anything different is NOT marriage.  If TEC decided tomorrow to try and marry a coven of lesbian witches it would not be able to.  There could be a ceremony; the exchange of vows; rings; whatever and the result would still not be a marriage.  Just as a cat is not a dog; a man is not a woman; anything other than a man and a woman is not a marriage.

James G

November 27, 12:31 pm | [comment link]
22. Ross wrote:

#20 James G says:

Even more I could have pointed to how no civilization in history has ever defined marriage as other than between a man and a woman

Assuming you really meant “a man and a woman,” then this is simply, and blatantly, false.  Polygamy—one husband, multiple wives—has historically been a quite common pattern of marriage in many cultures.  Polyandry—one wife, multiple husbands—has been rare but not entirely unknown.

You can of course argue what marriage should be defined as, and I’ll leave you to do that as you like; but you ought to at least acknowledge what marriage has been defined as in other cultures if you’re going to attest the witness of every civilization in history.

November 27, 12:42 pm | [comment link]
23. James G wrote:

#22 Ross: you bring up a good point that needs to be addressed.  Polygamy, and polyandry to a lesser extent, is indeed a practice that has existed (and still does) in many cultures.  I do not deny this.  However, polygamy is NOT a union between ONE man and MANY women; it is a SERIES of unions between the same man and a series of different women.  That is, polygamy is a series of individual marriages.

I tried to confine my argument about what marriage is to one concerning the sexes involved.  That marriage is between a man and a woman is indisputable.  I also believe that as God wills it a person is to only have one marriage during the life of a spouse; however that is a much harder point to show outside of revelation.  I’m sorry if my argument was unclear but my point was that marriage is between a man and a woman and NOT a woman and a woman or a man and a man.  Thank you for pointing out where I needed to clarify my argument.

James G

November 27, 1:16 pm | [comment link]
24. Larry Morse wrote:

#21. Marriage, however, can be defined by the institutions cited because the law requires definitions for it to function. So TEC can define marriage as it choses. You may disagree, but my point was that the state cannot intervene because of the first amendment. Nor can anyone else, for that matter, but for practical reasons.
  The existence of polygamy doesn’t falsify the definition of marriage as between a man and a woman. That is, the two sexes are essential for marriage to take place because of childbearing. At its heart, marriage is an affirmation of fertility, a fact and a concept that undergirds all life. Homosexuality violates that principle; sodomy   is the perfect demonstration of sterility. What more perfect symbol of anti-life?

  Somenow, this ought to be obvious and there should be no need to carry on this incredible warfare over the obvious and irrefutable. And yet, here we are. This reminds me of the femininist arguments of 40 years ago, that men and women are essentially the same and should be treated the same for that reason. I can;‘t remember when experts began to point out that men and women are fundamentally different, but the news came as an epiphany.  LM

November 28, 1:45 am | [comment link]
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