Should the Government Get Out of the Marriage Business?

A February 12, 2010, article in The Salt Lake Tribune got me thinking about gay marriage and, indeed, marriage in general. The story is titled “Should government get out of the marriage business?” The title caught my attention because there has been discussion recently in Episcopal Church circles about whether the church should get out of the marriage business. Episcopal priest Mark Harris, for example, explained in a blog post last year that he objects to acting as an agent of the state in the conventional wedding ceremony. But he has also eschewed officiating at weddings in protest of his church’s failing to provide liturgical materials and support for the blessing of same-sex unions.

Anyway, I thought, somebody needs to be in the marriage business, whatever that business is, exactly.

The Tribune article begins by pointing out the anomalous character of “marriage”:

When a bride and groom exchange vows in a cathedral, chapel or temple, they receive a marriage license, blessed simultaneously by their clergy and their state.

But why? Other religious ceremonies aren’t wedded to civil ones. The county clerk doesn’t issue a baptism license. A priest doesn’t deliver a funeral eulogy and then sign the death certificate.

Reporter Rosemary Winters goes on to describe a resolution to the gay-marriage public policy standoff proposed by Pepperdine University law professors Douglas W. Kmiec and Shelley Ross. Kmiec and Ross suggest that California law remove all references to “marriage” and define only civil unions, a status open to all, regardless of sex. “Marriage” would then become the exclusive domain of religious institutions, in which the state had no interest or say. The proposal is especially attractive in the California context—Pepperdine in in Malibu, California—given that state’s recent, confused experience with gay marriage. Alas, Winters finds that advocates on both side of the public debate over gay marriage have objections to the Kmiec/Ross suggestion.

One seemingly trivial objection to a de-marriagification of state law, but one not easily dismissed, is that it would change the name of the status of currenly married couples. Is a couple joined by a justice of the peace “unioned,” whereas a couple wedded in a church is both “unioned” and “married”? In such cases, language, ideally, should reflect differences that matter. Most people do not now make distinctions dependent on how two became one, and I suspect that, whatever term the law uses, ordinary folk will continue to use “marriage” and “married” indiscriminately. There are, however, social reasons (other than indulging one’s prejudices) to distinguish heterosexual marriages from homosexual ones. When Chris and Leslie (or Chris and Sarah) are described as “married,” one might want to know more to avoid socially awkward situations. The existence of gay unions exposes other linguistic problems: “spouse” becomes only so helpful, and what about “husband“ and “wife”? It is tempting to propose a set of solutions to the linguistic challenges of gay unions, but people seldom adopt terms merely because some pundit has advocated doing so. (Words like “Ms. offer hope, however.)

Of course, Winters had no trouble finding an evangelical Christian willing to be quoted as saying that the Kmiec/Ross solution would “weaken the institution of marriage.” My standard reply to such an assertion is, “How?” The line did get me thinking about the dual civil/religious nature of marriage and the benefits conferred thereby. This is an interesting line of inquiry, to which I now turn.

Heterosexual marriage confers many civil benefits, and obtaining these benefits for homosexual couples is probably the major motivation for advocacy of marriage equality. Married couples receive tax and inheritance benefits, can make medical decisions for one another, enjoy privileged communication, and get to make final arrangements for their spouses. (This list is not meant to be exhaustive.) Other benefits (e.g., various fringe benefits) may accrue from non-governmental actors. Since the government is largely out of the sex police business—concerns with prostitution and abortion are notable exceptions here—marriage is no longer necessary to sanction intercourse, but, in this and other areas, there are significant social benefits conferred by marriage.

What are the religious benefits of marriage or the blessing of marriage by a church? Surprisingly few. (I write from the perspective of an Episcopalian here, and, although my comments are not intended to refer only to The Episcopal Church, there may be exceptions of which I am unaware. See also below.) Churches generally do not discriminate between couples wedded in a civil ceremony and those wedded in a church. Most church activities are indifferent as to whether participants are married or not, though some non-liturgical, non-sacramental events targeted to couples qua couples surely exist. Speaking for my own church, there are two benefits of a church wedding: (1) the intangible spiritual blessing conferred thereby and (2) the commitment of the congregation to support the couple getting married. I know of no way to measure the former, and churches I have encountered neither encourage couples specifically because they were wedded in a church nor fail to do so because they were not. There are, I suppose, churches that consider a wedding as granting a license to engage in sex, and those churches may ostracize or otherwise discriminate against sexually active singles. A civil wedding, however, is seen as conferring the same license. Like the civil authorities, my own church has largely discarded its sex police function, in practice, if not in theory.

An exception to much of what I have said above may have to be made for The Church of Jesus Christ of Latter-day Saints. As I understand it, Mormons have a more complex theology of marriage, a state that extends into the afterlife. Winters indicated that the Mormon church “does not endorse the civil-unions-for-everyone concept.”

As should be apparent from the above discussion, it is difficult to identify any obvious loss to heterosexuals, either on the civil or religious side, that would result from the regularization of gay marriage. There is, of course, some degree of one-upmanship in being able to deny to others a right accorded oneself, although I would argue that indulging this ugly emotion is not the American way. Additionally, some, though not all, civil advantages that accrue to heterosexual couples have a social cost. Extending such a benefit to homosexual couples would impose that cost on everyone else, including on heterosexual couples. Of course, one might ask why everyone is being asked to bear those costs for the benefit of heterosexual couples to begin with. Although we often do it in practice, Americans do not like the thought of putting a price on justice.