Can “privatized” marriage work?

Years ago, I advocated that the best way to protect the traditional definition of marriage was to get government out of the business of it. Many traditionalists objected to it, and there are good arguments for conserving the tradition in law as the basis to keep families and children prioritized over the desires of adults seeking government recognition for their own non-traditional relationships. That argument relies on the moral force of law in the culture, but the momentum of the culture clearly has accelerated in the opposite direction, and moral force in the definition of marriage with it.

The greater issue for traditionalists, and the bigger risk, will be that religious institutions will find themselves trapped by the changing definitions. We’ve already seen evidence that participants in the wedding industry will find themselves under fire for sticking with their own values in choosing when and how to participate in the market. Ministers occupy a rather unique position in the confluence of state and church, operating in an official capacity as an agent of the state to certify marriages. Even though advocates of same-sex marriage insist that they don’t want to force churches into performing these ceremonies, it’s not going to be long before such challenges arise, and will push churches out of the marriage business instead of government — which is a big reason for getting government out first. And if you doubt that this will become an issue, just look at the HHS contraception mandate and their treatment of religious organizations.

Francis Beckwith disagrees, calling such an arrangement unworkable, and insists that traditionalists need to keep fighting to retain the historical definition of marriage instead:

Imagine, for example, as one of my former doctoral students once suggested in a dissertation that defended this idea of privatization, that marriage becomes exclusively the domain of “the church.” Suppose Bob and Mary, both devout Catholics, marry in the Church under the authority of canon law.  Over the next decade, they have three children. Mary decides to leave the Church, however, to become a Unitarian and seeks to dissolve the marriage. Because the Church maintains that marriage is indissoluble, and Mary has no grounds for an annulment, the Church refuses her request.

Mary then seeks the counsel of her pastor at the Unitarian Church. She tells Mary that the Unitarian Church recognizes her marriage with Bob, but maintains that divorcing him is perfectly justified, since the Unitarian Church holds that incompatibility is a legitimate ground for divorce.  So, Mary now requests a divorce from the Unitarian Church, and it is granted. The Church also grants her full custody of her children, since, according to Unitarian moral theology, what Bob teaches their children about contraception, abortion, and same-sex relations are “hate sins,” and thus is a form of child abuse.

So, who wins in this case? Suppose you say that because it was originally a Catholic marriage, it should remain so, even if Mary changes her religion. But who has the authority to enforce such a rule? The Catholic Church? The Unitarians? What if the Catholic Church agrees to it, but not the Unitarians?

Suppose Mary, on the authority of the Unitarian ruling, simply takes the children and moves out of state. Is that kidnapping? Can a Catholic ecclesial court issue an order to a local Knights of Columbus office to return Mary and her children to their original domicile so that she can be tried in an ecclesial court for violations of canon law? And if she is convicted, can the Church put her in an ecclesial prison or fine her?

Suppose that Mary not only leaves with all the children, but also empties the couple’s bank accounts and donates their contents to the Unitarian Church? Is it a crime? Who decides? Imagine that all these issues were addressed in private contracts that Bob and Mary drew up and signed upon the commencement of their marriage in the Catholic Church. Who has the power to make sure these breaches are remedied and compensation given to the wronged parties?

The problem with all of these scenarios is that they are based on a fundamental misunderstanding of what privatization means in this context. The issue is not who gets jurisdiction over the secular consequences of relationships, but the definition and recognition of what a marriage actually is. Disconnecting the government from the authority to define and certify “marriage” does not involve moving all of the jurisdictions for the consequences of marriage to the church, synagogue, or temple. Privatization basically says that the government has no role in “certifying” or promoting relationships between consenting adults, but rather is limited to the enforcement of contract law in disputes between them. The status of “marriage” then becomes a strictly voluntary matter of recognition by one’s faith community, based on the tenets of the faith.

The legal and property issues of cohabitation in any form would still lie with the state. Government still has the jurisdiction and the competence for enforcement of contracts, both explicit and implicit. Cohabiting couples who never marry at all would have to resolve their property and custodial arrangements if and when they part ways, assuming they have children at all. If they can’t resolve those interests amicably, they go to court regardless of their marital status.

This would be no different if recognition of marriage were left to the churches. The state would still settle the contract issues in a dissolution of the partnership; the only issues left to the churches would be the religious implications of the end of the marriage, and that would be on a purely voluntary basis, as is faith now. To use Beckwith’s example, a Catholic who got married in the church but later ended the relationship and started another would have to deal with the Catholic Church on his/her eligibility to remain in communion, not on custody of children or property. If the Catholic became a Unitarian, it’s no longer the Catholic Church’s issue. (That happens already, by the way.)

This is all academic, because few in this debate want to give up state control of marriage, although a few lawmakers in Oklahoma are considering it. There are good reasons for traditionalists to stay engaged (if you’ll pardon the pun), but this argument isn’t one of them.

Update: This, however, by Jennifer Morse, is a much better argument:

In other words I asked, “Do the needs of society place constraints on how we treat children?” But even this analysis still views the child from society’s perspective. It is about time we look at it from the child’s point of view, and ask a different kind of question. What is owed to the child?

Children are entitled to a relationship with both of their parents. They are entitled to know who they are and where they came from. Therefore children have a legitimate interest in the stability of their parents’ union, since that is ordinarily how kids have relationships with both parents. If Mom and Dad are quarreling, or if they live on opposite sides of the country, the child’s connection with one or both of them is seriously impaired.

But children cannot defend their rights themselves. Nor is it adequate to intervene after the fact, after harm already has been done. Children’s relational and identity rights must be protected proactively.

Marriage is society’s institutional structure for protecting these legitimate rights and interests of children.

This is not only a humane answer, it is also the proper libertarian answer, indeed the only possible truly libertarian answer. For only this answer allows the possibility of a society in which every individual person is recognized as valuable, as bearing intrinsic human dignity, of holding rights against other people and against the state.

I agree — and that’s why when it came to choosing a definition of marriage in Minnesota, I chose the traditional, procreative model. Other than what Morse identifies, the state has no business in relations between two consenting and non-consanguinous adults. If the state refuses to recognize that limited interest, though, then it shouldn’t be in the marriage business at all. (Thanks to INC in the comments for highlighting this.)