THE GREAT DIVORCE (WITH APOLOGIES TO C.S. LEWIS)

Many serious people have been amazed by the rapid disintegration of the legal foundation for the institution of marriage with the recent furor over homosexual unions and the coming one over polygamous unions.  They shouldn't be.

[Note that I don't qualify the word "marriage" as "traditional" or in some other manner to define it only as a union between a man and a woman for the simple reason that doing so is redundant.  Whatever the merits of passing statutes that allow any group of individuals to establish a household, nothing but the monogamous bond of a man and a woman is a marriage.  Calling lead gold doesn't make it so, however much we may wish it.  So I won't dignify the abuse of the word marriage by hemming it in with qualifiers.]

However, that legal foundation was cracked four decades ago with the advent of no-fault divorce.  But why should any change in the law have altered, for example, a Catholic's concept of and commitment to the sacrament of marriage?  Government statutes have no bearing upon what a Catholic knows to be marriage.  But plainly it has for many Catholics and even more so for others.  This unfortunate dimunition of marriage, even by those who should know better, is product of trusting the government to protect the institution.

By letting the government be the primary guarantor of the sanctity of marriage, we let it become the definer of marriage.  Thus, we surrendered marriage to the tender mercies of the state and blinded ourselves to the plain fact that we are still free to commit ourselves to true marriage, that unbreakable vessel of eros which no mere statute can affect.  We don't need and have never needed the government to protect marriage, if we can muster the integrity to honor marriage without the compulsion of the law.  Yet, we have increasingly relied upon the crutch of government to give heft to marriage, and by doing so, we are now baffled as to how to retain the sanctity of marriage as government renders it meaningless.

Therefore, maybe it's time we consider divorcing marriage from the government.  After all, from a Catholic perspective, the laws in the U.S. never embraced the Catholic concept of marriage.  They were always somewhat minimalist in that regard, and I doubt that many Catholics would want the government to ban divorce and birth control to conform to Catholic teaching on the matter.  I certainly have no desire to impose with the force of law my beliefs about the commitments that marriage entails upon others.   So why should it matter to any Catholic, or any person who embraces marriage as a fundamental institution of society, what the government calls marriage?

The fact is, the government's involvement in marriage is a modern phenomenon.  Before the Protestant Reformation, the Church determined what constituted a marriage.  In the seventeenth century Protestant states began registering and then licensing marriages in lieu of the Church.  Then the laws multiplied from there until the government alone could dictate -- legally -- what constituted a marriage.  Now, over the past half century, the government has retreated from its protection of marriage while retaining its power to dictate what it is.

Well, so what?  None of that stops any of us from entering into the sacrament of lifelong marriage (through the Church or otherwise).  Indeed, by doing so we liberate marriage from the government by making our autonomous moral commitment to it.  Short of tyranny, the government is powerless to prevent this liberation of the institution from its destructive grip.  It can define marriage into meaningless, yet each and every one of us remains free to vest marriage with all the meaning our hearts and minds can and should put into it.

Now think about that.  Socially the sanctity of marriage would be resurgent.  True marriage protected only by our private commitments to it and the judgment of our peers would be far stronger than any backbone the law could give to it.  The debased forms of it sanctioned by the government would whither away in the demand for the real thing.  And the good news is that each of us can have that real thing right now if we want it.  We just have to stop caring about what the government says marriage is and start caring about what we know it is.

[Note:  Thanks to Eve Tushnet of EveTushnet.com and David Delaney of Cosmos-Liturgy-Sex whose recent writings on sex, marriage, and Karol Wojtyla's "Theology of the Body" provoked my thoughts on the unalterable ontology of marriage and how the state can never destroy true marriage.]

Comments

[Francisco Rodriguez]

Good food for thought.
Curiously, this is somewhat related to an essay about privatizing marriage that I'm writing.

If I understand correctly you advocate making marriage a private commitment. Would you agree then a good alternative is to allow companies to enact marriage licenses instead of the government?

Now, some points where we divert:

First, research has found children raised by gays or lesbians turn out just fine. I was against same-sex marriage too, but I'm not so sure anymore.

Secondly, even if it can be shown from a completely secular reasoning homosexuality is wrong - and thus far it hasn't - that doesn't mean people can be deprived of their freedom. I understand this is a serious issue, but if conservatives want to make a point they should leave religion out of this.
Besides, definitions change all the time. What's so special about marriage?

[Bill]

Hi, Francisco.

>>If I understand correctly you advocate making marriage a private commitment. Would you agree then a good alternative is to allow companies to enact marriage licenses instead of the government?<<

I would put it this way. Marriage is a personal relationship to which a couple publicly themselves to. The basis upon which they establish that relationship is private, and the government should not have any role in that -- not even licensing. A marriage is a fact that exists prior to the law and government.

However, that fact is a public fact. A marriage is public announcement of a couple's exclusive commitment to each other. Therefore, the government may recognize that fact in the law to regularize the quasi-contractual nature of marriage should a couple have no other agreement in place.

This recognition would be similar in concept to the statutory distribution of an estate in the absence of a will or a trust. Neither the law nor the government had any role in the fact that the estate exists, but when the government must deal with that fact (i.e., the estate's owner died without a will), it has a set of rules for doing so.

With this in mind, the government may get into the business of civil unions, which would allow any group of persons who so wish to join themselves together to have same benefits as the government confers upon married couples. Whether that's wise public policy or not, it would not be much different in concept in the way the government applies the same tax policies to different business structures such as partnerships, LLC's, and S-Corps.

Each of those structures is distinct from the others, and it is up to businessmen to decide which is best suited to their purposes. Yet, as for as taxes goes, the government treats them the same. By doing so, the government doesn't make a partnership and a LLC the same. They remain different. Likewise with a marriage and a civil union. It is the participants who determine the form and substance of the relationship, without regard to the government's similar treatment of both.

I hope that clarifies rather than obscures, Francisco.

Regards, Bill

P.S. I'll address the issue of homosexuality and marriage separately.

[Bill]

Hi again, Francisco.

>>Besides, definitions change all the time. What's so special about marriage?<<

If you think about, you answered your own question. The definition of marriage is one thing that hasn't changed over space and time. That's one indication of why it's special.

Now if the government wants to dictate, in a fit of positivism, that two men can label themselves married, it has the might to do so. It's the same power it has to declare that the sky is green and not blue. And governments abuse their power to engage in such wishful thinking all the time. Nevertheless, government remains as powerless to alter the ontology of marriage as it does to change the color of the sky.

So marriage will remain marriage despite anything the government does -- short of tyranny.

Now there's a different issue as to whether or not the government should pass "civil union" statutes that allow any group of persons to form a household similar to that a marriage couple.

I see no reason why not, at lease in general principle. After all, much of what civil unions would accomplish is already possible through private contracts. Even as a libertarian, I see no problem in the government regularizing the terms of what can be privately contracted into a statutory relationship that permits ready public recognition of an otherwise unconventional household. (Forcing private parties to beneficially recognize a civil union would be contrary to liberty, however.)

If homosexuals want to avail themselves of a civil union, sobeit. None of my business. Indeed, nothing about a civil union would allow me to draw any conclusions about the sexuality of its members. Maybe the members of a civil union are a grandmother and her granddaughter who want to jointly share property as married couples do to facilitate care and estate planning.

My point is that sexuality should be irrelevant regarding civil unions. One would think that people would appreciate this respect for privacy. Therefore, those committed to a gay identity and demand otherwise -- e.g., gay marriage instead of civil unions -- are not really demanding tolerance; they are demanding approval.

That is where my beef lies with those rabble-rousing for gay marriage. I'm not interested in the private choices people make for their lives. I will disagree with many of those choices, often vociferously, but it's not my business. That's tolerance. However, my approval is mine to give and mine alone. No one has a right to that, but that is exactly what the advocates of gay marriage want.

Regards, Bill