Posted 18 May 2004 - 09:23 PM
Married to the State
by Ryan McMaken
Following Canadian court decisions opening up State-sponsored marriage to same-sex couples, the American media, predictably, is all atwitter over whether or not the United States Supreme Court will be soon to follow suit. Yet, even before the court decision was handed down by an Ontario court, the Canadian federal government in July of 2002 was already discussing the possibility of "withdrawing from the marriage business and leaving it to the Church." Debate in the United States over this matter has grown in recent years as well, while in addition to the Canadian court decisions, American legislatures and Congress have been increasingly debating amendments and statutes like Massachusetts’ "Protection of Marriage Amendment" which defines marriage specifically as a heterosexual union.
The matter of withdrawing governments from the "marriage business" is indeed an intriguing matter given all the strings that have been attached to marriage by the modern State in recent centuries, and it is important to be keep in mind that the "State" as an organization that regulates institutions like marriage and has de facto final jurisdiction over all religious and secular matters within its territory is a phenomenon that is no older than the 17th century. In the ancient and medieval worlds, the kind of licensing and regulation (not to mention judicial activism) that accompanies marriage today would have been unthinkable, yet in the modern world as society has consistently given up autonomy to the State under the fantasy that "we are the government," marriage has become less and less a core institution of society and more a product of the power of government. And considering the stacks of statutes on family law that give power to government courts, government agencies, and unscrupulous litigators to destroy lives in the blink of an eye, this is no small change. Any status that the family once had as an untouchable institution was never due to anything the State could have done, yet the daily legal and rhetorical attacks upon the family and upon marriage are most certainly the product of a government foolishly entrusted with the job of protecting it.
Returning control of marriage to non-State actors like religious groups and private individuals is certainly not without precedent, and is anything but a radical solution. Marriage in ancient Roman societies was little more than a matter of mutual consent sans government license, and in the Middle Ages, marriage was regulated solely by the Church which lacked anything like the means of violent coercion possessed by civil governments. Dividing up property among quarrelling spouses at the whim of a government judge, or issuing draconian restraining orders from one’s own children under pain of fine and imprisonment is a State power unfathomable to even the most despotic bishop at the height of Church power. Nevertheless, some historians have attributed the rise of government involvement in marriage to the medieval Church. While the Church no doubt pressured government organizations to make laws that promoted the Church’s concept of marriage, the religious authorities remained independent of governments in determining what marriage would be and how it could be legitimately practiced. Anything that did not conform to these ideas was by definition something other than marriage. The State had virtually no say in whether marriages could be declared invalid or whether remarriage could be permitted. According to Church theology, marriage was a sacramental and religious affair with any accompanying civil contracts being dependant upon the validity of the religious rites. R.W. Southern’s work on the medieval Church documents the Church bureaucracy that grew up around the widespread need for the Church to act as arbitrator in a variety of disputes, many of them marriage disputes. All of this was taking place along side the civil authorities who retained power over criminal law, military defense, and – perhaps most importantly – taxes. Throughout medieval Christendom – with a few exceptions – marriage was no more within the jurisdiction of the secular governmental authorities than criminal law was within the jurisdiction of a Church hierarchy. Naturally, there were always efforts by both Church and government organizations to expand into the jurisdictions of the other – a constant tension that worked to the benefit of the general public – but it was not until the Reformation and the rise of the modern State that we find the first modern example of a civil government gaining primary control over the institution of marriage.
It is certainly no coincidence then that the English version of the Reformation was precipitated by a marriage dispute between Henry VIII and Church authorities. Since medieval conventions did not allow even a King to exercise jurisdiction over matrimonial matters (causing many a hissy-fit from the self-indulgent monarch), Henry declared himself to be head of the Church in England as well as the secular government, and setting himself up as "emperor," forged one of the first modern States in Western history. The same monopolization of religious and civil life under unified national governments continued throughout Europe in the sixteenth and seventeenth century and when the dust cleared, the State, claiming to be the only source of sovereignty within a given territory, would take for itself power over marriage, the family, and any other institution that might be deemed "too important," in the eyes of the State, to be left to a religion, or worse yet, to mere individuals.
By the 19th century, the State had become supreme in the regulation of marriage – even in Catholic countries – and State involvement was so intricately intertwined with marriage contracts that marriage scholar Brian Trainor has observed that, "In the 19th century the State was regarded as a kind of ‘third party’ to the marriage contract precisely because, as representatives of the public good, it was commonly believed to have a strong and perfectly proper interest therein." Centuries earlier, Catholic scholars would be contending that God was the "third party" in a marriage, and as a sacrament, marriage did not lend itself to having a government "third party" any more than would the sacraments of confirmation or baptism.
It was clear by the 19th century, however, that the State was reigning supreme on matters of marriage since, in typical State fashion, it arrogated to itself the role of being guardian and "representative of the public good," and as such must have the power to be final arbiter on marital matters and all the attendant powers that accompany such a mission. In fact, in his pre-communist days (i.e., before he decided that marriage was legalized prostitution), Karl Marx bemoaned the fact that many governments, clinging to an older religious tradition, still regarded marriage "not as a moral, but as a religious and church institution, hence the secular essence of marriage is ignored." Just as he would later call upon the State to abolish marriage, the younger Marx would set up the State as the only acceptable and moral authority over marriage, thus signaling the total reversal of the medieval assertion that marriage was to be kept out of the hands of States. By the time the power of the State was near its peak in the 19th century, ancient conventions of marriage still largely endured even without any presence of a powerful independent church within the State apparatus. As long as this persisted, marriage as an institution had retained much of its original sacramental or quasi-sacramental importance as something more than a merely secular matter.
State control of marriage is a double-edged sword, however, and as those who control States have become less and less convinced of the validity of the original Christian conceptions of marriage, the State has become more and more active in breaking down those original conceptions of marriage in favor of revolutionary forms. Modern church organizations, still functioning under the assumptions of earlier centuries that the State would use its power to protect the core attributes of marriage, still find themselves intricately connected to the State apparatus with government-issued marriage licenses being an intrinsic part of most religious marriage ceremonies. This assumption that the State protects marriage is a delusion, of course, and we find the State "protecting" marriage much in the same way it has "protected" public education. Like with public education which was originally set up to bolster American Protestant Christian values, those who thought they could use the State to protect their view of marriage now find themselves in the minority fighting a rear-guard battle against the complete government takeover of marriage itself, with the once venerable institution now subject to every trendy ideology taught in government universities and government agencies on any given day. Many have recognized the failure of government in education, and have withdrawn to private home-schooling as a way out. Why not admit the State’s failure in marriage as well?
The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State. Such a move, of course, would bring with it new assumptions about the role of the State in divorce, children, and a variety of other aspects of family life. The State will not give up control over these things easily, for the assertion that the importance of marriage makes it a legitimate interest of the State is only true from the point of view of the State itself, for as the foundation of society, marriage and family cannot be entrusted to governments just to be blown about by the winds of democratic opinion, for the same government that has the power to protect can just as easily destroy.
