Though I am proposing a shift away from marriage as a civil right (and
its replacement with something else), I am not proposing a shift away
from marriage as a religious ceremony. To the contrary, to the extent
states get involved defining "marriage" it cheapens that sacrament as it
stands within churches. Let me explain why.
Once upon a time in England (from which our traditions in this respect
originate) the only officiating with respect to birth was parish
registration (and that was not widespread before the 15th century). It
was a recording of the date of the baptism and the names of one or both
of the parents. Later, the civil government instituted birth
registration (recording date of birth and the names of both parents).
Civil servants handled the civil registration, and curates and pastors
continued baptisms. They did not stand in as civil registrars.
The same pattern developed, though a bit differently in detail, with
deaths. (For example, parish registers recorded date of funeral and
burial, though some recorded date of death as well). If a church
supervised a burial, the information on the death could come from the
church, but it could also come from others.
Marriage was originally a church matter, a sacrament. Civil involvement
was limited to the approval of the crown with respect to certain
marriages (and way too much informal, technically illegal interference
and lobbying on the part of nobility and royalty with church officials,
culminating in the inevitable outcome of Henry VIII's problems). But
civil "approval" was more a matter of family blessing and was not
considered to create rights as between the two individuals before the
marriage ceremony itself. When the government of England chose to permit
marriage outside of churches, instead of moving the entire matter to the
civil side as it did with births and deaths, leaving the religious
sacraments of baptism and last rites to the church, it instead
piggy-backed itself on chuch marriages.
Would (should) that have been permitted had there been a FA equivalent
in England at the time? I don't see how. Compare, for example, the
current practice in France, an outcome of how the Revolution altered the
relationship between church and state in that country.
So the entangled mess, which came to this country with the English
emigrants, remains an entanglement. After all, though there was a
church-state dichotomy in the Massachusetts Bay Colony, for all intents
and purposes the Puritan ministers controlled marriage.
So how could the Framers, dedicated to FA principles, have tolerated
the entanglement that exists with respect to marriage? Tradition? No,
all sorts of practices that had traditionally been carried on were
jettisoned by the Framers.
Instead, I think that the answer is in one phrase: regulation of sexual
conduct. The civil government appears just as intent as are church
governments to regulate who can have legally condoned sex with another
person, and although the attempts of both civil and church governments
to restrict sexual behavior to marital partners (and to regulate it
therein) have for the most part failed, it is with respect to marriage
that the last battle over that issue is being fought.
Churches and their members are free to define their sacraments and to
attach to them whatever theological principles they determine are
appropriate. No state can tell a religion who can and cannot receive a
sacrament in that church. That's the "separate" part.
If a government chooses to define relationships between individuals, it
needs to do so without piggy-backing on churches and church definitions.
And the extent to which it is permitted to do so must rest on the extent
to which it can regulate sexual activity. Thus, a state can deny
marriage to an 11 year old, or to a person lacking mental capacity.
Beyond that, if two people wish to enter into legal arrangements with
respect to property, taxes, hospital visits, etc., the state can grant a
tag ("civil union"?) to those two individuals (be they man and woman,
two men, two women, a parent and child, two siblings, or any other pair
who wishes to created a contract, and hence the appeal of the term
"domestic partnership"). Whether two consenting adults choose to engage
in sexual activity, within or without the civil union or domestic
partnership, is not a matter of property, taxes, hospital visits, or
whatever, and the state must leave that be.
In other words, the state does not belong in the marriage business, the
baptism business, or the memorial service business. And along the same
lines, ministers/rabbis/etc should not have rights under civil law to
solemnize "marriages" for civil purposes merely by dint of their being
ministers/rabbis/etc. After all, having one's child baptized in a church
doesn't satisfy the requirement that the birth be recorded with the
state government. So the practice of states "adopting" the administering
of the church sacrament of marriage is another entanglement that needs
to be undone.
Jim Maule
>>> [EMAIL PROTECTED] 3/15/2005 1:31:00 PM >>>
On Mar 15, 2005, at 1:02 PM, James Maule wrote:
> Civil birth registration and baptisms/christenings are separate. So,
> too, are death registrations and funerals/memorial services. Why not
> separation of marriage and whatever one wants to call state
sanctioning
> of pairing?
>
> Jim Maule
Three words: "Separate but equal".
Marriage is both religious and civil. In contemporary usage, it
denotes those who have undergone either civil or religious ceremonies
to solemnize their relationship. What you are proposing is a shift away
from marriage as a civil right as well as a religious ceremony.
Of course, the current model is to my right; Vermont has "civil
unions" as well as marriage. While mixed-gender couples are allowed to
have civil unions, same-sex couples are not allowed to have marriages.
Further, I'm not sure federal government will recognize civil unions in
place of marriage. If they do, I'd be willing to bet they don't extend
federal marriage rights to gay couples who have joined civilly.
Jean Dudley
http://jeansvoice.blogspot.com
Future Law Student
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