On Mar 15, 2005, at 2:47 PM, James Maule wrote:
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
While I have studied and deeply appreciate cultural anthropology, I am far from childhood and have learned to recognize condescension when I see it. I am a 45 year old woman, with 9 years active duty in the USN, two marriages, and a 24 year old son. This time I'll assume you're simply using the classic storyteller's narrative device. Next time I'll be less polite.
(from which our traditions in this respect originate)
No. "From which our traditions deviate". Read on, McDuff. (With apologies to Shakespeare)
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.
I have no argument with any of this. Doesn't mean there aren't any, just that I don't have one.
Marriage was originally a church matter, a sacrament.
Er, hold on a minute. To avoid confusion, why don't we agree to say that at the time of the migration to North America (early 1600s CE for our purposes) marriage was a sacrament of the Anglican church. Prior to that, it had to be incorporated into the doctrine of the sacraments in the Catholic church. Prior to *that*, it was largely a civil affair, with little or no ceremony. I seem to remember reading that a couple would pledge to one another on the steps of the church as a means of making a public commitment. Later, they would ask the blessing of the priest on their union. (Much like Prince Charles and Camilla plan to do.)
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).
Er, you forgot the publication of banns.
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,
What time frame are you speaking of? You see, it took a long time to get that couple *into* the church in the first place. I daresay that they weren't entirely successful, and unions were established without the benefits of clergy.
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.
Um, ok. Would you kindly cite your sources?
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.
Alas, I am woefully ignorant of how they do it in France.
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.
Um. Ah. No. Nonononono.
With all due respect, sir, this is historically incorrect. In fact, the Puritans of Massachusetts Bay Colony, the Pilgrims of Plimoth, the Anabaptists of Aquidneck, the Baptists of Rhode Island, all held that marriage was in fact a "strictly civil affair". The wanted *NOTHING* to do with marriage as a religious rite. Marriages were performed by magistrates ONLY. John Cotton, John Robertson, Gov. Bradford, Roger Williams, Rev. Blackstone, all declared in their writings that marriage was NOT a sacrament. I am willing to cite primary sources, but it will have to wait until tomorrow after my Constitutional Law class, and my corned beef and cabbage luncheon.
Remember, the very reason they came to this continent was to leave behind what they felt was apostasy and persecution. They weren't called "separatists" and "reformers" for nothing.
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.
Again, history shows otherwise. To the first settlers, marriage was akin to a business contract. A wife was endowed with power of attorney by default to conduct her husband's affairs when he was away, either hunting or sailing.
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.
I'd say that that's the part about government having no say in religious matters (Roger Williams model of separation). Just remember that the wall of separation has two sides: religion shall have no say in Government (Thomas Jefferson model of separation--man, I hope I have that right and didn't get them mixed up.)
If a government chooses to define relationships between individuals, it
needs to do so without piggy-backing on churches and church definitions.
It already has. We have codified those definitions, and included in that codification is the tradition going back before the founding of marriage as a civil affair.
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.
I assume you mean that the government can prevent a minister from performing a marriage ceremony for non-qualifying parties?
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.
No. You are lumping non-pairbonded (parent-child, siblings, strangers who want a tax break) individuals in with couples who are in sincerely committed, faithful (and often, but not always, sexual) relationships. There is a difference between a marriage between equals and a domestic partnership between a parent and child.
What you are proposing, Mr. Maule, is that marriage is solely a religious institution. It is not. Historically, marriage has been primarily political or business driven. It was precisely for that reason the Catholic church poached it and subsumed it to their domain. Oddly, Henry VIII didn't object to that--his beef was that the pope wouldn't allow him a divorce for political expediency, so he declared *himself* the spiritual head of the Church of England. The Puritans and Pilgrims absolutely refused to acknowledge marriage as religious. It was strictly a civil matter. *That* is why we have a tradition of civil marriage in America.
In other words, the state does not belong in the marriage business,
Yes, it does.
the baptism business, or the memorial service business.
Nor, I assume, "last rites".
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.
Why not?
After all, having one's child baptized in a church doesn't satisfy the requirement that the birth be recorded with the state government.
Actually, I think it does. I've heard of registrars accepting baptismal certificates in lieu of birth certificates. Again, I could be wrong.
So the practice of states "adopting" the administering of the church sacrament of marriage is another entanglement that needs to be undone.
There is no entanglement. There already exists the option of marriage by non-religious officiants. It had its origins in the first settlers own religious beliefs.
Jean Dudley http://jeansvoice.blogspot.com Future Law Student
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