One of the assertions that is often made in regards to dealing with the same sex marriage issue is that the state should “get out of the marriage business” and leave it to the churches. I have long thought this a problematic point of view as a key component of marriage is the fact that it creates, in one action, a series of rather significant legal relationships and obligations. On that point see my post from last year: Can Government Get out of the Marriage Business? (Also, James Joyners’ post from a year prior to that: Should Government Get Out Of Marriage Business?). My fundamental point is that the only way to truly get government “out of the marriage business” is to make marriage nothing more, from a legal standpoint, than a type of friendship. The problem, of course, is that if that were the case we would still need a series of laws and legal processes to deal with issues like child custody, inheritance, joint property, etc. (in other words, all the stuff the marriage, as a civil and legal institution, deals with). Sure, we could either call it something else or create a myriad of processes to deal with these issues, but would that really get government “our of the marriage business”? I think not.
Indeed, most arguments about the government getting out of the marriage business end up being nothing more than issues over semantics wherein couples can enter into civil unions (or whatever one wants to call them) for the legal stuff and then leave “marriage” to non-state institutions. This strikes me as the government staying rather firmly in the marriage business, roses by any other name smelling as sweet and all that. Further, changing the words would not take away the political turmoil associated with the gay marriage question, as there would still be a substantial amount of political opposition to same-sex “civil unions” (see, e.g., the recent North Carolina referendum). We have to remember: the issue at hand is fundamentally about objections to treating homosexuals as equivalent human beings to heterosexuals. All objections to same-sex marriage are vested, fundamentally, not in profound belief in tradition (even if it is that is the claim) but, rather, in a belief that homosexuality is sinful or unnatural (or both). As such, getting government out of the marriage business would hardly solve this issue one way or another.
All of this is a bit of lengthy preface to an observation that Gary Wills made in the New York Review of Books a few days ago in a piece called The Myth About Marriage which makes an interesting historical point about the question of church and state and the “marriage business.” He notes that for quite some time, the church actually wasn’t in the marriage business:
The early church had no specific rite for marriage. This was left up to the secular authorities of the Roman Empire, since marriage is a legal concern for the legitimacy of heirs. When the Empire became Christian under Constantine, Christian emperors continued the imperial control of marriage, as the Code of Justinian makes clear. When the Empire faltered in the West, church courts took up the role of legal adjudicator of valid marriages. But there was still no special religious meaning to the institution. As the best scholar of sacramental history, Joseph Martos, puts it: “Before the eleventh century there was no such thing as a Christian wedding ceremony in the Latin church, and throughout the Middle Ages there was no single church ritual for solemnizing marriage between Christians.”
Only in the twelfth century was a claim made for some supernatural favor (grace) bestowed on marriage as a sacrament. By the next century marriage had been added to the biblically sacred number of seven sacraments.
So, interestingly, at one point in time the church itself wasn’t directly in the marriage business, but rather it was handled by the state. And, again, the above points to the fact that marriage, as a civil institution, has key legal significances that make it something that government has reason to be involved with, unlike, say, friendships.
Now, none of the above makes an argument for same-sex marriage. What it does do, however, is underscore the problem with arguments that are predicated, at least in part, on traditional understandings of social phenomena: often what we think has “always been that way” may, in fact, not always have been that way. Contemporary US culture associates weddings and marriages with churches and the clergy. Therefore, we reason, it has always been that way. This leads to assumptions that government has encroached on an institution when, at least in the case of Rome and the Catholic church, it was actually the other way around.
All of this also fits into a post by Doug Mataconis from the other day: There Is No Such Thing As “Traditional Marriage” (which discusses various historical evolutions of the institution) and a piece I wrote some time ago: Redefining Marriage (which discusses the less-than-“traditional” marriage of the key Jewish patriarch, Jacob, who later became known as Israel). Doug quotes, at length, a rather interesting piece about the evolution of marriage as we understand it. That evolution has been one more towards the notions of love, romance, mutual attraction, and companionship in a way that has augmented the more traditional (if I may use that word) focus on property, progeny, and politics.
