Should the Government Have Any Role at All in the Institution of Marriage?

David Harsanyi has written an interesting article over at wherein he argues that the Government should get out of the marriage business completely and have no involvement or interest whatsoever in any “personal relationship”  that individuals choose to enter. I would like to excerpt the article here and then raise a few points and ask for your thoughts. The full article by Mr. Harsanyi can be read here: Time for a Divorce. Here follow the excerpts in bold, italics and indented:

In the 1500s, a pestering theologian instituted something called the Marriage Ordinance in Geneva, which made “state registration and church consecration” a dual requirement of matrimony.

We have yet to get over this mistake. But isn’t it about time we freed marriage from the state? Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman — or no one at all — and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives…..

I believe your private relationships are none of my business. And without any government role in the institution, it wouldn’t be the business of the 9th U.S. Circuit Court of Appeals, either.

As the debate stands now, we have two activist groups trying to force their own ethical construction of marriage on the rest of us. And to enforce it, they have been using the power of the state — one via majority rule and the other using the judiciary (subject to change with the vagaries of public opinion)……

Is there any other personal relationship that is defined by government? Other than in legal terms, of course, this one isn’t, either.

Yet we have decided that a majority on the Supreme Court or, perhaps, a majority of the voters in your state or, even worse, a majority of the legislators in your state have the power to define what is often the most intimate bond of your life.

In our Utopian vision, no group is empowered to dictate what marriage should mean to another. And one of the great perks would be the end of this debate.

I will admit, there are times where the Libertarian perspective seems refreshing. (I am not sure if Mr. Harsanyi is Libertarian but his argument is). The Libertarian approach appeals to an instinct many have to simply an de-clutter in a civic world where government regulations and involvement leads to bewildering complexity and a tax code only a computer could love. It can be appealing to show Government the door in our lives and ask that it do less, far less. But I want to object to Mr. Harsanyi’s perspective in the matter of marriage on several counts and then ask for your input.

  1. Marriage is not a purely “private relationship” as Mr. Harsanyi states. Marriage involves the most essential and serious task of any community, state or nation, that of the procreation of the human species. Because there are children involved the merely private yields to a third party if you will, that of the child or children usually conceived in traditional marriage. And since children are involved who will venture forth as they mature into the wider society, it is a fact that others have a concern for marriage in terms of its definition, its quality, its stability and so forth. The quality of marriage and family life effects children profoundly and children affect the wider civic order profoundly, for better or worse. While others may wish to call their essentially non-fertile unions marriage and one might argue that such unions are private, one cannot argue that about traditional marriage which involves children. Neither can one remain completely disinterested in non traditional unions which involve the adoption or other of inclusion of children in their midst.
  2. Hence, the State does have legitimate interests when it comes to marriage. “State” here should not be seen as a mere abstraction or merely in governmental terms. Take “State” here to mean, the wider community as well. It is right and makes sense that there should be policies which protect and encourage traditional marriage. Further it makes sense that the State should insist on some degree of stability for this essential union that so involves children and their well-being. Until 1969 it was a rather lengthy and difficult process to get a divorce in this country. After 1969 most states passed “no-fault” divorce laws that made marriage the easiest contract in America to break. Since then, realizing the terrible impact that divorce was having on children, many States have begun to require waiting periods prior to divorce and some insist on counseling prior to divorce proceedings. It also makes sense that the State has some more proactive policies meant to strengthen the family. This may involve tax policy, emergency assistance to families in crisis and so forth. It is true that reasonable people will differ on the degree of help that should be provided and that at some point too much help makes people dependant. Nevertheless, due to the fact of children, there is an interest in the wider community that traditional marriage, as an institution, be strong.  It is a true fact that the many states have recently become ambivalent to the traditional view of marriage and we may wish to dismiss any governmental role based on this. But in the end, due to the presence and interests of third parties, there is going to be some governmental involvement and it is up to the Church to continue advocating for the traditional view of marriage there due to that fact.
  3. Mr. Harsanyi’s argument opens the door to Government – He calls his vision of marriage a “contractual agreement.” Oops. Where there are contracts there are laws. Where there a contracts there are often breeches of contract, lawsuits and the like. And where there are legal actions there is need for a judiciary. And where there is a judiciary there is Government. So even in his “Utopian” and libertarian world the government is not far behind.

So I think the purely libertarian argument of Mr. Harsanyi has flaws in it that fail to recognize the legitimate third-party interests involved in the fundamental institution that traditional marriage has always been. The most significant “third-party” involved is children who have needs and rights that must be fostered and protected.

But I would like to recast Mr. Harsanyi’s argument in reference to the Church and ask what you think. This recasting of the argument does concern the intersection of Church and State in the matter of marriage. I wonder if we were to consider what might ultimately become necessary anyway and do what many other nations already do? That is, what if we were to detach the Church’s role from the Civil License altogether? Currently in most U.S.  jurisdictions, when the priest or deacon officiates at at a wedding he is wearing two hats: Sacred minister and Justice of the Peace, he is acting on behalf of the State as well as administering a Sacrament. In other nations the couple goes to the civil magistrate and gets civilly “married.” Then they go to the Church, sometimes on the same day, and receive the Sacrament of Holy Matrimony. As the rift gets wider between the world and the Church as to what we mean by marriage I wonder if this sort of separate arrangement will not become necessary here in America?

One drawback of course is that many Catholic couples would get civilly “married” and delay the Sacrament. Hence they would be living in an invalid union. However, this often happens now even in the current dispensation through cohabitation and various forms of invalid marriage. Catechesis as always would be essential to avoid the drawback.

But I must say, here in Washington DC, which recently voted to recognize same-sex “marriage”,  I feel increasingly troubled to be signing civil licenses. What am I affirming as I sign the license? At one level I am merely saying that the couple in question stood before me and entered into what the State recognizes as the “civil contract” of marriage. But as a legal functionary (I have a civil license issued by DC to witness marriages and sign civil licenses) of the District of Columbia, am I not cooperating in something that I believe is wrong? Every time I sign a license, in effect am I not affirming the civil definition of Marriage that underlies that civil license? Should I be cooperating in this way and issuing licenses that lend credibility to a flawed notion of marriage?

I ask these as true questions. I am not being rhetorical here. I think it is important for us clergy in these circumstances to ponder with our bishops what is to be done and what are the moral implications of it. This is terra incognita (unknown territory) and in the years ahead the Bishops Conference may also wish to take this up. I have argued elsewhere that we may want to consider using more widely the term “Holy Matrimony” to describe the Sacrament and distinguish it from the world’s notion of marriage.

Hence, while I think Mr. Harsanyi’s argument is ultimately flawed,  there may be in the near future a need for the Church to more clearly distinguish herself from the State when it comes to the question of marriage. As the individual states of this land begin to define marriage in a radically different way than the Church, distinctions, even legal separation, may be necessary. What do you think?

This video depicts why strong marriages are important for the “third party” of marriage: children.

26 Replies to “Should the Government Have Any Role at All in the Institution of Marriage?”

  1. Msgr.,
    No answers from me, just more questions and concerns in addition to the ones you raised. If exclusive heterosexual marriage is deemed unconstitutional, won’t it be necessary for churches to allow homosexual “marriage to maintain their justice of the peace role? If we follow the
    European model and have the Sacrament after the Civil Ceremony, wouldn’t the Church merely be convalidating marriages at that point? An And aren’t we diluting the marriage brand by allowing the State to misdefine the terms? The Church will lose that tug o war I fear!

    1. All excellent points. We are no longer a partner with the State in this matter and it may be time to formalize that by getting out of the business of supplying civil ceremonies at the same time as the Conferral of the Sacrament.

  2. It’s funny, last week I began to post a comment to the August 4 article ‘Why Anne Rice is Wrong’. I wrote the post during a thunder storm, lost power, and l subsequently lost the post. I had great reservations about posting my comments in the first place, largely because they represented political views that I was uncomfortable discussing in this forum. Providencially, it’s seem’s I was wrong, so don your tinfoil hats, here I go.

    It is apparent to me that Atheist, Marxist, Communist and Socialist ideologies ever increasingly control our worlds Secular Media, Legislatures and Politics Certainly, these ideologies have always been in play, but masked, to a certain extent, under the guise of politically correct language, ie; Secular Humanism and Moral Relativism. Through the use and success of such tools as the Coward-Piven Strategy and Saul Alinsky’s Rules for Radicals, to name just a couple I’m aware of, these ideologies and methods have taken root, we’re in trouble. Most seem be asleep, in denial, or at least at peace adopting a live and let live compromise.

    I’m not a philosopher and admittedly know little about that of which I speak, except the little I have read. My point being, even an idiot like myself can no longer be in denial. The media, courts and political arena would like me to believe that I am the minority that stands firm for everthing represented by the One, Holy, Catholic and Apostolic Church or even the Constitution of the United States of America for that matter. I’m led to believe this is what the people want. Right or wrong, I know one thing. The damage is done, this country doesn’t seem ‘One Nation Under God, Indivisible’ any longer. We’ve all been affected or outright infected.

    I don’t know what the answers are and don’t think we’ve even begun to see the prevailing confusion, suffering and persecution if this persists. The time to choose is now, the gloves have come off, the mask has fallen away, May God grant us all the courage, grace and virtue necessary to overcome the continued lies mandated to us by the spirit of this world and may the Holy Roman Catholic Church forever be our faithful guide.

  3. Msgr. Charles, your idea of adopting what many other countries already do appeals to me. I first heard of this approach when I lived for six weeks in Mexico, where a couple marry civilly and then, if Catholic, have a sacramental marriage. You mentioned the drawback, of course, which is how much time might elapse between the civil and religious events. You also offer the solution, catechesis. I would like to see an elaboration on what the content of that catechetical instruction would be, and when and how it would be delivered. My experience of catechesis for marriage is that it is the weakest of any catechesis I have ever had. And I rarely meet any Catholic who seems to understand what a Catholic marriage means.

    1. Thanks for this challenge. I agree, the six month preparation is not always adequate and is poor in many regards. In the past the Church depended a lot on the culture and the family to supply the basics of a good marriage. That is no longer possible in most cases and the Church has not adjusted to this well. It is also true in the schools we run. In the past we depended a lot on families for support in the educational process. Now the family is in disarray in many cases. It is widely based problem.

  4. Msgr:
    Harsanyi’s approach may be inspired by libertarianism, but it ends in anarchy. The role of marriage and the traditional family as the cornerstone of civil society does not begin with a theologian in the 1500’s. In fact, the idea itself can be traced back to pre-Christian times—so that makes him just plain wrong on the facts. His argument, if implemented would upend the very notion of community that is basis for all law—natural and positive.

    I would not agree that your signature on a specific civil license that comports with what the Church recognizes as a vaild marriage somehow affirms licenses issued by others to couples in non-recognized relationships. I appreciate your concern, however, about the implication that the current law has on traditional marriage—the law has direct and indirect consequences/effects and to suggest that all relationships are “private” misses the important and powerful impact of the law as “soulcraft”.

    Another fine post, msgr!


    1. Thanks for adding your voice here. I appreciate the historical reminder as well as the thought on the question of the signature. I do wonder of the future though as the rift continues to widen between what the seculars mean versus what we mean if we will not have to formalize the distinction.

  5. Ironically, my husband has been arguing with some of his co-students on this very issue. Many of his co-students are liberal and non-religious. They view marriage as being something that everyone should have the right to like gays, brother/sister, polygamists, etc. But as my husband points out, what they view as being marriage is something different than what the religious right views as being marriage. Someone (non-religious) called marriage a love and legal contract. We’re now at the point of allowing our government to define what a marriage is. Should we do this? Who has the right to define what a marriage is for all peoples?

    While I understand that the government should protect those of us who have no voice: children, I still am concerned about the government defining that relationship. My husband and I have discussed what the best solution may be and the only one that we came up with that would make it fair for religious and non-religious alike is to have the government stop issuing marriages. Instead institutions religious and non-religious should issue them. This does lead to what are the rights of these married couples/groups. Should married couples with children have tax breaks? Should married couples receive privileges outside of single people?

    There is no easy solution. Perhaps the best answer is the government issuing civil unions and other institutions performing a religious or non-religious marriage. A solution does need to be met at some point or the government is going to be placed in the precarious position of telling me what my marriage is. I don’t like this idea one bit. And I’m sure many married couples religious or non-religious want their marriages defined for them either.

    This is simply not a legal issue as many who are lobbying for gay marriage make it out to be.

    1. Yes, I understand your concern. But if marriage is to have any legal recognition at all the govt is in the mix somehow. Otherwise, the relationship can contain no legally binding rights or responsibilities. So may want this antinomian approach but what happens when there are quesitons of property, rights of children, inheritance, etc etc.?? If the govt through the judiciary has no role in enforcing legally binding contracts then it really isn’t a contract and rights are not protected. In the end the most powerful wins any dispute without recourse to mediation.

      1. “We’re now at the point of allowing our government to define what a marriage is.”

        Actually, the civil law in many states (like the one I live in) has for a long time defined that marriage is the union of a man and a woman, without recourse to religious principles of any kind. The current debate is not about whether to define what constitutes marriage, but how. DOMA was never necessary or contemplated until gay marriage proponents sought to repeal state laws like the one here in my state and re-define the law to suit their preferences.

        “Should we do this? Who has the right to define what a marriage is for all peoples?”

        To both these questions, an important point: in a democratic republic like ours, “we” are the “government.” If we, in our collective capacity as a community wish the law to reflect our settled opinion about what marriage is, then we petition our legislative representatives to do just that. This debate is not just about some impersonal governmental entity “forcing” the views of one group or another “on” the “people.” This is about how the law—any law—emerges through the discussion and debate of private citizens whose collective consensus is re-presented in the legislature and results. When people suggest that we run away from the choice because a consensus is difficult, we abandon our obligation to truly “govern ourselves.”

        Who should define marriage? We should.

        Who has the right (actually it is “authority”) to define what marriage is for our community? We do.

        How do we exercise that authority? Using our political rights to advocate our sincerely held beliefs about what marriage is.

  6. These comments are taken from my own blog:

    I have said that I do not think that the institution of marriage should be controlled by the state. I think Monsignor’s post is a good jumping off point for my own reflections on the matter.

    Monsignor points out that marriage is not a purely private relationship. This is true. The relationship is very public and involves the most important task of the community, maintaining the species. However, every relationship that we enter into is not a purely private relationship. Every relationship that we enter into, whether informally or formally, effects the rest of the community. For example, my relationship with Monsignor Pope impacts the restaurant across the street from St. Mary’s. This impacts the tax collections of the District of Columbia which impacts the whole nation. Thus, just because a relationship is not purely private does not mean that the state should get involved in the process.

    Monsignor next states that there is legitimate interest for the state in the institution of marriage. This is true. When marriages break up you oftentimes see the state be the one burdened with financial obligations. However, just because a state has a legitimate interest does not mean that the state should get involved. The state must weigh whether it is in the best position to regulate an activity that it has a legitimate interest in. I think that it is clear that the state, at least here in America, has shown that it is a failure at doing so. I think that what I propose below is much more efficient and addresses the interest better than the state can.

    So then, what is the solution? My solution is to leave marriages up to religious institutions, such as the Church. Thus, if I want to get married I go and get married by Monsignor. If a Jewish couple want to marry they go and get married by the Rabbi. Then, the couple can enter into a contract in which they spell out the duties owed to one another in the marriage. Monsignor correctly points out that this opens the door to government involvement, but it is a different kind of involvement.

    Right now when a couple enters into a civil marriage they agree to be bound by the laws of the state they live in, either statutory or common. Most of these laws can not be waived by the couple. For example, you can not waive the no fault divorce provisions of the marriage law in California. So, under my proposal there would be zero default laws with respect to marriage and the contract entered into by the couple could be tailored as they see fit. For example, a Catholic couple could have a provision where the only way the contract can be broken is if an annulment is granted. Another couple could have a provision where either side could terminate the contract for any reasons with 30 days notice. Thus the couple could tailor their civil contract any way they please.

    This puts marriage back where it belongs, with the ecclesiastical authorities. I can not speak about other religions but in the Catholic Church this means that the emphasis is again on the sacrament and not on the civil marriage. Furthermore, this allows the Church to demand that before a couple be married in the Church that they agree to having a certain set of terms in their contract. It also does away with forcing Monsignor and other clerics to sign a license which is also granted to homosexual couples.

    1. Well, you state your position well. I still wonder how a legally binding contract can have any force of law if the State is not involved in some way. That is why a license may be a necessary evil to protect the rights of the principals and the tertiary individuals. In the end I think we agree though that it may be necessary for the Church to “divorce” herself from any partnership with the state in the issuance and ratification of such licenses.

  7. I favor the ‘Libertarian’ approach. The dual-role/ceremony makes sense when there is substantial overlap between the civil and religious interpretation of marriage. When interpretations diverge, the celebrant is conflicted, and perhaps compromised, by his attempt to wear two different hats at once. As our country seems intent on re-defining marriage into a contract utterly incompatible with Catholic teaching, I see moral justification for the Church removing itself from the civilian role.

    This would also remove some of the sham surrounding supposed-Catholic marriages. I’m confident, Msgr, that you’ve celebrated weddings where the couple had no more than a passing interest in their faith, or were having a church wedding to appease the parents, or because the church background would be great for the photographs. Wouldn’t authenticity be served by enabling couples to conduct the legal ceremony at a court house – and then choose whether or not to have a real Catholic wedding? I do not see an explicit moral hazard in this approach – many of those couples getting married in church are having sex with each other, living with each other, and already have children with each other. A time difference between the legal and religious ceremonies seems irrelevant in these circumstances.

    1. Yes, it is the divergance that raises the issue. I generally agree with your remarks about authenticity though I am concerned that the time difference problem would get worse in the new dispensation.

  8. What you are suggesting, I have viewed for a long time as the solution here. Why should a priest, or a minister or rabbi, be empowered to serve a civil function? Marriage as a sacrament should not entail the signing of a civil document or the performance of a civil service. (Baptism, for example, does not serve as a birth certificate. Nor does a funeral issue a death certificate.)

    Not only that, it alleviates issues related to any reasons why a priest might prefer to delay or counsel against the sacrament of marriage in particular cases. Whereas the state simply officiates no matter who arrives with a license.

    This solution, while it would complicate matters for couples – in terms of logistics – simplifies and clarifies the two separate functions, one civil, the other religious. It’s a strategy whose time has come!

  9. I had never considered the dilemma a priest would face signing the marriage license. Thanks for that perspective.

  10. Just a couple of things I would like to clarify with my perspective.
    The truths, I believe, are that marriage is definitely more than a “private relationship”. Theres a bond between a man, a woman, and the priest who marries them and supports them. But this ideal of “marriage” is a holy sacrament of the Christian faith. Its ideals and traditions are based on thousands of years of history and laws by God and man alike. This faith and these ideals we want to keep holy and traditional, and I believe that is completely just. But just as our great country was founded on Christianity, it was built to protect itself from the inside out; we are not a Christian country, we are a country of all beliefs. So to look at this situation from any perspective or religion, even if Christianity did not exist, people would still join together and make new life, and this great country should allow equal rights to all that want to join.
    Now I believe that this movement is not at all trying to condone gays getting married, or trying to separate the importance of procreation from family, but trying just to bring equality, like America has always promised its citizens. The argument then should be that by law, NO ONE should be married by the state. It is the laws responsibility to join two people by law. It is the church’s responsibility to teach the importance of marriage to its followers and non-followers without force.
    In reference to number 2. Of course procreation is important to society and important to life, as is child development, but to go as far as saying the traditional Christian marriage in infallible is to be a bit extreme. There are people out there who are not religious, but definitely know the difference between right and wrong, the meaning of happiness and beauty, and how to be a good honest citizen. To enforce the law of traditional marriage would be to force our beautiful beliefs onto them and although I am a believer, I believe also on the protection of every Americans life to have their freedom.
    To take the sacrament of marriage out of the state, would mean true equality for all peoples wanting to join together in love, and in law. I would like to think, and would love response, that with the “official name” being just Civil Union, that Christians would still be left to be bound by God in the church traditionally, and without tarnishing the practice and beliefs by people who hate the church. Christians could still be “married” without worry that their religion is being invaded. And Christian families can still thrive through their child development practices. Its seems win-win that homosexuals be given their rights to be unified (not married) in America like they are promised, and the Church is not forced to change their belief and be forced to teach children that men can “marry” men.
    Now one would argue that it opens the door for men and two women to be “married” or a man and a horse or car or whatever, but as is the law of man and wife to be separated from religious belief, it is the laws decision, America’s decision, and ultimately the peoples to decide this, and I am very confident that none of those propositions would pass. A horse cannot visit a man in the hospital. A marriage is to be practiced in the beauty of the Christian faith, and the law should govern the civil union, and the rights of the individuals whether they believe in God or not, and we as Christians would have a say and an argument to keep it from getting to chaos and insanity in what is ALSO our country.

    1. “No one would argue that it opens the door for men and two women to be “married” or a man and a horse or car or whatever, but as is the law of man and wife to be separated from religious belief, it is the laws decision, America’s decision, and ultimately the peoples to decide this, and I am very confident that none of those propositions would pass.”

      In law school, I read journal articles by academics who stated pretty clearly that the law should not obstruct (and they proposed laws that guaranteed) a “right” to allow any number of people to “marry”. My daughter was given similiar articles to read in her high school “social justice” class. There are indeed people making that very argument—and remember that even though Congress cannot get the votes to codify Roe v. Wade, the abortion “right” was created out of whole cloth by a simple majority of unelected academics who found their way onto the US Supreme Court.

  11. In my humble opinion, if the federal court system decrees that homosexuals have a “right” to marriage, the Church will ultimately have no other recourse than to somehow separate itself distinctly because I fear it will not be long before churches that refuse to allow homosexual weddings will be legally challenged in spite of 1st Amendment protections (who would have ever conceived of legal “partial birth abortion??). A couple could be married (actually, should be) married in Church, the primary vow being made to the Lord our God. THEN if they want the state tax benefits, if any, they could sign up for them with the state. It seems to me we have it backward in that we have to seek “permission” from the state to get married (“applying” for the license, as “seeking permission” is implied).

    The only certainty is that this thing will not go away. 20 years ago such conversations would have been unthinkable. A generation later, we deem it necessary to “discuss” or “have dialogue” as if there are legitimate claims to “rights” within a sacramental covenant. We can only imagine what the next generation will allow.

  12. As for the time difference between a civil & religious marriage, could the Church not require that the civil marriage be held only within 12 hours before the Church’s celebration of Holy Matrimony?

  13. Msgr. Pope,
    Are you allowed to conduct the Sacrament of Marriage for a couple that does not have a government marriage license?

    1. We are not supposed to do that. It is not so much a question of Church Law as Civil. Situations where there is danger of death might be an exception. If the priest were to conduct a marraige without a civil license this would not affect the validity of the marriage but he would, under the current situation be in violation of civil law and we are not advised of permitted to do. This is especially true in DC where we hold credentials to be able to conduct marriages. Hence what I am recommending is that we might consider if such legal credentials need to be ended and that we no longer provide civil sanction for marriage. I think then we would be freer, in terms of civil law to conduct whatever relgious ceremonies we wish without there being civil requirements intertwined. Clearly experts in civil Law would need to advise us how to proceed in order that we observe just civil laws to uncouple this current legal setup and free us from it.

  14. The government shouldn’t be involved in marriage at all. It was Luther, Calvin, Henry VIII and Oliver Cromwell that got the government into marriage. The Church needs to read her history, marriage was always a private arrangement between families. The church elevated it to a sacrament. The Romans briefly were involved in government marriage, Augustus tried to make people get married, which resulted in much misery for everyone and the laws were repealed.

    1. Well, Anne, that is a very modern notion of your. It is appealing to my Libertarian streak. But, Marriage is too important to merely say that Govt should have no role. Frankly such a distant posture would be impossible. Can’t you do better than quote from Ancient Rome? Its hardly a paragon to emulate.

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