Justin Taylor|12:00 pm CT

Should Government Get Out of the Marriage Business? Should Churches Get Out of the Legal Business?

Libertarian Jennifer Roback Morse is not impressed with the arguments of her fellows libertarians that government should get out of the marriage business and leave it to the churches:

We cannot escape the fact that marriage is an intrinsically public institution. We can’t avoid making collective decisions about its meaning and purpose. If we don’t do it explicitly, we will end up doing it implicitly.

As a libertarian myself, I have been quite disappointed that the “default” libertarian position on marriage has become little more than a sound-bite: “Let’s get the state out of the marriage business.” With all due respect, this position is unsound.

I will not be able to respond to this sound-bite with another sound-bite. The issues surrounding marriage are too deep. But I am not deterred from trying to persuade thoughtful readers who are up to the task of following a complex and unconventional argument wherever the search for truth may lead.

I make three points in this series of articles.

First, in today’s article, I show that it is not possible to privatize marriage.

Second, in tomorrow’s article, I show that the attempt to privatize marriage will not result in an increase in freedom, but will actually increase the role of the state.

Finally, in the third article, I show that attempting to privatize marriage will perpetrate great injustices to children.

Any of these reasons is sufficient to put an end to the “get the government out of the marriage business” mantra. All three of these reasons taken together form a compelling case for absolutely opposing the redefinition of marriage and for working tirelessly to create a robust cultural norm of one man, one woman, for life.

“Get the government out of the marriage business,” or its close cousin, “Leave it to the churches,” is a superficially appealing slogan. When I hear this, I often get the feeling that it is a way of avoiding the unpleasant dispute currently raging over the proper definition of marriage. I sense that its proponents are hoping we can remove this whole contentious topic from the public square and put it into the private sector. Each person or group can have its own version of marriage. The state, with its powerful coercive instruments, need never get involved in resolving this seemingly impossible stalemate.

While I understand this impulse, I believe it is fundamentally misguided. Taking a stand on the purpose and meaning of marriage is unavoidable. Here is why.

Don Carson, drawing on the historical practice in France and biblical-theological concerns about church and state along with creation and church ordinances, adds an interesting twist to this discussion:

I would argue that marriage is a creation ordinance, not a church ordinance. I’m not sure that ministers of the gospel should be involved in the legal matters of weddings at all. I rather like the practices that have developed in France (though I admit that they developed for all the wrong reasons). There, every marriage must be officiated by a state functionary. Christians will then have a further service/ceremony/celebration, invoking the blessing of God and restating vows before a larger circle of family and friends, brothers and sisters in Christ. Similarly, Christians seeking to be married may well undergo pre-marital counseling offered by the church. But the legal act of the wedding is performed exclusively by the state. That is one way of making clear that marriage is not a distinctively Christian ordinance (though it has special significance for Christians, including typological significance calling to mind the union of Christ and the church); it is for a man/woman pair everywhere, converted or not, Christian or not—truly a creation ordinance.

Ideally, of course, the state should adopt the same standards for marriage and divorce as those demanded by Scripture. But where that is not so—whether by sanctioning marriages after prohibited divorces, or by sanctioning marriages between persons of the same sex, or whatever— Christians will be the first to insist that because we take our cues and mandates from Scripture, our own standards for what will pass for an acceptable marriage will not necessarily be those of the state. So our own members will observe the biblical standards, regardless of what the state permits. The tensions we feel on these occasions arise from one of the most obvious truths in the New Testament: we live in the period of inaugurated eschatology, in the period between the “already” and the “not yet.” As a result we have two citizenships. We owe allegiance to “Caesar,” to our country in this world, and we owe allegiance to the kingdom of God. But where the two allegiances conflict, we must obey God rather than human beings. In this light, and remembering the history of marriage in the Western world, ministers of the gospel who perform marriages (as I do) better remember that when they do so, they are not performing a sacrament, or making a marriage union more holy; they are functioning as officials of the state, licensed by them. They are discharging their duties as citizens of an earthly kingdom. Then, in the larger service in which the wedding is performed, they may also be discharging their duties as Christian ministers—assigning to marriage a much higher value than the state does, drawing attention to Christian obligations for husbands and wives, reminding all present of the wonderful typological connection between Christ and the church, and so forth. In France, all of these Christian duties are separated from the legal marriage vows themselves; here, they are integrated (in church weddings) precisely because the minister is serving both as a minister of the gospel and as a minister of the state.

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