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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28 thoughts on “Should Government Get Out of the Marriage Business? Should Churches Get Out of the Legal Business?”

  1. bill says:

    Weddings in Korea are highly commercialized so that only a small minority of weddings are performed at churches. The majority of them happen at what are called Wedding Halls. Essentially, they are large banquet halls that turn out weddings like an assembly line. They usually have a theme and grooms dress in sequined tuxes and the couple march down the aisle to smoke effects, disco balls, and laser light shows. I felt that such ceremonies trivialized the wedding ceremony. I do feel that a wedding ceremony ought to reflect the sacredness of marriage in both form and function.

    1. James Rednour says:

      “Another good analysis of the issue:”

      Not really. All the arguments about the potential problems with “getting the state out of marriage” can be solved by a simple contract between the parties prior to marriage. Anyone is then free to enter into a union with another based on contract law and not the state dictating who may and may not enter into a lifelong arrangement with another. Don’t forget that one of the main reasons we have marriage licenses was to prevent mixed-race marriages, so one of the main reasons that the state ever became involved in marriage was to promote discrimination. That’s a legacy Christians should want to get as far away from as possible.

      Keep in mind that the nation state as we know it today has only existed since the Peace of Westphalia at the end of the Thirty Years War. The institution of marriage has been around much longer than the state itself.

      1. steve hays says:

        James Rednour

        “Not really. All the arguments about the potential problems with ‘getting the state out of marriage’ can be solved by a simple contract between the parties prior to marriage.”

        Lydia McGrew discusses that alternative. So you’re not engaging the argument.

        “Don’t forget that one of the main reasons we have marriage licenses was to prevent mixed-race marriages, so one of the main reasons that the state ever became involved in marriage was to promote discrimination. That’s a legacy Christians should want to get as far away from as possible.”

        That’s a purely emotional rather than a logical objection. Illustrates the weakness of your case.

        1. interesting topic, methinks says:

          “That’s a purely emotional rather than a logical objection. Illustrates the weakness of your case.”

          A casual observation: Emotions are a critical part of who we are and how we form opinions. While we should always examine them, sometimes indulge them, or often separate from them, we ought to never divorce them. Even from objections.

          1. steve hays says:

            Laws against miscegenation were also emotional.

      2. Dave Dacus says:

        I agree with your contract idea. The government should not be involved in marriage for the same reason it should not be involved in baptism or church membership, since in both of those commitments someone is entering into a lifelong arrangement with other persons, namely, other persons in that church. The government needs to be involved when the contract deals with property or injuries to persons. D.A. Carson’s argument appealing to marriage as a creation ordinance as a justification for the state’s involvement loses its grounding by the fact that the original, unfallen creation bears and connotes no legal force into these latter, “in-between” days as grounding inherent rights by natural law because it does nothing but serve the purely miraculous second Adam who is its fulfillment. I would agree that we are living now in the “already, not yet” state, where there are yet two kingdoms. But that means merely that a state is possible, and that it is secular, protecting spiritual/religious liberty. How is marriage anything other than a spiritual decision? The natural man has no reason to commit himself indefinitely to another person sexually. All the reasons given appealing to natural benefits for the flourishing of society are merely natural and are impugnable. The only reason to commit to another, male-female, is Christ. If property is involved in the case of divorce for example, then the state rightfully steps in.

        1. Brian says:

          I agree with James and Dave. I think a separation is best.

          If the govt decides that two people contractually committing to each other should have certain benefits — reduced taxes, inheritance, shared property, health privacy access, etc. — then that’s fine. I don’t care who decides to commit to that civil contract. It could be two elderly sisters who share a house together — I don’t care. It’s a legal commitment which bears appropriate legal consequences if it’s broken.

          Marriage is inherently religious. Even if viewed as a creation ordinance (not a ceremonial ordinance), it must be interpreted within a religious and social context. So let that happen freely, without government complications.

          From a gospel standpoint, I find the civil/govt discussion really gets in the way of being able to talk to people from the Bible. The equality argument has merit — which is why it gets in the way. I want it out of the way so I can explain God’s meaning and purpose in marriage without government baggage.

      3. You should really read my original articles. I dealt with the contract analogy quite thoroughly. The problem you don’t address is the problem of children. They are not contracting parties. Contract parenthood will be a grotesque injustice to children.
        http://www.thepublicdiscourse.com/2012/04/5073

        1. Brian says:

          Interesting distinction between the permanence of adoption vs. the contract parenting model.

          But we do have contract parenting — and I wouldn’t say it’s an injustice to the children. I’m legal guardian for two children who are for all intents and purposes my son and daughter. For various reasons, we are not in a position to adopt them, but would if we could. While that legal standing (not sure if it would be called a contract, but it acts like one in ways) is not permanent, it’s very stable. And it is definitely in the best interest of the children. In fact, we took on that pseudo-contractual obligation precisely for their protection and well-being.

          Further, our society deals with out of wedlock children and divorces in contract-like ways — child support, visitation rights, custody claims, etc. Those are often messy, and provide some support for your theories. But they’re not always messy, are often necessary, and don’t necessarily result in injustice to the child.

          Really, it’s not the marriage that constitutes the parental obligation to the child; it’s the parental reality that constitutes the obligation. And if you take on that obligation through legal means (guardianship/custody/adoption), our government holds you fully responsible as if you were the child’s biological parent. Yes, you can “give up” that responsibility — but so can a biological parent. Adoption involves a parent or parent releasing their parental claim on the child. I guess my point is that nothing is immutable.

          I’m not really a libertarian. The position I lean toward is a separation of responsibilities. The govt recognizes a legal covenant between two people and provides benefits and responsibilities in the civil realm accordingly. The church recognizes and celebrates marriage in it’s full biblical sense — and holds the parties to that commitment in the full biblical sense. The place of children falls in both areas. As a civil covenant, the two parties have legal responsibilities toward the child. As a Christian covenant, the obligations for raising children in the fear and admonition of the Lord come to bear.

          1. I congratulate you for taking on the responsibility of becoming legal guardians for two children. I’m guessing that these children did not come into being with a life-plan that they would have guardians, not parents. Guardianship was a back-up plan. Your comment confuses a back-up plan, for dealing with exceptional situations, with a change in what is considered an acceptable “alternative lifestyle.” (BTW: just so you know, I am an adoptive parent, and have been a foster parent.)
            The “intentional parenthood” or the “parenting contract” models are not being put forward as back-up plans but as something adults are entitled to do, just because they want to. Adults make a plan, prior to the child’s birth, that will divide up parenting responsibilities, etc. I’m not making this up. http://www.dailymail.co.uk/news/article-2047671/High-Court-judges-blast-gay-parents-fighting-little-sisters.html I think the judge tore his hair out over this situation because there was no just solution to a situation like this one.
            And yes, the post-divorce conflict definitely provides support for my theories. I absolutely think that the way children are treated after divorce is unjust to them, and should not be inflicted upon them without some compelling reason. That was the common sense of the fault basis for divorce: the adults had to offer a reason to break up the marriage, which, by definition, separates children from at least one parent, some of the time. Adults need to offer some account of themselves before they do such a thing. No-fault divorce removes the presumption of permanence in marriage.

  2. Ken Stewart says:

    A really good article, with DAC’s material very helpful too.

    Some time ago, I read David Mace’s book, _Hebrew Marriage_. The implication is that in biblical times, marriage was a civic matter governed by the elders of the community rather than being a priestly matter or a rabbinical matter. Thus the marriage contract which Joseph was contemplating annulling (but quietly out of deference to Mary) would have been a civic matter. It was no less holy for its being civic. Jewish society was not religiously plural; nevertheless marriage administered by the civic authority worked even in that unitary society.

    It will seem that one of the best reasons for keeping marriage and weddings religious or churchly is that it enables the Christian community to advise the state as to what constitutes marriage and as to who may be married. But as society grows more religiously pluralistic as well as increasingly secular, the Christian community cannot presume that its advisory role to the state can be simply what it formerly was. Now to accept that the state may define as well as regulate marriage without respect to the Christian community will mean that the definition of marriage and the subjects of marriage will differ, over time, from what Christians would prefer. To this, the right answer would seem to be that the state’s readiness to sanction _some_marriages of a kind and for _some_persons which the church could not endorse does not mean that there can be no genuine or bona fide marriages sanctioned by the state. Abuse does not rule out right use.

    Therefore the European model of civic ceremonies followed by a distinctly Christian ceremony deserves closer attention.

  3. Andrew Evans says:

    The article confuses marriage as a public institution – which it certainly is – with marriage as a state institution which it doesn’t have to be. Confusing “public” with “state” seems to me to be an odd mistake for a libertarian to make!

    Interesting that Carson is quoted at length – his article could equally be used to make the argument that in societies where the understanding of marriage has moved so far from the biblical understanding (as is the case here in the UK) the two kingdoms conflict we experience could actually be eased by the state not defining marriage but dealing instead in civil partnership and allowing other public communities to define marriage.

    The article also fails to deal with the historical elements; marriage has survived very well without being state defined in various times and places.

    Looking forward to parts two and three!

    http://www.andysstudy.org/2012/02/why-im-not-signing-coalition-for.html

  4. steve hays says:

    Since contracts must be enforced by courts, the contractual alternative doesn’t succeed in getting gov’t out of the marriage biz.

  5. Ed Hyndman says:

    An interesting approach. The secular idea of relationships differs in more than one way from the Biblical idea of marriage however. The bible shows marriage instituted in a creation act, indeed “for this reason”, (the reason being the way God creates Adam and Eve) marriage exists. This is quite different than the secular idea of relationship which guides much thinking about marriage today.
    As the “State” becomes more secular it is likely the idea of marriage and its expression in law will become secular too. This presents a dilemma. When my wife and I married the law simply expressed the religious marriage covenant into which we were joined. But if I understood the law to reflect a secular idea of relationships and to be guided by that, then it would not in fact be marriage. I would be very cautious about signing up to a set of legal protections which the State controlled which were guided by a purely secular concept of relationships. As the State continues to move from a reflection of biblical understanding we may be sure that the law will move further away from reflecting christian marriage. The problem is not marriage law, but a State that is not christian, and is moving further from that position. The dilemma then arises; can the church recognise state marriage and can the state allow marriages which are religious and social but not recognised in law.

  6. Paul M. says:

    This line from Carson is telling: “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…” D.A. Carson

    This excerpt reveals the fundamental difference between Christian conservatives and Christian libertarians–a libertarian does not assume that because the Bible announces that something is moral or immoral that it automatically gives the state the responsibility to mandate or ban that thing. It’s a glaring assumption in Carson’s reasoning that goes unexplained.

    Carson isn’t the only prominent conservative theologian who makes that assumption. Here is an essay that I wrote regarding John Piper’s view of gay marriage.

    http://religioninamerica.org/2011/05/30/evangelicals-and-gay-marriage/

  7. steve hays says:

    Paul M.

    “This excerpt reveals the fundamental difference between Christian conservatives and Christian libertarians…”

    The fundamental difference being that Christian libertarians are often indistinguishable from non-Christian libertarians.

    “…a libertarian does not assume that because the Bible announces that something is moral or immoral that it automatically gives the state the responsibility to mandate or ban that thing.”

    So you think Christians should unconditionally surrender on issues like abortion, infanticide, euthanasia, homosexual adoption, &c.?

    Regarding your essay, you say: “Kidd believes that evangelicals should stop ‘fighting to make the government defend a biblical view of marriage.’ It’s ‘a losing battle…'”

    Of course, if you give up before firing the first shot, then you’re bound to lose. Your alternative is to lose every time.

    “Even more pragmatically, embracing the disestablishment of church and state in marriage could prevent a harmful anti-evangelical backlash in the future.”

    Once again, you can’t persuade people if you refuse to make a public case in the first place.

    Moreover, if the church refuses to stand for anything, if it privatizes all morality, then it marginalizes itself. Why would anyone take it seriously?

    “If polling data is any indication, support for gay marriage has been steadily increasing and skews young and educated.”

    That’s a classic misinterpretation of polling dating. Young people tend to move to the right as they age. So there’s no left-leaning trend.

    1. Brian says:

      @steve hays
      Don’t require things from Paul M.’s article that he did not suggest or write. The premise is sound. Very few but the most far-reaching theonomists would suggest that ALL Biblically defined sin should be criminalized by the state. It’s fair to ask the question — what sins should be prosecuted as crimes, and what should not. Or in the case of this discussion — what Biblically defined behaviors should be enshrined in law (a proactive law defining marriage) and what should not.

      He is not suggesting that no Biblical standards should inform our laws — he is simply saying we need to think carefully about that very question. But to suggest that his premise necessarily means he is “surrendering” on other issues is a blatant mischaracterization and simply unfair.

      Your tone and response is more ad hominem and straw men arguments than a meaningful interaction with his position.

      If you disagree, fine. But then explain why this particular issue IS something that is deserving of a law, and why it is not appropriate to separate the church/state functions — there are good arguments to be made defending that position. I don’t believe this is a simple question. But don’t present extreme examples that are exaggerations of the position presented as a way of emotionally charging your own position.

      1. steve hays says:

        Brian April 4, 2012 at 7:40 pm

        “Don’t require things from Paul M.’s article that he did not suggest or write.”

        You’re asserting that he didn’t suggest that. Where’s the argument?

        “The premise is sound. Very few but the most far-reaching theonomists would suggest that ALL Biblically defined sin should be criminalized by the state.”

        The premise is false inasmuch as the Bible itself doesn’t treat sins and crimes as conterminous.

        “It’s fair to ask the question — what sins should be prosecuted as crimes, and what should not. Or in the case of this discussion — what Biblically defined behaviors should be enshrined in law (a proactive law defining marriage) and what should not.”

        He didn’t merely ask a question. He went on the attack.

        “He is not suggesting that no Biblical standards should inform our laws — he is simply saying we need to think carefully about that very question. But to suggest that his premise necessarily means he is ‘surrendering’ on other issues is a blatant mischaracterization and simply unfair.”

        That’s just your defensive, emotional spin. That’s not something you’ve begun to demonstrate.

        “Your tone and response is more ad hominem and straw men arguments than a meaningful interaction with his position.”

        You have a tin-ear where your own tone is concerned.

        “If you disagree, fine. But then explain why this particular issue IS something that is deserving of a law, and why it is not appropriate to separate the church/state functions — there are good arguments to be made defending that position.”

        You begin by artificially bifurcating the issue, then demand special justification for exceptions. Marriage is a natural institution as well as a religious institution. Your compartmentalization is arbitrary.

        “I don’t believe this is a simple question. But don’t present extreme examples that are exaggerations of the position presented as a way of emotionally charging your own position.”

        You haven’t begun to show that my examples are “exaggerations.” And your hypersensitive reaction illustrates your emotional investment in the issue.

        The bottom-line is that Christians like Justin Taylor are resisting the godless corruption of law and gov’t. It would be bad enough of libertarians were simply do-nothings to sat out the great moral issues of our time. But it’s worse: they actively attack the good that Christians like Justin are attempting to do.

        If you can’t support a righteous cause, at least get out of the way and let others do so without your interference. Don’t stick your foot out to trip Justin.

  8. John says:

    I agree with DAC and Martin Luther on this one. Marriage is a public contract designed to protect the innocent – usually women and children – from being used and abused by no good scoundrel types. This contract must be enforced at some point – through wage garnishments, liens, and even arrests and imprisonment sometimes. This requires the force of state. The argument that the state can ever “get out” of the marriage business is not a well thought-out position. Changing the name to “civil contracts” or some such is a largely irrelevant exercise in word games.

    1. Dave Dacus says:

      John, if the government is needed to protect the innocent like women and children from the no good scoundrel types that are presumably more permissible without state-sanctioned marriages, then how are you to account for all the abuse of innocents that occurs in state-sanctioned marriages. Your position would lead to the disruption of personal and marital privacy absolutely because to prevent crimes against innocents that are hidden in the privacy of familial bedrooms, the government would need to install cameras those bedrooms. Your position can also be seen as reinforcing the power of the public school system to educate our children from cradle to grave, as to marginalize, or in some countries, criminalize homeschooling, so as to protect children from criminal parents. The privacy between a mother and her infant, or a father and his infant, is the same privacy one has to one’s own body. Only God has the authority to invade the privacy of one’s own body. If that authority is arrogated by the state, religious liberty is infringed, and the believer apostatizes.

      1. steve hays says:

        So you don’t believe in laws against domestic violence? Wife-battery? Child abuse? Anything that happens behind closed doors is sacrosanct? Kidnapping? Sex slaves?

        1. Dave Dacus says:

          Of course those acts should be criminal. I deplore such acts, but I’m just not okay with having a camera in my bedroom monitored by local law enforcement. Are you? My issue is with the means taken to prevent those crimes, not with the fact that they are crimes obviously.

          1. steve hays says:

            Except that you throw that out there as if that’s what keeping gov’t in the marriage biz logically entails.

      2. John says:

        Dave, I don’t actually understand your response, but I am willing to consider what you have to say if you can rephrase it. To be honest, what you wrote doesn’t have a logical connection to what I wrote. Why would you assume that protecting marriage partners entails cameras in the bedroom? We have marriage laws now to protect the innocent, and as far as I know no state has bedroom cameras installed.

        Have you considered the concept of abandonment and the burden that places upon society? Marriage laws split assets, intentionally creating economic risk designed to inhibit the socially stronger partner from abandoning his/her spouse, and creating a social safety net to keep (usually mothers and young children) from becoming prey. These laws require enforcement, enforcement requires force, and as long as we believe that the church should not have police powers, force requires the power of government.

  9. Dave Dacus says:

    In the post by John to which I was responding, the thing he brought in was these certain crimes that keeping gov’t in the marriage biz should prevent. It seemed to me to logically entail that these same crimes happen both within and outside of state-sanctioned marriages. If, therefore, the prevention of these crimes becomes paramount, then the state will eventually need to be involved in the most private affairs of the family. Does that follow, or am I off?

    1. Those crimes are actually far more common in cohabiting relationships (ie what you are calling “non-state sanctioned relationships”) than in marriages.

  10. Brian says:

    One thing that I’m surprised is rarely explored as it relates to gay marriage is the issue of polygamy.

    As a Christian, I believe God-defined marriage as between one man and one woman, and believe that was always God’s intent and his “definition” from the first institution of marriage in the garden.

    But I wouldn’t call polygamy non-marriage. Jacob had two wives. David had several. Solomon had tons. They distorted God’s intent, but I would still call it marriage. One could argue similarly from the matter of divorce — Jesus as much as says this was never God’s intent, the marital bond is permanent, and yet he acknowledges the existence (and sometimes necessity) of divorce.

    Which begs the question — should we view gay marriage in the similar way? God’s intent is distorted, but the substance is still there? If so, that may influence our view of the civil and legal matter vs. religious matter. God created laws governing polygamy — to protect the wives who might find themselves neglected. In essence, he established laws to regulate behavior that was contrary to his intent.

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Justin Taylor


Justin Taylor is senior vice president and publisher for books at Crossway and blogs at Between Two Worlds. You can follow him on Twitter.

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