The temptation after New York passed its same-sex marriage law is to “get government out of the marriage business.” It's not that simple.
As I indicate in my Worldmag.com column this week, "What to do with Marriage Now," a very helpful study by the Council on Family Law, “The Future of Family Law: Law and the Marriage Crisis in North America,” points out difficulties with this initially attractive “separationist” approach. Here is the entire section of that report that pertains to the question at hand. You will need to consult the report itself for the footnotes.
The Third Direction: Disestablishment, or the Separation of Marriage and State
How might we avoid contentious public disputes about the meaning of marriage? One possible solution is to conclude that the law should no longer establish any definition of marriage. Only a few years ago, almost no one favored this idea. But today this option appears to be gaining converts across the political spectrum. Disestablishment is thus a third possible direction for the future of marriage.
On the left, “queer theorists” such as Michael Warner adopt a radical liberationist argument for disestablishment. Warner argues that the extension of marriage to gays and lesbians is no less than an attempt to herd all human sexuality into the narrow conjugal box. Others support disestablishment because they feel that marriage is essentially a religious institution, something in which a secularized liberal state should have no role. One proponent of this view, Nancy Cott, argues that Christian models of conjugal monogamy have been legally imposed on social life. Another author similarly characterizes the “permanent, monogamous, marriage, nuclear, heterosexual” concept of family as “an explicitly Christian concept of marriage.” In this view, the heterosexual definition of marriage legally imposes a particular theological or religious vision of marriage on society, one that violates the convictions of sexual dissenters and nonconformists. Cott and others feel that the separation of church and state requires ridding the law of any theological vision of marriage.
However, redefining marriage provides no easy solution to the dilemma of state endorsement of some religious view. Religious groups can be found that endorse same-sex marriage, polygamy, monogamy, and even polyamory. In choosing any substantive vision of marriage, therefore, the state will end up endorsing some religion’s marital vision.
Faced with competing and conflicting conceptions of marriage, proponents of disestablishment argue that the state should take this breakdown of social consensus as the cue for it to get out of the marriage business. They argue that the liberal state learned how to adopt a stance of measured distance towards religion and the economy. It must now adopt a stance of measured distance towards marriage. Civil matters related to interdependent relationships (taxation, inheritance, community property, and more) could be handled by a more neutral registry system.
The removal of marriage as a legal category was one option put forward by the Canadian court decisions striking down the existing law of marriage. It was also proposed as an option by the Department of Justice in its directives to Canada’s Standing Committee on Justice and Human Rights in hearings on the question of same-sex marriage. The disestablishment of marriage would be achieved by “removing all federal references to marriage and replacing them by a neutral registry system.”
In the Beyond Conjugality report, the Law Commission of Canada considers Nancy Cott’s argument for disestablishment:
Borrowing the term from the history of church and state, Nancy Cott has described the transformation in the relationship between marriage and the state in the United States as “disestablishment.” Just as the state does not recognize a single, officially established church, no longer is any single, official model of adult intimate relationship supported and enforced by the state.
Instead, the law would embrace virtually all interdependent relationships. Indications of a marital, conjugal relationship — such as sexual intimacy, cohabitation, the dyadic restriction (only two people can get married), and even restrictions based on consanguinity — would be removed from law. This approach is grounded in the conviction that democratic societies have a fundamental obligation to “respect and promote equality between different kinds of relationships,” to celebrate “the diversity of personal adult relationships,” and to honor “the freedom to choose whether and with whom to form close personal relationships.” The new family law would be in essence a universal buddy system that offers legal protections for all citizens, whether straight or gay, parents or not, and whether they are involved with only one person, or many.
Yet once family law becomes a universal buddy system, some have reasonably asked why the law should be concerned at all about who is having sex with whom. That the law traditionally has an interest in sexual activity largely because children often arise — intentionally or not — from heterosexual couplings seems currently to escape the attention of many scholars and, indeed, an increasing number of judges. Rather, they conclude that the legal preoccupation with sexual intimacy is arbitrary and pointless. One study on the legal “irrelevancy” of sex approvingly cites Eric Lowther, a member of the Canadian Parliament, who said the following when speaking in opposition to the extension of benefits to same-sex couples:
There are many types of gender relationships: siblings, friends, roommates, partners, et cetera. However, the only relationship the government wants to include is when two people of the same gender are involved in private sexual activity, or what is more commonly known as homosexuality. No sex and no benefits is the government’s approach to this bill. Even if everything else is the same, even if there is a long time cohabitation and dependency, if there is no sex there are no benefits. Bill C-23 is a benefits-for-sex bill. It is crazy.
Lowther favors the existing definition of marriage as a heterosexual bond. His critics are advocates of same-sex marriage. Yet both agree that there is a fundamental flaw in the current legal construction of conjugality. According to them,
…the question of whether a relationship has a sexual component bears no connection to legitimate state objectives. Once this is recognized, and sex is removed from the scope of relational inquiries, the distinction between conjugal and non-conjugal relationships collapses. And we then need to develop better ways to determine when and how the existence of an adult personal relationship is relevant and should be recognized in law.
The fundamental argument of the Law Commission of Canada in Beyond Conjugality is the same. The report argues for a broad legislative approach to all adult close relationships that involve significant mutual dependence. The presence or absence of sexual conduct in the relationship is considered incidental. The fact that some kinds of sex acts produce children and some do not merits no consideration.
As mentioned earlier, Beyond Conjugality does end somewhat confusingly with a call for the redefinition of marriage, even after making a strong case for disestablishment. However, the original thrust of the report, found in its title, was to lay out a new legal framework which would eliminate the category of conjugality from law and replace it with a more inclusive civil registry system. In such a system, marriage as we have known it — marriage as a social institution — would likely still play a role for some time to come. But in the eyes of the law, that role will be a bit part, written in very small print and destined eventually to wither away.
In Canada this classical liberal argument for disestablishment has been drowned out by a newer and more aggressive social liberalism arguing for a redefinition of marriage. But it was one of Canada’s historical Liberal leaders, Pierre Elliot Trudeau, who laid down the principle that the state must get out of the bedrooms of the nation. Some liberals argue that disestablishment is the only viable alternative in the face of apparently irresolvable legal and political disagreements about the authoritative meaning of conjugality.
On the right-leaning end of the spectrum, certain religious constituencies are also questioning whether disestablishment might be preferable to a full-fledged legal redefinition of marriage. They point out that the political regulation of marriage was a relatively late development in the history of Western marriage. For some, the state has done more harm than good in its attempts to influence the direction of the marriage culture. Perhaps it’s time to get the state out of the marriage business. They hope that, just as the separation of religion and state is responsible for the relatively flourishing religious sector in the United States, getting the government out of marriage would be a prelude to a marriage revival. They argue that marriage, like religion, can only really flourish when it is freed from political control and manipulation.
But it is clear that there is nothing “neutral” about the state refusing to recognize and accommodate the fact of marriage in law. In places like the United States, where marriage remains a significant legal category, its disestablishment would take an enormous amount of political and cultural energy of the kind that is unlikely to feed a flourishing marriage culture. More likely the disestablishment of marriage would support a troubling and already all too common perception that marriage may be a nice ceremony but is no longer a key social institution.
Ironically, the consequence of disestablishment is not likely to be greater individual freedom, but rather more intense and far-reaching state regulation of formerly private relations. Married people generally regulate their family affairs without direct government interference, except in cases of criminality or violence. By comparison, the state routinely tells divorced and unmarried parents when they can see their kids and how much child support to pay, and often intervenes in thorny disagreements such as what school the child will attend, or what religion he or she will be raised in, or if a parent is allowed to relocate. Outside of marriage, the state is necessarily drawn into greater and more intrusive regulation of family life. Because sex between men and women continues to produce children, and because women raising children alone are economically and socially disadvantaged, governments will continually wrestle with expensive and intrusive efforts to protect children born outside of marital unions.
Finally, the right’s disestablishment argument presumes that the state has no key interest in the existence of marriage. While marriage is partly a religious institution for religious people, it has never been only a religious act. In the Western tradition marriage has represented the best efforts of state and society to integrate disparate goods — love, money, mutual support, sex, children — in the service of helping men and women raise the next generation in circumstances most likely to sustain them, their children, and the society.
The huge and complex slice of human experience constituted by heterosexual bonding, procreativity, and parent-child connectedness sweeps across non-religious as well as religious spheres of social activity and meaning. In a real sense, marriage is bigger and more elemental to human life than religion. Marriage in every known society has been deeply influenced and colored by religious traditions in the societies in which it has taken root. But marriage is even older than some of our oldest religious traditions. It existed before Judaism and well before Christianity and Islam. Marriage is influenced by religion, but it is not solely a religious institution, and it is certainly not solely a Christian institution. Religious traditions and civil society have critical roles to play in shaping a marriage culture; but in a large, complex society, government and the law will ignore marriage at their peril.
Some disestablishment proponents also seem to assume that children can be treated as a category separate from adult relationships. Martha Fineman, for instance, argues that the law should get out of adult relationships and leave them to private contracts. She believes that this move would allow the law and public policy to focus its attention on adult-child caregiving relationships. However, this seemingly logical deconstruction is but a symptom of the family fragmentation that has a deeply negative impact on children. Disestablishment might work well in a world of freestanding adult relationships. But the bedrooms of the nation still produce children. The offspring of our sexual bonds are profoundly vulnerable and demand the state’s interest.
Another helpful report by the same group is Marriage and the Law: A Statement of Principles.