Thursday, May 30, 2013

Marriage, Civil Contracts, and Equality

      I am tired of the discussion about marriage “equality” so I have a proposal to make. I almost called this post, “A Modest Proposal,” but I am serious about this, so I didn’t.
I think that the church needs to get out of the marriage contract business and get back into the marriage covenant business.  Why do I say that we are in the marriage contract business?  It has occurred to me over the years that all that grand ceremony that we go through really doesn’t mean anything legally.  All that matters is that I sign the marriage license.  That’s what makes the marriage legal. And, really, anyone can sign that license these days.  All you need is an online ordination and you are good to go.  And, of course, a judge, JP, etc. can sign and perform the ceremony. So the whole religious connection is really not even necessary.
     Therefore, I think we should formally separate the religious ceremony from the legal contract.  Tony Campolo has suggested something of this sort, but I don’t think he has gone quite far enough.  (  I propose that we go full tilt toward equality.  Let’s allow any combination of adults to make a Civil Union as a contract that gives them what we now think of as marriage privileges.  However, these conditions should apply: 

      Everyone will be required to have a written contract (what we call now a “pre-nuptial” agreement) which will specify
o   The financial arrangements between the parties
o   Rights of survivorship for property
o   Who makes decisions in terms of medical and end of life issues should they arise
o   Rules about sexual intercourse that answer the following questions
      •   Whether or not sexual activity is desired, required, expected, etc. 
      •  Does refusal to engage in sexual activity constitute grounds for breaking the contract? 
      •   Are sexual partners outside of the contracted parties allowed (what we used to call adultery)? 
      •  If outside partners are acceptable, will regular testing for HIV and other sexually transmitted diseases be required?
o   All issues surrounding children should be spelled out
      • Which of the parties involved will be biologically related to the children?
      • Will surrogates be used if all the parties are men, sperm bank if all the parties are women?
      • Do all the parties involved want to take responsibility for all the children?
      • If one of the parties changes his/her mind about children (to have or not to have) will that constitute grounds for ending the relationship and breaking the contract?
      • When “divorces” occur who will take the children, who will be responsible for them financially, etc.
·     Everyone -- man and woman, man and man, woman and woman, one man and several women, one woman and several men, whatever combination – will have to go before a government official (JP, judge, etc.) for a legal union to be made.

·    After the legal union has been made, the parties could go to a religious representative and have a “wedding” if their religious tradition accepts their particular kind of union.  However, this would not be necessary. Really any kind of ceremony or celebration could be held.

Does it sound like I am proposing that we legalize same-sex unions, polygamy, polyamory, etc.? Yep.  Why not? If we are going to legalize same-sex unions, there really is no good reason for not legalizing any type of union.  But we need to recognize that the assumptions that come with marriage can no longer be made in unions that are not between one man and one woman.  Those assumptions have been in play a long time and we take them for granted (sort of what one does with assumptions). But really, we should not take them for granted, especially when it comes to the fate of children.  Since we are not going to use religious arguments for keeping unions between one man and one woman, the arguments about monogamy, faithfulness, etc. are not really valid either, at least legally. There are no legal reasons that I can see why we shouldn’t have unions of all types, including what might be called “starter” or “temporary” unions that are for a limited amount of time.

Now, you might think I am a raving liberal, and if you know me you might think I have gone off the deep end and totally changed my whole point of view.  Think again. My theological understanding of marriage has not changed. (For what I think about “biblical marriage” see upcoming post.) I think a “marriage” is between one man and one woman. I still believe that sexual intercourse is a wonderful gift from God that enables a man and woman to express the most intimate love. Therefore I believe that sexual intercourse is only appropriate between a man and woman who are married.  I have no intention of performing a marriage ceremony for anyone but one man and one woman.  I will continue to require premarital counseling for those whose ceremonies I perform.
You see, I want the church to reclaim marriage as a covenant, maybe even as sacramental. Under the system I propose, we would not perform a wedding to celebrate a covenant marriage unless the legalities were already observed.  But I want to separate the legal contract from the religious covenant.  I am tired of being an agent of the state. And I am tired of the fight over “marriage equality.”  I don’t want to call the legal contract “marriage,” and I don’t want the covenant to be all that is required legally. The Roman Catholic Church has been distinguishing between a church marriage and a civil one for years; I am suggesting we take that a step further and do that for all religious traditions.  So those “Sister Wives” can be legal for all I care.
Do I think all of this is a good idea for society?  Well, no.  But I think this is the way we are headed, whether I like it or not. We might as well get there faster (and see the consequences faster).  And if we are headed this direction, then I don’t want to be forced to go against my conscience in performing marriage ceremonies.  I also understand, whether we admit it or not, that unions between anyone other than a man and a woman have different rules, especially when it comes to children.  Only one of the partners at most can be biologically related to any children they have, and the relationship between 2 men and a child and between 2 women and a child is different (if it isn’t obvious, this is because a woman can carry a child in her womb).  We have legal requirements for adoption, because the connection between the parents and child is not based on biology (though we strive to make it mimic biology). So it only stands to reason that we need to develop legal requirements for how children are treated in all unions.

I can hear the screams – from both sides of the debate. If you comment, please be respectful.


  1. Thank you, Martha. Tough tuff, here. I think one contributory step would be for us to analyze the category(ies) of language we use in the marriage debates. Are the terms mostly legal and political? What moral questions arise that should be discussed? What theological questions arise that should be discussed? Of course, the church has to take into account all these categories, but we should at least know what we're talking about when we're talking. Whether the issue is sexuality or something else, the church should watch its language.

  2. I agree, Steve. We definitely need to watch our language and be clear and careful about our definitions. I think what I am aiming for is to separate the legal from the theological language. That is why I propose the everyone have a "Civil Union" in terms of the state. That would be everyone's legal status; "marriage" would not have a legal status.

    The theological status would have to be worked out by individual religious traditions. This is not ideal, and, in reality, I know this won't happen, but I know that the way we are going is confusing. We no longer have a theology of marriage, if we ever did. Until we work on that one, we won't really know who we should bless or why.

    Thanks for the comment!

  3. Actually, Martha, I totally agree with you and have been where you are now for years.

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