Not Easy to Disentangle the Legal and Value Aspects of Marriage — But it is Important!

A recent Washington Post article by Lisa Miller discusses the separation of church and state in marriage. Miller concludes that the ways in which state-enforced contracts have been incorporated into the ritual of marriage makes it infeasible to separate the two. She has a point, not only have an array of legal property rights, alimony, and child support precedents evolved, but many governmental and business benefit programs have also. Firms routinely extend health benefits, for example, to employee families (an artifact of WWII tax law).

Miller comments on the stance of Tony Jones, an evangelical minister in Minneapolis, who refuses to sign marriage certificates as long as his state refuses to recognize same-sex marriages. Surprisingly, that position places him in the same camp as many traditional religious leaders who will only endorse marriage of heterosexual couples and refuse to perform nuptials for same-sex couples. States that have moved to recognize same sex marriage have generally respected that reservation — despite the separation of church and state doctrine.

But is Miller right? Is it really that difficult to separate the affirmative nature of marriage — the honor and respect given that union by the respective community — and the legal/contractual obligations of the joined parties to each partner and any children they may have? Isn’t this very entanglement evidence that the intrusion of government into value issues has gone too far and merits disentangling? After all, America is a highly legalistic society, with many complex contracts between parties. Couldn’t a standard form civil contract be introduced which would convey the obligations now granted via the marriage license? The federal government could elect to grant social security and other benefits on that basis; firms could elect to follow suit, design their own equivalent contract if they desired, or simply continue to recognize only traditional marriages.

In any case, the present situation is unstable. Many individuals are currently forced to live in states affirming values with which they disagree, creating unnecessary turmoil in our political system. Indeed, the whole mixing of the affirmation aspects of marriage with the tolerance aspects of marriage is creating conflict (many have attended heterosexual marriages of individuals whose wisdom they may well have questioned).

Were marriage clearly separated from the state, the value aspect of vows would be guarded by the voluntary, private sphere, with contracts (traditional as well as modern additions such as pre-nuptial agreements) being controlled civilly. With that rearrangement, citizens would be forced to recognize that a free society must be tolerant. To demand that the state affirm any value or marriage is to politicize what should be private matters.

Voltaire recognized the need to privatize value disputes long ago in his Letters from England. He noted that Spain, with one religion, had slipped into totalitarianism; France had two and experienced civil war; while England, with a plurality of religions — all tolerated by the state, lived in peace. The conclusion seems obvious. Thus, while Miller is right, separating church and state in this area as in others may be difficult, the game is worth the candle.