As some of you may know, in celebration of the one year anniversary of Philosophy Sucks! I have been reposting some posts that I liked but that never got the attention they deserved. Well, this post was originally posted July 13th 2007, so it is not quite this day, but it is close and there seems to have been some confusion around here lately as to where this post was. So here it is.
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If one looks at the history of marriage one sees two distinct traditions. On the one hand we have a pre-Christian secular contract based tradition that is concerned most with legalities and on the other we have the religious spiritual union based tradition. Now in the debate about same-sex marriage that is currently taking place in our society we see some who are pushing for these two traditions to be separated. So, surprisingly, the majority of Americans seem to feel that same-sex marriage should be banned (a sad fact: Every ballot that same-sex marriage has appeared on results in a defeat at the polls). Yet, at the same time most seems also to feel that same-sex ‘civil unions’ are permissible. A civil union is a state recognized union that grants legal rights comparable to those obtained by marriage. It seems from this that the opposition is religiously generated, presumably by what the Old Testament says about homosexual relationships (never mind that these same people ignore all of the other stuff the Old Testament says, e.g. like stoning to death women on their period who don’t leave town). These people argue that marriage is a religious sacrament and so should be controlled by the Church.
Now of course people like me, who think that all persons should have equal rights regardless of race, intellegence, religion, sexual-orientation, height, eye color, political party, socio-economic class, or shoe size tend to think that the suggestion that straight people get to be married and homosexual people have to have civil unions denies a basic human right to people who happen to be homosexuals.
But there is another inequality in the proposed split between marriage and civil unions. That is that I, as a heterosexual, can only get married: Me and my girlfriend cannot get a civil union. I am not a religious person (I am agnostic) nor is my girlfriend. If I were to get married it would not be by a priest, nor would it take place at a church. In short mine would be a completely secular affair. Nor do I think that what I just described is so out of the ordinary.
So I say we should formally distinguish these two aspects. Let marriage be a religious institution and let civil unions be a secular institution. Let the church govern marriage and define it as between one man and one woman. And let the state govern civil unions and define it as they want; a loving commitment to partnership and family betweem two persons. That way religious people would get marriages and secular people would get civil unions.
Now I suspect that there will be those who are unsatisfied with this answer. They might insist that same-sex marriages should be allowed, that the Church ought to be forced to recognize same-sex marriage as legitimate. While I sympathize with this sentiment I think that it must be recognized that, for better or for worse, marriage has become partly a religious ceremony. It is in fact a sacrament of faith. So in so far as it is a religious instituion, and in so far as the Church has the right to run its instituions, the Church has a right to define marriage as it wants. Though there is an interesting question here. Could the Church define marriage as only between two people of the same race? Or of the same faith? If they could not then it seems arbitrary that they do get to stipulate ‘same sex’ and it does seems as though they couldn’t do the former. So maybe the Church can’t define marriage in any way that it wants.
Maybe if we press the above kinds of arguments and reason prevails then we will eventually see people with perfect equality in this respect and then every couple, regardless of orientation, will have the choice between the religious instituion of marriage and the secular instituion of civil union. But until then (don’t hold your breath!) by clearly seperating the two instituions and making civil unions available to all secular persons we can better focus on what the real issue is (i.e. one of the Church’s right to govern its instituions) and at the same time by raising the status of civil unions we address the worry that civil unions discriminate against homsosexuals; that it is somehow ‘marriage-lite’. It is not as though civil unions are ‘less than a marriage’ it is just that they are a secular rather than religious instituion. The fight with religion to recognize gay persons as deserving equality is another fight.
Richard Brown 
I’m inclined to agree with much of what you said, although whether you can get CUPed (Civil Unioned) depends on jurisdiction, many of our friends in New Zealand have opted to get CUPed rather than married both to express solidarity and to opt out of the religious aspects of marriage. However a major issue is that Civil Unions are not well recognised internationally, so they tend to not come with the same rights as marriage.
Richard,
Good post, I totally agree with you. Completely divorcing (ha-ha) the matter of civil union (contract) from marriage (sacrament) seems to be the best way of preserving the autonomy of both the state and the church.
Regarding previous comment: I suspect that, if civil unions were the only way the state recognized relationships and marriages were purely a religious matter, more countries would be inclined to recognize the rights of those who choose civil unions. The problem is that, right now, civil unions are merely a state-sanctioned but second-rate alternative to marriage.
Pam
Hi Pam and David thanks for the comment!
David, I think you are right as a matter of fact, but as Pam already pointed out, I am advocating something more drastic. I think the legal stuff should be entirely seperated from the religious stuff. That way all of the legal rights now associated with marriage would come to be associated solely with civil union. If two people wanted to also have a spiritual union of their immortal souls sanctioned in the eyes of God, then that is what marriage would be for.
Indeed, and I am inclined to agree why not separate the legal from the religious. New Zealand again has taken a novel approach to this, effectively if you are living with someone for two years in a relationship that is effectively the ‘state of marriage’ religiously or state sanctioned or not, you automatically get all the rights and obligations of being married to that person. Might be a third option to consider, based on the nature of the relationship, rather than either a religious or legal ceremony…
What do you think?
Hmmm…New Zealand sounds very progressive! This is yet another reason to want to go there!!! 🙂
Is that something like what we call ‘common law marriage’ here in the States? (Except, of course, with more legal rights)
Yes I expect it is fairly similar to ‘common law marriage’ but with an additional helping of rights.
Yep, for me its an additional reason to want to go back. 😀
Of course there were some complaints when the law was brought in since some people who were in long term non-married partnerships weren’t getting married precisely because they didn’t want those rights and obligations… I gather there is now the non-married equivalent of a pre-nup.
I completely agree with you. As a veteran, I believe in the equality of all people in the United States, regardless of who you are. However as a devout Mormon, I don’t believe that the Government should regulate religious marriage. I think that forming a governmental civil union (with all the rights afforded now to marriages) would be the most constitutional and appealing policy for all parties. Let the government set the bounds on who gets governmental benefits. Let the induvidual religions set the bounds for who gets religious benefits. If a religiously married couple wants to be recognized by the government, they should have to complete the appropriate paperwork or ceremony for a civil union, and vise versa.
Hi Nicholas, thanks for the comment and the support!!
To me marriage is not a religious issue. Maybe thats a result of being from NZ.
but it is by definition between a male and a female. I don’t like the idea of running around effectively redefining words for political purposes because that makes it hard to have a reasonable discourse even if that definition was created by religion.
Better to just assert civil unions to carry all the legal rights (as RB originally suggested)
But to go even further… I think the state should also remove most of those advantages because it isn’t clear why married people should have significant advantages over non married people (as it happens in NZ in my experience being married has significant financial disadvantages).
if there is an incentive that is required it can be designed specifically to achieve the aim in which case we don’t even need to think about marriage and discrimination or even civil unions per se. I suspect most of the advantages that being married confer around the world are just the results of lobby groups arguing for them rather than actual attempts at achieving the best for society or for children.
Hey GNZ, I forgot to reply to you. But I pretty much agree so that’ll be easy: I pretty much agree. NZ sounds like a cool place!
Your suggestions make so much sense, I wish I’d thought of them. I especially like the idea that priests should be stripped of their right to perform legal ceremonies.
The only part I’m unsure about is your characterization of civil union as “a loving commitment to partnership and family betweem two persons”. Why not just define it as an economic contract which allows two people to collectively own property and qualify for certain tax exemptions, citizenship benefits, etc.? Shouldn’t the requirement of love be a matter of personal choice just like religious affiliation? Should the government care whether two people are marrying out of true love?
My only issue here is that, once love gets removed from the equation, polygamous unions don’t strike me as all that offensive. Likewise with incestuous civil unions. I can think of plenty of circumstances in which, e.g., my brother and I could stand to benefit economically from entering into a civil union.
Don’t get me wrong: I don’t have a problem with any of this to be honest. But I think many people would find it very unsettling for some reason.
Hi Daniel,
Thanks!
You raise a good point, I actually just wrote something on polygamy and incest.
But to answer your question I think that the reason the state has an interest in this issue is because the state has an interest in children. The state also sees itself as having this interest. So it seems to me reasonable to include the ‘loving commitment to partnership and family’ clause. There are already legal relationships that you can enter in with your brother that will give you the rights you are interested in (incoperation for example). A civil union is the states secular non-religious way of investing in its interest in healthy well adjusted future citizens.
Richard, I see two problems with your explanation. Assume that you’re right, and that the State’s interest in civil union is related to child-rearing. The first problem is that we can’t state this interest too strongly, as we don’t want to rule out civil unions between couples who are unable to produce children of their own. This includes homosexual couples, but also heterosexual couples involving at least one person known to be infertile. I think it’s safe to say that this would be offensive to many people’s intuitions: even those against gay marriage for whatever reason presumably have no problem with infertile men and women marrying.
The obvious solution to this problem is to restrict the government’s interest in child-rearing to the part of the child-rearing process that does not involve the initial production of the child (excuse my alienating vocabulary, I can’t think of a better word than “production”). Call this post-birth part of child-rearing “child-raising”.
But this is where the second problem comes up. All of your arguments against incestuous child-rearing are dependent on the idea that sex and/or child production between incestuous partners is immoral. I’ll grant that, but then the part of marriage that the government is interested in can’t be that part anyway, according to the solution to the first problem.
To see what I mean more exactly, consider two pairs of men. Pair A consists of two brothers. Pair B is two men who are genetically unrelated enough to not be considered an incestuous couple. Neither pair is capable of producing children, so the issue of trying to prevent them from doing so is a moot point. Perhaps there should be a law against Pair A having sex, but no similar law for Pair B. But I don’t think we want to say that there is something incoherent about a civil union between two people who don’t have sex, or that the State’s interest in civil union has anything to do with sex (remember the first problem and change infertility to impotence). On the other hand, I can’t think of a convincing reason to think that either of Pair A or Pair B would be any better or worse at child-raising than the other.
My point is that even if marriage has something to do with child-rearing in the eyes of the State, this shouldn’t have any consequences, by itself for differentiating between incestuous and other civil unions.
I might also add that I would like to see an argument (or preferably, some empirical data) showing that groups of people in polygamous civil unions would be inferior to those in monogamous civil unions when it comes to child-raising.
Finally, I’ll say that I don’t have very strong opinions about how we define civil union, and I am not trying to advance some kind of agenda here (I don’t even know what it would be if I were). I just think your explanation of civil union is incoherent and I would like a better one.
“The first problem is that we can’t state this interest too strongly, as we don’t want to rule out civil unions between couples who are unable to produce children of their own.”
There is no problem here. Saying that the state has an interest in future citizens, which is clearly true, does not imply that every marriage or civil union MUST result in child birth, which is clearly false. The point is that this is the usual or typical result and one which the state has an interest in.
As for the second point, I think you have slightly changed the point. Originally you said that incesteous unions would be legally advantageous (you offered the example of you and your brother wanting to own land together) now you are talking about two brothers who want to raise a child together as a couple. You say there might be cases where we would allow this latter possibility and you offer it as evidence against the former possibility. But this doesn’t present a problem for my view. I can agree (in principle) that your envisegned scenerio might arise (though I am not so sure because I do not know what rights a civil union would give you vis a vis the child that adoption and the sibling relationship wouldn’t already give you) but that doesn’t mean that any old brother-brother (or brother-sister) pair could get unionized.