Wednesday, November 11, 2009

A Tale of Two 'Marriages'

By Bob Hockett

Martha Nussbaum gave an interesting talk at Cornell this past Friday on the subject of same-sex marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' (This was the endowed Stevens Lecture, named for the same distinguished former Dean for whom Mike’s professorship is named.) The talk afforded a nice opportunity to raise a question that often has struck me, and that might be worth raising here too.

Begin with this observation: Much of the rancor that surrounds present-day argumentation and politicking over same-sex marriage looks as though it might be traceable to a tendency, when speaking informally about marriage, to run together two distinct categories. I’ll call these ‘civil’ marriage on the one hand, and ‘sacramental’ marriage on the other.

In ordinary parlance, I think we tend to have both categories vaguely and simultaneously in mind when we use the word ‘marriage.’ But in a pluralistic polity where church and state both are and must be kept formally distinct, the conflation gives rise to needless conundrums and avoidable ‘culture wars’ disputation – disputation that might be avoidable only by keeping the two senses of ‘marriage’ just as distinct.

Now, what are these two senses of the word? I think they are these:

So far as state functions are concerned, 'marriage' seems to have only a very thin meaning. It seems to mean, more or less, 'civil union.' That is presumably part of why we often employ the terms ‘civil union,’ ‘civil marriage,’ ‘civil wedding,’ and cognates almost interchangeably when speaking of marriage under the aspect of state functions. And most such talk about civil marriage, for its part, understandably treats the phenomenon in question as a matter of the benefits conferred upon society by the prevalence of committed relations and stable households, and of the state's accordingly having reason to facilitate or at any rate not hinder the formation of such relations and households. Against this quite minimal backdrop, it’s hard to see what objection anyone could have to consenting adults’ deciding their partners-in-union for themselves, without interference from others purporting to ‘defend’ marriage.

Within most if not all of our nation's many religious traditions, on the other hand, 'marriage' of course carries a thicker set of meanings – meanings that typically reach back into religious and ethnic history, and even today often attempt to reach well beyond here and now. The fact that marriage in fact is a full-blown sacrament within some traditions is illustrative of how fraught with transcendent importance, hence how 'rich' in cultural and even ‘metaphysical’ meaning, what I am calling sacramental marriage as distinguished from civil union tends to be.

Now the more I reflect on these differences, the more I find myself wondering why it is that the same word – ‘marriage’ – is used for the civil and the sacramental cases alike. Is it perhaps simply a holdover from earlier, less pluralist times, when church and state, though formally distinct, were pragmatically speaking a bit less so? Or does it perhaps reflect some ‘deep’ truth in the ‘communitarian’ case against liberal ‘compartmentalization’? (I hope not! But more of that momentarily.)

Then when I further reflect upon how running these apparently formally distinct categories together might also underlie much of the distasteful 'culture war' lather that always foams up around 'the debate over same sex marriage,' I find myself wondering as well whether it wouldn't be salutary simply to purge the word ‘marriage’ itself, as distinguished from ‘civil union,’ from state offices altogether.

Why not, in other words, treat marriage in its civil aspect as some economists and ‘advanced bus orgs’ profs do – as a sort of ‘business organization,’ vide ‘domestic partnership’ – and reserve the concept (and word) in its sacramental aspect to synagogue, church, mosque, or functionally equivalent sacramental office?  In such case we would assign the proverbial 'justice of the peace' the task of conferring official recognition upon civil unions alone – when certain criteria that speak to matters of legitimate state concern are met, of course. And we would reserve the function of ‘marrying’ people to the synagogue, church, mosque or equivalent, of which there are more and more wondrous varieties each year, and which all have criteria of their own.

I should perhaps add that I am not here actually advocating these things, so much as wondering about and ‘Gedankenexperimenting’ with them. I am wondering whether such changes would be feasible, and whether they would be desirable if so.

One objection I can imagine would be that matters of political life on the one hand, and of culture on the other, are not as readily disentangled in our lives and self-conceptions as what I envisage here would require. A related objection might be that we – on some relevant understanding of who the 'we' here are – would not want to work such a separation even if we could, in that it would force a sort of multiple schizophrenia or 'compartmentalization' upon us that just wouldn't be good for our mental health or our persons. These would be ‘communitarian’-style objections, I suppose, and I suspect they would mainly come from the right (though of course they might come from the left or the center as well).

A third objection I can imagine might be thought communitarian-reminiscent, but would perhaps be more apt to come unambiguously from the center or left. It would be that if the change I am contemplating came in apparent response to attempted ‘Defense of Marriage Act’-type manouevering, its social meaning would be tainted with a whiff of recognition-denial effectively vindicating contempt. (Dr. Nussbaum brought a related point out nicely in response to my question after her lecture.) Just when a long-subordinated group is poised to gain some public recognition of the dignity of unions formed within it, the objection would run, this proposal would allow the taking of it away from them through a taking of it from all – a sort of cutting off of the nose to spite the face.

I am of course sympathetic to these possible objections, especially the third. But because so much of modern life, especially in a pluralist polity, involves so much 'compartmentalization' already, it isn't altogether clear to me that simply disaggregating currently muddled 'marriage' into state domestic partnership and ecclesial marriage components reserved to their respective spheres would appreciably increase the degree to which we already fall short of 'seamlessness' in our 'modern' lives. It also seems to me that we could easily enough take measures to make clear that the disaggregation is meant to afford long-overdue and now unavoidable recognition to church/state separation in the realm of domestic relations, rather than to afford state sanction to bigotry. But again these thoughts are tentative.

Perhaps I can make these points less abstractly by reference to a respectful email message I recently received from someone I do not know. He charged me with holding a ‘watered down’ conception of civil marriage, and went on to write:
Civil marriage is an institution derived from the complementarity of the sexes that exists when one man and one woman commit themselves, before the community, to each other and the possibility of children. Because the institution is rooted in the community and serves as the basis of the family, it is an essential component of the common good. The State has legitimate, indeed compelling, interests in ensuring a stable legal and societal framework for the creation of healthy families, providing a suitable environment for the development of children and in promoting social investment in the community.
Here are my tentative reactions:

On the one hand, the points are well taken, at least in relation to where American society seems largely (though as I’ll observe in a moment far from universally) to have stood in times not all that distant. It feels so familiar, and even comforting, to read these words; for they seem to close a breach that we generally experience as members of cultural or religious groups on the one hand, and citizens of a vast, polyphonic and secular polity on another.

But one riposte I am tempted to make is that as a political society the U.S. simply no longer has (assuming it ever had) that form of ‘unity’ upon which is predicated any ‘community’ that can reasonably be expected to share a thick, non-watered-down conception of civil marriage, and it is hard to see how we might make things otherwise without subordinating fellow citizens and ignoring our own constitutional values. The man/woman complementarity and possibility-of-children understandings, for example, might be thought by some to exclude marriage between people too old to bear children, while permitting committed polygamy of the Biblical variety. Yet U.S. law seems never to have been less than friendly to marriage between people with no intention of bearing children, while also being markedly hostile to Biblical-style polygamy. (As Sally Gordon, who spoke here recently in connection with Steve Shiffrin’s new book about which Mike has here written, has very well documented.)

I remain a bit less than certain, then, that civil marriage in the U.S. ever has been other than either watered down or expressive of the sacramental conceptions of some (principally mainline Protestant) religious traditions, at the frequent expense of other, quite venerable religious and philosophic traditions. And so it’s not clear to me that it wouldn’t be both politically preferable, and truer to our constitutional values, simply to recognize that as a civil category marriage is no legitimately thicker, values-wise, than domestic partnership, while all additional thickness that marriage bears is supplied by the married parties themselves and the ethical, religious, or cultural meanings they elect to invoke.

It might just be that a contemporary, more even-handed American society that’s true to its constitution would be more aptly characterized less as a ‘community’ than as a sort of confederation of communities (a Rawlsian ‘union of social unions’?), each of which is founded upon an ecclesial or other ethical subculture which speaks to those matters of heart, mind and spirit that are often – but not exclusively – the province of our religious traditions. In such case that which would unite our multiple communities would be a shared core of values of mutual respect, with which values many differing views of sacramental marriage, but only a fairly thin view of civil union, might be consistent. We could ritualize civil events in a manner reflective of the august dignity of our polity of equals, perhaps along lines suggested by Rousseau in his advocacy of a sort of ‘civil religion.’ But this would have to be a liturgical rather than doctrinal ‘religion.’

On that Rousseauvian note, let me close with an anecdote, from which the title of this post derives. The anecdote for its part derives in a sense from a sequence of historical events inspired in part by Rousseau, and narrated in the Dickens novel on whose title I’m riffing with the title of this post: the French Revolution, which serves as backdrop to Dickens’s Tale of Two Cities.

By a strange quirk of fate, I’ve been in attendance at a large number of weddings in France. And as many of our readers will know, French weddings since monarchy’s end typically come in two parts: First there is a civil ceremony, where a minister of state wearing a business suit and an impressive red sash unites the couple for purposes of the state. Here’s a clip from a favorite film that affords some indication of the setting for a civil ceremony:

Then there is an ecclesial ceremony, where a minister (or ministers) of synagogue, church, mosque or what-have-you perform(s) the appointed ecclesial rites.

Now as it happens, one of the French weddings I have attended was for ecclesial purposes (sort of) an ‘interfaith’ wedding between one of my two oldest and closest friends, who is American and secularly Jewish, and his fiancee, who is French and more or less secularly Catholic. (Do not let it be thought that I hold any attitude about their being secular. The fact is relevant only to what I shall presently relate of the ecclesial ceremony, and I am quite certain, in case it’s of interest, that my wonderful friends stand much greater chance of entry into any next world than I do.)

Now the ecclesial wedding ceremony for my friends, at which I read, was a somewhat awkward affair in the sort of embarrassed half-heartedness with which Rabbi, Priest, bride, groom, and most of their families recited the appointed texts. Not even the great antiquity of the impressive cathedral quite managed to dissipate the feeling of ‘dry ritual’ that pervaded the affair. I found myself almost wishing my friends had composed their own ritual, as many other friends of mine have done with great care and beauty.

My friends’ civil ceremony, on the other hand, seemed much more dignified than the ecclesial, if for no other reason than that there was no ‘just going through the motions’ involved. (And the sash was very impressive!) For these two close friends of mine, it was their deep personal commitment, and the French state’s constitutionalization of equal respect for persons irrespective of ecclesial affiliation or background, that mattered most. And the civil ceremony, though not associated with any thick conception of marriage as distinguished from civil union, was accordingly rich and liturgically meaningful in its own right – much more so in this case, I thought, than the ecclesial ceremony, which felt simply vestigial. Moreover, had my friends both been women, or both men, it would have been identically dignified – as would any ecclesial ceremony, I reckon, in a faith tradition that recognized same-sex unions.

Intriguingly, my other oldest best friend, who also is American and (Reform) Jewish but is practicing, also took part in an interfaith wedding – just this past summer, with his practicing Episcopalian fiancee. This wedding was officiated jointly by my friend's Israeli Rabbi and his fiancee's mother, who is an Episcopal priest.

The earnestness with which all parties in this case approached their appointed tasks, and the eagerly, even anxiously helpful efforts each officiant made to explain the meanings and histories and traditions of all liturgical elements contributed by each to this beautifully thought-out, ‘custom made’ yet tradition-redolent ceremony, were profoundly moving. Godliness seemed to be present at this beautiful wedding with a fullness I've rarely experienced. The civil ceremony, by contrast, was altogether bureaucratic.

And there, perhaps, you have in a nutshell the difference between paired church/state marriage ceremonies in pluralistic America on the one hand, and once monistic France on the other! Why not combine the best of both by according august but minimalist meaning to the civil unions available to all citizens, and recognizing privately adopted, synthesized, or even fresh-formulated meanings assigned by the parties themselves to more sacramental marriages?


Michael C. Dorf said...

Nicely put. Here is a related thought.

Justice O'Connor has said of ceremonial invocations of God in government-run public events, that such Divine references "serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society." (She said that in 1984 in Lynch v. Donnelly and she repeated the point in the 2004 Pledge of Allegiance case, Elk Grove Unified School Dist. v. Newdow.)

I understand the French experience to challenge the claim that invocations of God are the ONLY way to solemnize secular occasions. Now it could be said that the French are somehow different from us in this respect, pointing perhaps to the anti-clerical spirit of the French Revolution. But I think that argument won't wash. With respect to the role of religion in public life, France and the U.S. are cut from the same 1789 cloth. It's true that we have no direct parallel to the French principle of laicite, but that's more a legal point than a cultural one.

There are, in fact, numerous non-religious means of solemnizing secular occasions in our own culture: Moments of silence; the first stanza of the Star Spangled Banner (which is all that is ever sung); solemn instrumental music; the pre-1954 Pledge of Allegiance; etc. And I take it the larger lesson of the French experience is that if we had a rule that govt/public events must be strictly non-religious, more secular rituals of solemnification would develop.

Finally, I'm not saying that our current practice is unconstitutional. I'm just noting that one claim made in support of it by Justice O'Connor appears to be false.

Bob Hockett said...

Many thanks, Mike.

I'm quite agreed with you on all of this, partly on feasibility grounds suggested by the French example, and partly on desirability grounds rooted in (a) a commitment to non-subordination, (b) a Shiffrinesque distaste for state corruptions of religious practice, and (c) what I believe to be our constitution's 'codification' of those values.

I'm very drawn to the legitimate purposes to which Justice O'Connor appeals. But I also believe they can be served both fully and less problematically by means that do not amount to what I'm tempted to call 'strip mall theism.'

And such strip mall theism, for its part, seems to me to embody a completely disgusting devaluation both of persons who do not partake of particular religious traditions, and of those religious traditions themselves.

I might even add that I say this very much as a faithful if critical adherent of one such tradition, a sort of quasi-adherent of an older such tradition, and a fellow-traveller-style friend to many other such traditions.

Thanks again!,


FreeXenon said...

I am in complete agreement.

We should separate secular marriage into something called a civil union (or the like) and leave the sacramental ritual and meaning to the external religious institutions and their marriage.

Bryce said...

I oppose same-sex marriage on religious grounds because of doctrine and on political grounds because I don't want anti-discrimination rights and religious rights to be put on a crash course. That being said, your thoughtful (and impressively respectful, I might add) proposal strikes me as a solid possible compromise. If that proposal were adopted, however, I wonder if one religion's refusal to perform sacramental same-sex marriages might be treated as grounds for a discrimination lawsuit. I'm sure that no religion would be forced to perform sacramental marriages against its own doctrines, but when a religion's doctrine leads it to discriminate on the basis of sexual orientation, could there be other legal repercussions (e.g., loss of tax-exempt status or state funds for relief programs)? I tend to think that compartmentalizing duties of church and state ought to, if anything, protect religious freedom more than infringe upon it.

Also, I share your distaste for state corruptions of religious practice. I'd love if government officials prayed on their own before meetings, but prayers in public tend to smack of insincerity and stir up hard feelings, neither of which are compatible with my understanding of religious faith.

Derek said...

These are promising ideas.

I was recently talking to a friend who is a member of the LDS Church and he explained that one reason the Church was opposed to gay marriage was the fear that, should gay marriage become legal, the Church would have its ability to marry people revoked if it refused to marry same-sex couples. But I found this puzzling for reasons related to those you discuss. Why should the Church care if it loses the ability to create civil marriages? If the government takes that power away from it, it could still perform sacramental marriages and then the couple could just go to a justice of the peace for the civil marriage part. Is that so disastrous?

As for ceasing to use the word "marriage" to refer to civil marriages, although I personally agree that "it's hard to see what objection anyone could have to consenting adults’ deciding their partners-in-union for themselves, without interference from others purporting to ‘defend’ marriage," I think many people would still object on the ground that they think homosexuality is wrong and shouldn't be endorsed or sanctioned in any way by the state. Not using the word "marriage" wouldn't affect this objection.

Still, maybe it would satisfy enough of the objectors to push the more hard core opponents of gay marriage to the fringe.

Bob Hockett said...

Thanks very much for the great comments, Bryce and Derek.

Bryce, on the concern that the state might attempt to force or otherwise induce particular denominations into affording sacramental unions to persons they do not afford them to now, I would think that such attempts, were they made (which seems somewhat unlikely at least at this point given the friendliness of our culture to free exercise), would be easily challenged on first amendment free exercise grounds. But doubtless there could arise controversies here, reminiscent of those that arose in connection, for example, with Bob Jones University's prohibition on interracial dating on putatively religious grounds, and with the Boy Scouts' free association argument against being made to accommodate gay scouts and scoutmasters. It might be worth noting, however, that these controversies occur now, and that there might not be any reason to expect a stricter division between state domestic partnerships and ecclesial marriages to render those more likely. If anything, I'm tempted to think that separation would render some such controversies less likely to arise, rooted as so many of them seem to be in our current conflation of the two senses of 'marriage.' I hope I'm right about that!

Derek, I take your point. One comforting thought in response might be that it would seem pretty easy to argue that the state is not meant to enforce all moral positions with the police power, but only such positions as are aimed at protecting unconsenting parties from harmful behavior taken by others, on some plausible understanding of 'harm.' My guess is that few would regard as plausible any claim that consenting homosexual partners cause 'harm.' But of course I am presently just guessing.

Thanks again!,


Crispian said...

Excellent post and discussion of this issue.

My objection resembles the first two you identify (that would be impracticable or unhealthy in some sense to separate political and cultural life). For me, it is an objection to sterilizing culture by force of law.

You are right that separating marriage into its moral and civil components would accord with the trend of 'compartmentalization' that has occured in modern society. But so much of this is due to the increased influence of government (including the courts) on our lives. As government authority increases, well-meaning judges and intellectuals find ways to give more aseptic rationales for laws originally animated by morality. Moral rationales are automatically equated to religion and must be purged by invocation of the shorthand 'separation of church and state.'

When it comes to marriage, this sanitization results in a legal construct that is nothing more than a superfluous contract between two people. The heart of "marriage," imbued with all its moral implications, ceases to be. Certainly two people can love each other just as much and feel such a moral bond, but that is true now, regardless of marriage.

The problem of course, is that society is making a judgment that homosexual relationships do not inhabit the same moral plane. But I don't think such offense authorizes a purging of morality in our laws. And as you point out through the third objection you identify, I don't think gay marriage advocates want it either - they want the morality of their relationships to be recognized.

I don't think the democratic will must justify the use of moral, cultural, and even religious values as support for policy (religious intent is a separate matter). The fact that your solution would potentially remedy a cultural battle and diminish offense is not sufficient reason to take the heart out of our laws and suppress democratic will in my view.

Bob Hockett said...

Thanks, Joe,

Very nice points, in going as they do straight to the heart of the matter of law's relation to culture and the morality that partly constitutes a culture. One quick question, though, which I pose sincerely with no firm opinion of my own as yet what the best answer would be: You mention an increased influence of government on our lives, and well-meaning judges and intellectuals giving aseptic rationales for laws originally animated by morality. And I wonder whether there isn't a tension here. For a law's proceeding from a moral view would amount, it seems to me, if that moral view were the only rationale for the law, to a government's becoming a morality-enforcer. And that of course would amount to a government influence on our lives -- possibly one that could not be legitimated if the morality in question was not shared by all whose government it was. Perhaps the appropriate thing for government to do in such case would be simply to abstain from taking a position on that moral matter, and therefore to abstain from enforcing that form of morality? I've a sort of gut feeling that the morality that all of us can, do, and must share is that core of morality often found under the name of 'the harm principle.' Basically, the idea would be that government must prevent unconsented harms, while leaving 'victimless' delicts to the private sphere. If this is a plausible view -- and I really do not know at this point whether it is, though I find it initially appealing -- then perhaps the right libertarian thing to do is say that marriage simply is not a government concern?

Thanks agin,

Anonymous said...