Privatization

Privatizing Marriage: Does it work from a Christian Worldview?

THE PRIVATIZATION OF MARRIAGE AND RELIGIOUS FREEDOM

 

CONTENTS

 

Chapter

  1. INTRODUCTION………………………………………………………………………………………………………   1
  2. CONFLICT BETWEEN RELIGIOUS FREEDOM AND HOMOSEXUAL ACTIVISM………………    2
  3. THE CASE FOR PRIVATIZATION OF MARRIAGE………………………………………………………….  5
  4. OBJECTIONS TO MARRIAGE PRIVATIZATION……………………………………………………………   9
  5. ANOTHER PATH: RELIGIOUS EXEMPTIONS……………………………………………………………… 13
  6. CONCLUSION……………………………………………………………………………………………………………. 14

SELECTED BIBLIOGRAPHY…………………………………………………………………………………………………    15

 

 Introduction

            Within the heated debate concerning whether to legalize homosexual marriage, could it be possible that both sides are missing the mark? Some question why the government should be in the position of declaring who can and cannot be married legally. Those in favor of homosexual marriage commonly see this topic as a civil-rights issue. Those in opposition, however, see it as another example of minority rights being enforced on the culture, often at the expense of religious liberty and freedom of conscience. This raises the question of why anyone should require, or need to require, government approval for a private and often sacred relationship? Governments are often contemplating the privatization of important sections of their infrastructure – from electricity to social security. It makes sense, to some at least, to consider the possible positive outcomes that would flow from privatizing marriage; in theory preserving religious freedom for evangelicals who deeply hold to an orthodox Christian ethic on marriage. The recent and often emblazoned conflict between religious individuals and homosexual activists concerning sexual freedom and religious liberty will be explored, highlighting the need for some sort of meaningful reconciliation.

Conflict between Religious Freedom and Homosexual Activism

In recent years there has been rising conflict and attention brought to tension existing between religious groups – especially Christianity – and the LGBTQ movement, with the conclusion often not being in favor of religious liberty. As of late, a main argument of individuals who stand in favor of same-sex marriage is that all Americans should be free to choose who they can love and live their lives with. However, the statement has implications; does that supposed freedom mean that the government should coerce those who have religious objections to homosexual marriage celebrate what they fundamentally believe to be wrong? In the State of Washington, a florist had employed and served homosexual individuals for years. However, she declined to arrange flowers for a same-sex marriage and was sued by the Washington State Attorney General on the basis of discrimination.1 She acted in accord with her faith and thus decided against the use of her florist shop to celebrate and commemorate the wedding of a same-sex couple. The American Civil Liberties Union and the Washington Attorney General’s office hold that this florist is guilty of discrimination. In Oregon, the owners of a bakery faced a fine of over 130,000$ in penalties for refusing to bake a cake for the wedding of a same-sex couple.2 As a result of this action, the Kleins were left with no choice but to shut down the bakery they ran together, “Sweet Cakes by Melissa”, and had their savings forcibly seized as a result of the court ruling. In a disturbingly symbolic gesture, the state even seized a separate bank account the Kleins had opened specifically for their church giving.

The question of whether private entities such as private Christian colleges can hold religious views on marriage without falling into government defined discrimination is tenuous. Recently, California was considering senate bill 1146 which would have widely restricted religious freedom in higher education.3 The legislation would have narrowed a religious exemption in California that had previously allowed religious exemptions for universities

  1. Josie Delvin, Memorandum Decision and Summary Judgment of Arlene’s Flowers vs. Ingersoll. Alliance Defending Freedom. Accessed October 26, 2016. http://www.adfmedia.org/files/ArlenesFlowersSJruling.pdf/
  2. Alan McCullough, Sweet Cakes Interim Order. http://www.oregon.gov. Accessed October 26, 2016. https://www.oregon.gov/boli/SiteAssets/pages/press/BOLI Sweet Cakes Interim Order.pdf/
  3. Senate Bill No. 1146. http://www.leginfo.legislature.ca.gov. September 9, 2016. Accessed October 26, 2016. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160SB1146/

 

that were faith based to exist without punishment for religious beliefs. The new law would have limited the religious exemption just to student programs preparing for vocational ministry. This functionally would have limited religious liberty for students and faculty of California religious universities. The ability to incorporate spirituality and authentic religious belief would be effectively terminated, especially as relates to religious views on sexuality. In a cruel twist of fate, Christianity’s past positive effect upon higher education would be completely ignored. Compulsory education in America was brought to bear by Christianity, for both male and female alike. The Puritans, for example, established Massachusetts Bay Colony and just a few years later founded Harvard. Later, in the 18th century Yale followed along with a number of other Christian centered universities.4

The effect of Christianity as a belief system has been integral to the role of higher education, but accreditation is at stake now, in a cruel reversal of Christianity’s relation to higher education. In the fall of 2015, the New England Association of Schools and Colleges (NEASC) debated the accreditation of Gordon College. This was based upon the universities traditional religious view of homosexual practice as forbidden behavior in its student’s handbook section on Life and Conduct.5 This belief was obviously contrary to the NEASC and the risk of losing its accreditation was a possibility for Gordon College. Ultimately, Gordon College was allowed to retain its accreditation; however, the recent California bill and the accreditation issue reveals a deep divide between government and private Christian higher education.

  1.  Clifton Olmstead, History of Religion in the United States, Prentice-Hall, Englewood Cliffs, N.J. 1960, 69-80, 88-89.
  2. Gordon College Student Handbook. http://www.gordon.edu. July 16, 2016. Accessed November 1, 2016. file:///C:/Users/School/Downloads/Gordon College Student Handbook 2016-2017.pdf/

Obviously, the beliefs expressed by the mainstream culture and good portions of government are fundamentally at odds with Christian views on sexuality. The Christian no longer has the luxury of bringing his or her view of sexuality into the public square without fear of reprisal. While the sexual liberation movement guides its values based upon a blind relativism that gives no credence to a logical order or purpose for sexuality, the mainstream views on sexuality insist that one fall in line with demands, as it is a matter of social justice. Political theorist Matt Frank forewarns, “there is no good reason for the new legal order to make room for ‘conscientious’ religious dissenters, for clearly their consciences are malformed and unworthy of respect”.6 In the current state of relation between Christians and the sexual liberation movement there is obviously a high level of discrimination and focus upon the religious community. While it was often presented that there would be a laissez-faire approach that would allow for a tolerance of all viewpoints; it was foolish to think that a movement predicated upon allowing marriage on the basis of emotional attraction, rather than concrete biological evidences would hold to any of its promises.7 Those who hold that marriage is the exclusive relationship between a man and woman are certainly groping for the failed promise of non-discriminatory treatment. It is evident that there is an inexorable contention between those of a religious persuasion, and those who are progressive in their view of human sexuality.

  1. Matthew Franck, Same-Sex Marriage and Religious Freedom, Fundamentally at Odds. The Witherspoon Institute: Public Discourse. Accessed November 1, 2016. http://www.thepublicdiscourse.com/2013/06/10393/
  2. Robert George, Marriage, Religious Liberty, and the “Grand Bargain. The Witherspoon Institute: Public Discourse. Accessed November 1, 2016. http://www.thepublicdiscourse.com/2012/07/5884/

The Case for Privatization of Marriage

The question that gives impetus to the idea of marriage privatization can emanate from both a religious and non-religious base. For those of a religious nature, especially in the Christian tradition, marriage has always been a sacred act that is defined by both Scripture and the Church. Why then should the defining factor of what marriage is be defined by the state, which in the mind of many Christians is often an afterthought concerning marriage? What is the Biblical case for why Christians should be inclined to accept marriage privatization? Is it acceptable for Christians to join in on the Libertarian idea of getting government out of the marriage business? Especially in light of Old Testament teaching which gave strict prescriptions of civil law for marriage.

The Christian belief that marriage stands outside the realm of government is pictured in Mathew chapter nineteen. In this passage, Jesus encounters the Pharisees who question him concerning the topic of divorce. Matthew nineteen details that the Pharisees came “to test him”. They questioned Jesus, “Is it lawful for a man to divorce his wife for any and every reason”.8  As with many of the interactions Jesus had with the Pharisees, it was a trap. Jesus had previously condemned divorce in His Sermon on the Mount, however it had not escaped the Pharisees (or Jesus) that Mosaic Law permitted divorce. Jesus was placed in a conundrum; either recant His previous teaching on divorce or oppose Mosaic Law. Jesus bypasses the trap by providing the view of marriage set in Genesis: “Haven’t you read . . . that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave

  1. The Holy Bible, New International Version. Matthew 19:3.  Grand Rapids: Zondervan Publishing House, 1984.

his father and mother and be united to his wife, and the two will become one flesh?’ So they are no longer two, but one. Therefore, what God has joined together, let man not separate”.9 Jesus bypasses Mosaic Law and heads straight to the morality and heart of what was originally intended for marriage. The takeaway is this: God’s universal prescription of marriage is to outweigh any human expression of what marriage is.

In its most basic expression, privatization of marriage within a modern context would be contractual in nature. In contradiction to much of the family law and periodically proposed marriage laws and amendments, the state would no longer define marriage to specific mandatory norms other than to maintain certain minimum basic values.10 Undoubtedly, it is different to think of marriage as just a contractual issue, especially for Christians. However, the Christian (or other religious perspective) does not have to think of marriage as only contractual. It is only the state that should have to think contractually, allowing for religious traditions to frame marriage any way desired in their sacred tradition.11

It would be short-sighted to believe that the state would no longer be involved in marriage. There must be an enforcer of contracts, and the nature of a social contract obviously leads to the need for an arbiter and enforcer. How this would functionally play out, in some

  1. The Holy Bible, Matthew 19:4.
  2. What are minimum basic values? Some should be clear, such as a prohibition of coercion to marry someone against one’s will, and marriage of children under minimum ages. It is not timely to state all criteria for minimum requirements of marriage. However, within liberal democratic systems it is acceptable to propose government regulation as a means of meeting compliance with minimum norms. It is still possible that a wide variety of personal views can be held that exist above minimum norms.
  3. Daniel Crane, A Judeo-Christian Argument for Privatizing Marriage. Cardozo Law Review27, no. 3, 1221-1259.

 

instances, would be for the religiously inclined couple to delegate arbitration of marital issues over to a certain religious institution.12 This would, in theory, effectively reduce the control of the state over the marriage of religious individuals. It could be encouraged by the state to direct couples to seek out privately arbitrated religious tribunals, agreed upon beforehand by a prenuptial agreement. The state could then just step aside to the ruling of the religious institution which has arbitrated. The only cases in which the state would become involved in these private expressions of marriage would be when abuses arise that invalidate the arbitration of the religious institution.13 The effects of such privatization according to Daniel Crane, Law Professor at the University of Michigan would put private counsels in a position of authority, “The effect of such ‘privatization’ would make religious tribunals the primary arbiters of legal matters involving marriage, at least for religious couples opting into private arbitration. From the perspective of the state, marriage would be relegated to a form of private contract, subject to the usual rules of enforceability and arbitration”.14 This method of privatized marriage could be made in the form of a choice. For those who wish to adhere to a religious understanding of marriage, they can conceptualize that however wished. Those of a secular persuasion could have their marriages function as they presently do, or there could

  1. Crane, 1252.
  2. Federal Arbitration Act, 9 U.S.C. § 10(a) (2000). A private arbitration could be vacated if the decision was come to by corrupt or fraudulent means. If there was unfair partiality by the private arbitrators; if the arbitrators conducted themselves poorly by refusing to hear all information important to the arbitration. If the arbitrators went past the powers given them in coming to a conclusion, or so poorly performed their duties that they were never able to come to a final decision. To attempt to solve certain issues that could crop up in the future, it may be helpful to pass an arbitration act that addresses private marriage arbitrations. As it would probably inevitably happen, a state court may eventually have to step into a private arbitration if the aforementioned idea of minimum liberal values are not met.
  3. Crane, 1251.

 

be a separate privatization that functionally works in the same way as the religious model proposed, but instead of religious tribunals, uses secular tribunals.

Concerning the rights that now accompany marriage; those rights would not be available through the private contract marriage proposal (Immigration eligibility, tax breaks, etc.). One proposal would embrace the full and total contractualization and privatization of marriage. Spousal benefits as now understood would not exist in this new method. This new form of contractual privatized marriage would have previously enacted contract law as authoritative; effectively doing away with any form of spousal benefits. Many often argue that the states interference and regulation of marriage between spouses needs justification. Those holding this view often argue that there is not an adequate justification for the costliness of marriage and legal proceedings that often accompany it.15 While this argument is often made from the Libertarian perspective, in an effort to preserve religious freedom it could be used. While marital rights would cease to exist as currently known, it would in theory allow for less government influence in marriage.

It would be possible to retain marital rights while still abolishing marriage. Elizabeth Brake, writing for The Stanford Encyclopedia of Philosophy says this, “the state ought to replace civil marriage entirely with a secular status such as civil union or domestic partnership, which could serve the purpose of identifying significant others for benefit entitlements, visiting rights, and so on”.16 Certainly marital benefits are a thing that many would not want to lose.  As far as

  1. Jeremy Garrett, 2008, “History, Tradition, and the Normative Foundations of Civil Marriage,” The Monist, 91(3–4): 446–474.
  2. Elizabeth Brake, Marriage and Domestic Partnership, The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.) http://plato.stanford.edu/archives/fall2012/entries/marriage/

the purview of the state goes, the only thing which they should be concerned with is giving marital-type benefits to contractually united couples. To formulate any type of marriage by the state would already be deemed unacceptable from the private contractual framework already built.

Make no mistake, as Torcello explains, that marriage must remain private even though certain civil union benefits may be given: “Having made this argument, however, it is imperative to add that in addition to a civil union, the parties involved should be able to define their bond in relation to a particular comprehensive doctrine in the private sphere as they see fit. The latter comprehensive arrangement should remain a strictly private, non-legal matter”.17 The attempt to make marriage a private matter is ultimately an attempt to maintain the idea of religious freedom and at the same time appease the liberal notion of what they believe marriage to be. This may not be the most desirable outcome for evangelicals, who in the past have advocated for marriage laws defined by conservative evangelical standards. This proposal does however attempt to stem the tide of where religious freedom in heading in America.

Objections to Marriage Privatization

            The idea of getting government out of the marriage business does sound especially appealing, and when taking into account the current war raging over marriage definition it seems a quick and effective way to put the dispute to rest. Also of importance is the fact that

  1. Lawrence Torcello, Is the State Endorsement of Marriage Justifiable? Same-sex Marriage, Civil Unions, and the Marriage Privatization Model. 2008. Public Affairs Quarterly, 22 (1).

 

Christians hold the family and its health as especially important. Does privatizing marriage effect marriage, family, and the health of children both spiritually and physically in a negative way? Jennifer Morse, writing for the Witherspoon Institute, argues that marriage privatization is impossible for a number of reasons. First, she argues against privatizing marriage on the basis of parenthood, “Marriage attaches mothers and fathers to their children and to one another..…these two hold their parental rights against all other competing claimants”.18 If government does not recognize marriage then it will not recognize who a child belongs too. The state would eventually have to re-involve itself in marriage to define parenthood (who the child belongs too). The whole goal was to take government out of marriage, but the state has a vested interest in children, and a civilized government should protect children.

In furthering her discussion, Morse argues that a free society needs adults who can function effectively independent of supervision. Morse says, “A free society needs people who can use their freedom without bothering other people too much. We need to respect the rights of others, keep our promises, and restrain ourselves from taking advantages of others”.19 Children, according to Morse, learn how to be functional adults from living with their parents. She claims that the failure to have this relationship is pictured with disordered children, children who lacked a proper parental relationship: foster care, orphanages, etc. Morse elaborates, “These children have their material needs met, for food, clothing, and medical care.

  1. Jennifer Morse, Privatizing Marriage is Impossible. The Witherspoon Institute: Public Discourse. Accessed November 11, 2016. http://www.thepublicdiscourse.com/2013/06/10393/
  2. Jennifer Morse, Privatizing Marriage Is Unjust to Children. The Witherspoon Institute: Public Discourse. Accessed November 12, 2016. http://www.thepublicdiscourse.com/2012/04/5073/

but they are not held, or loved, or looked at. Some of them never develop consciences. But a child without a conscience becomes a real problem. A free society can’t handle very many people like that, and still function”.20 Children often cannot defend their rights by themselves, and the state intervening after these rights have already been violated does not change that fact. Marriage is society’s way of proactively defending the rights of children from abuse. When a married couple conceive and bear a child they have a focal point of unity – the child. The fatal flaw of the contractual method is that contracts are not meant to establish permanent or unlimited obligations. But that is what parenthood is, permanent and an almost numberless amount of obligations due to a child. And while the Christian view on marriage may come with permanence, secular society does not, and to privatize marriage will affect society and the family negatively as society does not bring a healthy view of marriage.

There is already a vested interest of the state to protect the rights of children through family law. Protecting children is good for the state, and good for children. To throw traditional parenthood on its head for contractually based marriage would in the end just re-involve the state when children are involved. Contractual marriage between two consenting adults, and just two consenting adults, may functionally work. However, when the topic of custody in cases of divorce, child support, and other child related marriage issues arise the state must involve itself. It is the only current framework that can speak for children. Contractual marriage would then have a very narrow application (childless adults), too narrow to warrant widespread implementation.21

  1. Morse, Privatizing Marriage Is Unjust to Children.
  2. Ibid.

In another piece (Morse writes a three part work, each one is cited here), Morse argues that privatizing marriage will actually expand the intrusion of the state into the family. Libertarians, and other small-government minded groups, are captured by the idea of removing government from marriage. Marriage attaches mothers and fathers to their children, and to contractualize marriage is to give the government massive power over defining parenthood. Morse explains, “The state will pretend to get out of the marriage business all right, but then the state inevitably will be caught up in the business of defining who counts as a parent”.22 The concept of motherhood and fatherhood are natural and readily understandable concepts. With the current system, government has merely recorded the parenthood of a couple. With a privatized marriage system the government must recognize who the children actually needs to be with. And in the case of divorce or child abuse, the government would have to recognize the parents before deliberating on the issues that brought the contractual family into the court to begin with. Morse explains, “the state taking over parenthood and recreating it for its own purposes. Do you seriously think this can possibly be a “libertarian” or minimum-government move?”.23 Privatizing marriage moves the state from recording parenthood to defining it.

                        Many imagined increases of freedom have in reality turned out to be lawlessness, and to damage children. Christians must take the health of children seriously to be faithful to Scripture. These increases in freedom include such things as, “No-fault divorce, out-of-wedlock childbearing, and the early sexualization of children, all seemed like good ideas at the time,

  1. Jennifer Morse, Privatizing Marriage Will Expand the Role of the State. The Witherspoon Institute: Public Discourse. Accessed November 12, 2016. http://www.thepublicdiscourse.com/2012/04/5071/
  2. Ibid.

 

ideas that would free us by relaxing oppressive social and legal constraints”.24 However, what was thought to free people actually turned out to damage children. It is the opinion of Morse that privatizing marriage only gives the state more control, and will damage the family just as past attempts at increasing freedom have.

Another Path: Religious Exemptions

            In light of the objections to marriage privatization upon the basis of the health of children, it would seem that there must be another path to reconciling the war between homosexual activism and Christianity. Perhaps the best way to proceed is for those of a religious persuasion to be granted a religious exemption for their views upon marriage. These religiously inclined individuals and corporations would ideally exist in an insulated bubble outside the reach of the discrimination laws that are now plaguing orthodox Christianity and other expressions of religion.  The Religious Freedom Restoration Act does set precedent for the use of religious exemptions.25

                        In even more recent history, Hobby Lobby received a religious exemption for its stance on contraception. In the landmark decision, The United States Supreme Court allowed for closely held for-profit corporations to be exempt from certain laws if the owners object on religious grounds.26 The language and path is already open for privately held corporations to receive religious exemptions based upon religious belief. Therefore, religiously held

  1. Morse, Privatizing Marriage Will Expand the Role of the State.
  2. The Religious Freedom Restoration Act of 1993. No. 103-141, 107 Stat. 1488 (November 16, 1993).
  3. Burwell v. Hobby Lobby, 573 U.S. (2014).

corporations or private institutions of higher learning would be free to gain an exemption just as the individual could.27 With the current trend of homosexual activism and its growing animosity and threatening stance toward evangelical Christianity, this religious exemption would hopefully serve to buffer corporations, private institutions, and individuals from discrimination laws. It seems that pursuing religious exemptions has much more merit, and does away with the risk of damaging the family that marriage privatization does. The religious tribunal method of privatizing marriage sounds like a good idea, but receiving religious exemptions is a much simpler path that already has legal precedent. It is also doubtful that privatizing marriage would be good for the society as a whole, the family, or especially children.

Conclusion

            While there is an ever growing war between religious freedom and homosexual activism, privatization of marriage would seem to have more ill effects then positive ones. Bringing a robust Christian worldview to this issue leaves one doubting that privatizing marriage would be good for the family, one of God’s chief focuses. Pursuing a solution to the ongoing marriage  battle may best be sought through going the route of the already legally established religious exemption path.

  1. Wisconsin v. Yoder, 406 U.S. 205, 214-15 (1972).

 

 

 

 

 

Selected Bibliography

Brake, Elizabeth, Marriage and Domestic Partnership, The Stanford Encyclopedia of Philosophy,             Edward N. Zalta (ed.) http://plato.stanford.edu/archives/fall2012/entries/marriage/

Burwell v. Hobby Lobby, 573 U.S. (2014)

Clifton, Olmstead. History of Religion in the United States, Prentice-Hall, Englewood Cliffs, N.J.   1960, 69-80, 88-89.

Crane, Daniel. A Judeo-Christian Argument For Privatizing Marriage. Cardozo Law Review 27,    no. 3, 1221-1259.

Delvin, Josie. Memorandum Decision and Summary Judgment of Arlene’s Flowers vs. Ingersoll. Alliance Defending Freedom. February 18, 2015. Accessed October 26, 2016.             http://www.adfmedia.org/files/ArlenesFlowersSJruling.pdf/

Federal Arbitration Act, 9 U.S.C. § 10(a) (2000).

Franck, Matthew. Same-Sex Marriage and Religious Freedom, Fundamentally At Odds. The        Witherspoon Institute: Public Discourse. Accessed November 1, 2016.      http://www.thepublicdiscourse.com/2013/06/10393/

Garrett, Jeremy, 2008, “History, Tradition, and the Normative Foundations of Civil           Marriage,” The Monist, 91(3–4): 446–474.

George, Robert. Marriage, Religious Liberty, and the “Grand Bargain. The Witherspoon Institute: Public Discourse. Accessed November 1, 2016.             http://www.thepublicdiscourse.com/2012/07/5884/

Gordon College Student Handbook.” http://www.gordon.edu. July 16, 2016. Accessed November 1,       2016. file:///C:/Users/School/Downloads/Gordon College Student Handbook 2016-         2017.pdf/

McCullough, Alan. Sweet Cakes Interim Order. http://www.oregon.gov. January 29, 2015. Accessed      October 26, 2016. https://www.oregon.gov/boli/SiteAssets/pages/press/BOLI Sweet   Cakes Interim Order.pdf/

Morse, Jennifer. Privatizing Marriage is Impossible. The Witherspoon Institute: Public      Discourse.  Accessed November 11, 2016.   http://www.thepublicdiscourse.com/2013/06/10393/

Morse, Jennifer. Privatizing Marriage Is Unjust to Children. The Witherspoon Institute: Public      Discourse. Accessed November 12, 2016.           http://www.thepublicdiscourse.com/2012/04/5073/

Morse, Jennifer. Privatizing Marriage Will Expand the Role of the State. The Witherspoon           Institute: Public Discourse. Accessed November 12, 2016.      http://www.thepublicdiscourse.com/2012/04/5071/

Senate Bill No. 1146. http://www.leginfo.legislature.ca.gov. September 9, 2016. Accessed October 26,             2016.             https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160SB1146/

The Holy Bible, New International Version. Matthew 19:3.  Grand Rapids: Zondervan Publishing House, 1984.

The Religious Freedom Restoration Act of 1993. No. 103-141, 107 Stat. 1488 (November 16,       1993).

Torcello, Lawrence. Is the State Endorsement of Marriage Justifiable? Same-sex Marriage, Civil             Unions, and the Marriage Privatization Model. 2008. Public Affairs Quarterly, 22 (1).