Both in the US and overseas (the debate in UK and in Australia are helpfully summarized here) debates about whether or not to redefine marriage to include same-sex couples has generated a great deal heat but very little analytical light. This is why I think a recent post by the Roman Catholic canon and civil lawyer Edward Peters is especially helpful (here).
He begins with a brief legal analysis of the legal and existential differences between “union” and “marriage.” While his concern is the response of the Catholic Church to changes in civil martial law, I think his observations are applicable to Orthodox Christians, Protestants and people of good will who reject recent innovations in civil marriage laws:
Ancient Christians, offered the choice between burning incense to honor the divine Augustus or dying a slow painful death, had to choose the slow painful death if they wanted to remain faithful to the true God. But suppose, instead of burning incense to honor Caesar as a god, ancient Christians could have burned incense to honor him as an emperor. Christians could have burned incense in such cases, as casually as we set ablaze waxen wicks atop a frosted cake to honor a man’s birthday, without fear of scandalizing others. No one thinks the birthday boy is God, and only if some authority begins implying that so-and-so really is a god (think North Korea), and that burning candles in his honor is to acknowledge him as a god, does the matter take on additional meaning. Here, the labels attached to the action domake a huge difference.
Likewise, saying that two persons of the same sex are in a legally-recognized union, whatever else one says about that relationship, is not tantamount to saying that those two persons are married for the simple reason that not every union—even long-term, consensual, sexually-active, economically stable, unions—is a marriage civilly or canonically.
For Peters’ observation to be codified into law, would require (in my view) that the State no longer issuing marriage licenses. Since the State does have a legitimate interest in marriage (even if there is a social debate about its nature), I think it would be better for the State simply to register marriages while remaining agnostic to the exact nature of the union.
How might this work?
First of all a couple could simply register themselves as married according to their own understanding of the institution. Let’s call this a “civil union.” While it would please everyone, this would allow the State to remain legally indifferent as the emotional and/or sexual nature of the union.
To this simple record of fact–“Person A and Person B on such and such a date contracted a civil union”–I would add the option of the couple signing a standard contract that (as Peters observes in his essay) that would spell out the conditions under which they would “share their earnings, have access to each other’s personal records, be covered under each other’s insurance, inherit a preferential portion of the other’s estate, and so on.” Or, they could sign a contract that was in according to their own religious faith.
Or, the couple could sign a contract that reflected the teachings of their own religious faith. What might this look like?
For an Orthodox couple, this could look very much like the standard contract. To this, I suggest including (for example) conditions under which the divorce would be allowed drawn from both secular and canon law. I’ll talk about why this matters in a moment. For now
For now, though, I think the contract would, at a minimum, allow (not require) divorce for the following reasons: apostasy by one spouse, physical abuse, addiction, and the refusal by one spouse to have children.
Though stated in the negative, all of these conditions also reflect expectations that the spouses have for each other and which in the tradition of the Church are the essential building blocks of the vocation of marriage. Faith in Christ, mutual respect and affection, soberity of life and openness to new life. These are, I would hope, uncontroversial for Orthodox Christians.
While many Orthodox Christians are right upset by the recent change in marriage laws, I think the earlier change of “no-fault” divorce is at least as great a moral and pastoral challenge. In effect, civil divorce laws allow the State to insert itself into the life of Church and end a marriage for any reason or indeed no reason at all.
The same voices that (again, rightly) object to same-sex “marriage” were noticeably silent about changes in divorce laws. What should be a rare–and always tragic–event for the couple, the Church AND civil society, has become ordinary and a matter of social indifference.
Yes, as the list above suggests, there are times when divorce is necessary and the Christian tradition has always acknowledged this. However, Christians of all tradition have been so willing to see our understanding of marriage encoded, and so enforced, in civil law that we have overlooked that what Caesar gave with one hand, he took with the other.
We, and by “we” I mean all Christians though especially Orthodox Christians, have long ago accepted the idea that “marriage” is based not on the “laws of Nature and Nature’s God” but merely in human desire. And this we’ve done while simultaneously preaching a sacramental view of marriage that sees the natural vocation raised by the Holy Spirit to be a living icon of Christ’s love for the Church.
The take away for me is this.
Not that we can no longer depend on the modern secular State to support the Orthodox vision of marriage. Rather it is that we never could and never should have looked to Caesar to do for the Church what only the Church could do for herself.
As Christians–Orthodox, Catholic, and Protestant–and people of good will, we need to advocate for laws that allow us at least to pursue a fuller vision of marriage. Such a vision embraces the necessary but insufficient role of mutual consent in marriage. But contemporary divorce laws reduce marriage to whim. They likewise exclude any role for of communities–religious OR secular–in supporting and sustaining marriage as well as holding married couples accountable to their mutual commitment.
Finally, n one of this obviates the role of the State in marriage.The State has a legitimate concern in marriage. While Christians of various traditions think the State has overstepped its authority in expanding the definition of marriage to include same-sex couples, this doesn’t negate the State’s role. What we need to do is what the Church has always done. We must find a way in which we can remain faithful to the Gospel even while acknowledging the State’s God-given role in human affairs.
My immodest marriage proposal, I think, might be a good first step.