December 19, 2022

There is a way to undercut the left’s sustained attack on religion, expressed most recently through its assaults on traditional heterosexual marriage. The answer is to take government out of “marriage,” while continuing to allow it to control what are essentially the business aspects of two people joining together.

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Tanya Berlaga has clearly shown why the “Respect for Marriage Act” is no such thing. And, as legal briefs so commonly say, Berlaga’s arguments are incorporated by reference herein. While she discusses marriage’s proper role in society, space likely prevented her from reviewing the government’s role in marriage.

Let’s begin at the beginning, with the American colonies. In the Southern colonies, while marriage was performed before a magistrate, divorce was unacceptable because the Church of England did not sanction it.

Marriage was an explicitly secular act in the New England colonies. New England civil courts could dissolve marriages, but did so only rarely. There were only 44 divorces in one 60-year span. Courts also awarded property and typically granted child custody to the father because children were regarded as economic assets. The concept of “the welfare of the child” developed later when the economic value of children declined.

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Today, in my home state of Florida, a judge, pastor, or even a notary (I got mine to officiate at my grandson’s wedding) can legitimate a marriage. Similar laws exist across America.

But at the same time, the concept of the government approving or disapproving of a marriage that a state-designated officer does not perform places the state over marriage. It can be argued that this is an extension of the same principle of state authority one saw in the ancient droit du seigneur or jus primae noctis, which gave the local lord, the personification of the state, the right to the bride’s sexual favors on the wedding night.

While historians suggest that jus primae noctis is an urban legend, the king’s sexual privilege was undeniable in the ancient world. Ancient legends are replete with it for a simple reason. By “possessing” women, who produce valuable offspring, the ruler showed his ultimate authority and preserved his lineage. In the Israelite monarchy, David’s son Absalom declared his sovereign status by having sex with all his father’s concubines (2 Samuel 16:22, literal Hebrew). Killing all the royal competitors was the way to finish the job, but Absalom didn’t get that far before being hanged from a tree (2 Samuel 18:9-15).

Image: Wedding rings by freepic.diller.

Those of us with Christian backgrounds find the concept of “gay marriage” repugnant. Homosexuality and its related sexual deviancies (Sam Brinton, Rachel Levine, and Brittney Griner come readily to mind) may not be the province of the state to regulate but blessing them with the epithet of “marriage” is morally obscene. God created male and female; with extremely rare biological exceptions, we are all born male or female. The divine mandate is for one male to become husband to one woman and vice versa. But relegating marriage to a secular status pushes it back to the state’s authority to affirm or deny.

At this point, the linguists jump in. While most dictionary definitions speak of weddings and so on, “marriage” has a much larger semantic range. In its broader sense, it speaks of matching two “things,” not necessarily people, and joining them together. Obviously, this is parallel to a wedding ceremony, but that’s primarily because the things in a wedding are people who are joined together. “Matching” and “joining” are the root concepts. Thus, referring to the two people joining their lives as a “marriage” is less than exact language.

A different choice of words would eliminate the moral revulsion of Christians at “gay marriage” while retaining all the legal nuances. As far as the state is concerned, let’s rename this joining process as a “life partnership.” This is a more exact term, and completely lacks religious connotations. It directly expresses the intent for the two people to share their lives, whether religious or not. It also focuses on the legal issues involved.