Preserving Marriage in Substance, Not Just Name
The Prop 8 debate is not a clash between civil liberties and religion.


Should the state treat marriages the same way it treats baptisms and bar mitzvahs — as purely religious practices properly left to religious institutions? That’s what some are now arguing. If the state didn’t create marriage, they reason, then religion must have; and the state shouldn’t endorse sectarian religious beliefs. But their argument is profoundly flawed.

This can of worms is in the news because of the debate generated by California’s Proposition 8, a state constitutional amendment enacted last November to restore to the law — after its invalidation by California’s supreme court — the conjugal conception of marriage as the union of a man and a woman. Legal scholar Doug Kmiec (who initially endorsed the proposition) now argues that it “is oblivious to the differing faith practices of our citizens.” “Marriage is of religious origin,” he claims, and “it should remain there.” He observes that “some faiths accept same-sex relationships and others profoundly object.” And he argues that “as a matter of religious freedom, both must be accommodated.” His solution is to “separate state and church,” which, he insists, can occur only if the state “employs non-marriage terminology for all couples” — gay or straight — while religious institutions continue using the term “marriage” however they see fit.

Kmiec’s proposal has gotten some traction. In oral arguments last Friday in a challenge to Proposition 8, Justice Ming W. Chin referred to Kmiec’s argument, asking the lawyers on both sides of the case whether his solution would be acceptable. Meanwhile, the Los Angeles Times ran an editorial endorsing the idea: 

The argument frequently raised against same-sex marriage is that marriage represents a special bond, traditionally and biblically reserved for a man and woman. But under this approach, religions and other belief groups could continue to sanction marriage in accordance with their definitions, and the state could concern itself with the civil rights and responsibilities of two people who decide to share life, home, family and the remote. 

Kmiec and the editors of the Times join a long series of activists who insist on framing the same-sex marriage debate as a clash between civil liberties and religion. But that’s not what it is. This debate is about the substantive differences between same-sex marriage and traditional marriage, whatever they are called. The question is whether the substance of the traditional institution should be endorsed both by voluntary associations (including houses of worship) and by the state as the ideal union of adults and the ideal environment for childbearing and childrearing.

Much more than share a television remote, spouses play a crucial public role in any healthy society. Much more than the private union of consenting adults, marriage is vitally important for the well-being of our nation’s children. That’s why Kmiec’s characterization of marriage is unsound. While he is right to note that the state did not create marriage, he is wrong to claim that religion did. Marriage exists as a natural, pre-political, and pre-religious institution based upon human nature and its fulfillment. States and religions rightly recognize and support marriage, but it precedes both. Kmiec, who writes as a Catholic, fails to notice that his argument contradicts the Catholic faith, which teaches that you don’t need the Book of Genesis — or any divine revelation — to know that man and woman are sexually differentiated and that marriage is founded on the bodily union of sexually complementary spouses. Though Catholics believe that Jesus elevated this natural relationship to participate sacramentally in the divine Trinitarian life, this elevation does nothing to eliminate or obscure marriage’s status as a natural human institution. That is why the Catholic church has always regarded the marriages of nonbelievers as true and valid.

The anthropological record affirms that marriage is a natural institution, as scholars from the right and the left gathered by the Institute for American Values were able to agree

Marriage exists in virtually every known human society. . . . At least since the beginning of recorded history, in all the flourishing varieties of human cultures documented by anthropologists, marriage has been a universal human institution. As a virtually universal human idea, marriage is about the reproduction of children, families and society. . . . Marriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce. 


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