Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, November 6, 2009

Is 'Marriage' a Civil as Well as a Sacramental Category?

Hello again, All,

Martha Nussbaum gave an interesting talk here today on the subject of same-gender marriage, a subject which figures into her forthcoming book on 'the politics of disgust.' I took the opportunity of the talk to raise a question that often has struck me, and that I would like to raise here to see what you all think. 

The question issues from a speculative thought that often presses upon me.  The thought for its part runs thus:  Much of the rancor that surrounds present-day argumentation and politicking about same-gender marriage seems to me as though it might be traceable to our tendency, when speaking informally about marriage, to run together two distinct categories. 

So far as *state* functions are concerned, 'marriage' seems to have a very thin meaning.  It seems to mean, so far as I can tell, little more than 'civil union.'  Talk about civil marriage, or civil unions, always seems to treat the phenomenon in question as a matter of the benefits conferred upon society by the prevalence of committed relations and stable households, and, accordingly of the state's having reason to facilitate or at any rate not hinder the formation of such relations and households. 

Within our nation's many *religious* traditions, on the other hand, 'marriage' of course has a much thicker, richer set of meanings -- meanings that often reach well beyond the here and now.  The fact that marriage in fact is a *sacrament* within the Catholic tradition of course is illustrative of just how fraught with transcendent importance, and hence how 'rich' in meaning and 'thick' with significance, marriage as distinguished from mere civil union tends to be. 

When I think about these differences, I often wonder why it is that the same word is so much as used for the civil and the ecclesial cases.  And when I reflect upon how muddling the two 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 whether it wouldn't be a salutary thing simply to purge the concept of marriage as such, as distinguished from civil union, from state functions altogether.  Why not, in other words, assign the '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 reserve the function of recognizing people as 'married' to the church or temple, which latter of course have criteria of their own?  Isn't there something even, dare I say it, 'intrusive' about the state talking about our sacrament? 

I should perhaps emphasize that I am not here actually advocating any such measure, or this point of view that leads me to contemplate it.  I am only wondering about it -- whether it would be feasible, and whether it would even be desireable 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. 

Because so much of modern life -- particularly as a religious adherent in a non-theocratic, pluralistic polity -- involves such 'compartmentalization' already, however, it isn't altogether clear to me that simply dissagregating currently muddled 'marriage' into state civil union and ecclesial sacramental marriage components reserved to their respective spheres would appreciably increase the degree to which we already fall short of 'seamlessness' in our 'modern' lives.

What do y'all think?  

All best,



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