The Audacity of Definition

All of this discussion has made me think again about marriage issues and the Church(es).  It isn't easy to find information on the intertubes, but what I found is interesting.

Start with what Dan Cathy said to the Baptist Press:

 "We are very much supportive of the family -- the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that.

However, he also, in a different forum, said this:

"I think we are inviting God's judgment on our nation when we shake our fist at Him and say, 'We know better than you as to what constitutes a marriage,' and I pray God's mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to try to redefine what marriage is about,"

And that's what got my attention; the "audacity to define what marriage is about."

What is marriage about?

In Texas, at one extreme, marriage is clearly only about the community property estate.  The Texas Family Code is primarily concerned with two things:  who owns the property, and who is responsible for the children.  To that end, a couple doesn't even need a marriage license or anyone authorized by the State of solemnize the rites of marriage, in order to be married.  Texas allows for "Common law" marriage, which means simply if you represent yourself as married, you are.  End of discussion.  In my time as a family lawyer, I never had to show the judge a marriage license in order to obtain a divorce for a married couple.  There would have been slightly different language in the petition for a common law marriage (I think we even had one in the office when I was practicing), but no higher standard of proof for one than the other.  Texas law was only concerned with one thing:  who gets what property, and who is gonna be responsible for the kids.

End of discussion.

Is that "Biblical marriage"?  Is that "the audacity to define what marriage is about"?  Seriously; I"m asking.  I'm guessing Cardinal Roger Mahony wouldn't like it:

Chick-fil-A president Dan Cathy has consistently backed "the biblical definition of a family," and his foundation has contributed to groups working to maintain the traditional definition of a marriage--one man and one woman.  He later added, "I think we are inviting God's judgment on our nation when we shake our fist at him and say, 'We know better than you as to what constitutes a marriage'."

Neither, probably, would Francis Cardinal George:

Both Church and state do, however, have an interest in regulating marriage.  It is not that religious marriage is private and civil marriage public; rather, marriage is a public institution in both Church and state.  The state regulates marriage to assure stability in society and for the proper protection and raising of the next generation of citizens.  The state has a vested interest in knowing who is married and who is not and in fostering good marriages and strong families for the sake of society.

Because common law marriage in Texas doesn't involve any church at all, nor even any public ceremony.   I'm sure the condemnation of this state of affairs, which goes back well over 100 years in Texas, will bring down the public condemnation of Chick-Fil-A and the Roman Catholic church as soon as somebody bothers to be outraged by it.  Or maybe not.

I am left wondering, though, what a "Biblical definition of a family" is.  Or of marriage, for that matter. We could, at this point, disappear into a discussion of marriage under the law of Moses, or point out the multiple wives of the Biblical patriarchs, or even the custom of having a child by the wife's handmaid, which gave us Ishmael and Moby Dick.  Lots of definitions of "family" there, especially with Abraham deciding to send Hagar and Ishmael packing.  And don't get me started on Jacob and Esau, or even Cain and Abel.  And who married Adam and Eve?

Okay, descending into the silly, now.  But seriously, what consistent thread is there for marriage in the Bible?  There is the example of the one bride for seven brothers in Mark 12:8-27, Matthew 22:23-33, and Luke 20: 27-40.  There was a very good reason for that law at that time:  it protected women from being without a husband.  And if you don't think that was a live issue in many cultures, read "The Wife's Lament" and get back to me.  Often it was better to have some husband than no husband.  But is that the "Biblical marriage" we should adhere to?

And what about divorce?  Jesus wasn't too big on the allowance of divorce available in Mosaic law according to Matthew 19:3-15, and that passage was often cited as a reason not to be to free with divorce under civil law.  Of course, today, at least again in Texas (where I know the most about the law), divorce is no longer a matter of establishing grounds and showing, essentially, a breach of contract.  Tell the judge in the paperwork that your marriage is unsustainable (and it's boilerplate language; nobody wants to know the details of your broken marriage), and the only question is:  who gets what property, and who's responsible for the kids?  Have we broken with "Biblical marriage" by making divorce so easy?  Is God angry with us as a nation because of no-fault divorce proceedings?  Am I going to hell for helping that system function efficiently?

I really don't think so.

But what is this "Biblical definition of a family" that we are supposed to adhering to?  What is the "definition" of marriage we shouldn't have the audacity to change in any way?

I'm glad you asked that.  Because the answer, the real reason for the despair of Dan Cathy and the difficulty facing Cardinal Mahony and Cardinal George, is one that goes back at least 500 years.

This is where it gets interesting:

Botham frames her book with discussions of Perez and of Loving, but the core of her discussion is an exploration of the very different views of the institution of marriage held by Catholic and Protestant denominations. She traces that divergence to the sixteenth-century Protestant Reformation, where in an attempt to limit the power of Rome, Protestant communities reconceptualized the idea of marriage. On the one hand, “the Roman Catholic Church alone affirmed the doctrine of the sacramental nature of marriage--the rite of matrimony as an instrument that conferred grace upon the couple” (p. 6). Protestants, on the other hand, “insisted that marriage was sacred, but not a sacrament. Therefore, since marriage was an earthly rather than heavenly institution, civil rather than ecclesiastical authorities should oversee marriage law” (p. 7). Even a civil ceremony conducted before a magistrate in a city hall without benefit of clergy could be considered valid.

This non-sacramental view of marriage became firmly established in America through the proliferation of English common law and as a result of the Protestant hegemony in the colonies and in the Early Republic. Moreover, issues surrounding the conditions of or the impediments to marriage were considered unambiguously to fall under the purview of the state, not the federal government. With the rise of race-based laws, the ability to assign an individual to a particular race category became of paramount importance, and miscegenation laws--designed to discourage racial mingling--were adopted throughout the country on a state-by-state basis. Botham’s handling of the intricate interweaving of biblical beliefs and legal assumptions is particularly strong.

That's from a book review, so it's necessarily third hand information, but it's a useful capsule summary of the differences between Protestants and Roman Catholics on the question of marriage, and on why there were so many miscegenation statutes (with criminal penalties, no less!) in America before 1967.  It's also an important point, so let's linger on it a minute, because the argument I grew up with was that sex outside of marriage was a sin, while marriage itself was...well, it was something you did in church.

Not because anybody told me so, but because that's where everybody went.  Only much, much later did I learn to distinguish a Protestant marriage from a Roman Catholic one, on the basis of theology (!).  And you see, what happened was, the Protestants took over and ceded the definition of marriage to the state (except for that sex part, which became such an issue in the Sixties, thanks to the Pill.  Or maybe just to Trojans.  Hard to be sure, really.).  Basically to Protestants marriage was sacred, which meant no serious stuff before the pastor made you say "I do."  It kind of held marriages together against divorce, too, until it didn't.  But the point is the Protestants "reconceptualized the idea of marriage."*  And then civil society, the non-religious part of it, or at least the part not that constrained by theological concerns, reconceptualized it again.  And as long as that mean "common law marriage," even Baptist/Methodist/fundamentalist Texas didn't really mind.  But the moment it meant "same sex marriage," well...all hell broke loose.

And the question remains:  why?

I don't know of any church that openly sanctions common law marriage.  It clearly wouldn't accord with Roman Catholic ideas of a sacrament, but it's not exactly sacred under any Protestant doctrines I'm aware of.  Still, nobody considers it the end of marriage as we know it, or an infringement on our religious liberties, or a harbinger of the end of days.  Why not?  Mostly because nobody is making any of those arguments about it.  Texas is now the second most populous state in the country; you might think this issue would matter, as it applies to more people in the U.S. than any other state except California (which, also being a community property state, may have essentially the same laws.  The idea is to protect the members of the community property estate and the children; and nothing more.  Aside from not marrying your first cousin, Texas doesn't really care what your marriage is about.)


Now let's stop a moment and go back to something said earlier:

The state regulates marriage to assure stability in society and for the proper protection and raising of the next generation of citizens.  The state has a vested interest in knowing who is married and who is not and in fostering good marriages and strong families for the sake of society.

Now, from a lawyer's point of view, that's about half-right.  The state may profess an interest in strong families and good marriages, but it isn't really interested in doing anything about either one.  The state is concerned with who will care for the children until they reach the age of majority (not unlike anti-abortion activists who seem to care about the "child" until birth, and after that?  Good luck, kid!), and in general is largely interested in making divorce as simple as possible (and it's not simple, even in Texas.  I've seen divorce proceedings drag on so long the wife got pregnant by her boyfriend and was going to deliver while the divorce was pending.  Texas law presumes a child born during a marriage is the child of the husband, and everybody agreed that wasn't the case here, especially the husband.  How to handle that was a particularly interesting legal challenge.  The complication that dragged the case out so long was, as usual:  how to divide the property.).  None of which is really about "fostering good marriages and strong families for the sake of society."  It is, however, about taking care of people (children) and maintaining some stability in the possession of property, particularly real property.   At this point I suppose I should mention that marriage in Europe was once all about real property:  the public ceremony took place on the church steps, where all the landowners could watch titles be transferred between the bride and groom.  Once that was done, the happy couple went inside for the sacrament of marriage, and the guests went to the party.  Marriage was about procreation, but it was really about property.  Procreation meant the property would pass, in an orderly fashion, to another generation, and thus would society remain stable.  Again, I'm not sure how "Biblical" that was, but there you are.

And, once more with feeling, the logic behind Texas common law marriage is that what is important is the creation of a community property estate, mostly for the protection of women (a more necessary protection 60 years ago than it is today, but still not a bad idea) and of the children of any such union.  The interest in the children is as old as medieval Europe:  the state is not only concerned with their welfare (at a minimum), but also with inheritance rights.  The State, as ever, has a vested interest in who owns what property, especially real property; and, as ever, abhors a vacuum in ownership, especially in property owned through title records.  At some point that becomes a matter of "fostering good marriages" (what's the difference between two people "living together" for 30 years, and a formally married couple celebrating a 30th anniversary, from the state's point of view?) and "strong families for the sake of society;" but only through regulation of child support and property ownership.

Which doesn't strike me as a clearly "Biblical" concept at all; certainly not if you limit "Biblical" to the teachings of the gospels.

Interestingly, though, the argument there is a familiar one:  marriage is, at least in part, for the sake of the children.  Don Browning made that argument in making "The Liberal Case Against Same-Sex Marriage."   Browning argues against same-sex marriage because:  "It changes the definition of marriage."   How?  "It reduces marriage primarily to a committed affectionate sexual relation."  That, as we will see, is not so far from the defense of traditional marriage made by Francis Cardinal George.  But why is this central to the idea of marriage?  "The legalization of same-sex marriage may give public codification to modernity's march toward breaking apart these goods sex from love, sex from procreation, and parenting from procreation. It finally changes the logic of marriage."  Marriage, you see, is about controlling sex and so stabilizing society (an idea that goes back to Ovid, at least), and it's about procreation.

Same-sex marriages can't procreate, you see.

Leave aside the question of adoption a moment, and face the real issue being expressed by Browning, and by many critics of same-sex marriage:  "Won't anybody think of the children?"  Which is an interesting issue, because while the bulk of the Texas Family Code is about child care and child support, there is nothing in the Texas Family Code that says a marriage must be ended because the couple is childless.  Indeed, who would wish such a thing?

Does the Catholic church pressure childless couples to divorce?  Of course not.  But procreation, or at least the possibility of procreation, is clearly foundational in Catholic conceptions of marriage:

Marriage exists because human nature comes in two complementary sexes: male and female.  The sexual union of a man and woman is called the marital act because the two become physically one in a way that is impossible between two men or two women.  Whatever a homosexual union might be or represent, it is not physically marital.  Gender is inextricably bound up with physical sexual identity; and “gender-free marriage” is a contradiction in terms, like a square circle.

Why is gender bound up with marriage, if not because it takes a man and a woman to produce a child?  That is not an illegitimate argument, but neither is it really the touchstone of marriage, because otherwise all childless marriages are not true marriages.  So it isn't that married couples must produce children; it isn't even that they must be capable of producing children (infertile couples are not required to move heaven and earth to have children, and Catholic couples aren't even allowed to pursue in vitro fertilization; at least, not officially).   Now, of course, there is a dodge here.  Elderly couples can, presumably, marry in the church.  They are still capable of making "one flesh," as the Cardinal argues, but that's because the cardinal approves of how their genitalia fits together.  So you don't have to be able to create a child, but it has to be possible; except when it isn't.  But that "isn't" is less important when it involves a male and a female, and more important when it involves two males or two females.  You see?

Good; because I don't.  There is an odd thing in this argument, actually, and it's this presumption:   Is marriage really just about sex?  Is that truly the touchstone by which marriage should be measured?

Personally and theologically, I find that an indefensible position.  But no matter, let us pass on to the issue, which is what children have to do with marriage.

Do we consider the marriages of childless couples less legitimate than those of couples with children?  We shouldn't (and, at least publicly and generally, we don't).  But the most common argument made about changing the definition of marriage, is that the change will adversely affect the children.

It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems then those of the intermarried and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.

....

Now if the state has an interest in marriage, if it has an interest in maximizing the number of stable marriages and in protecting the progeny of interracial marriages from these problems, then clearly. there is scientific evidence available that is so. It is not infrequent that the children of intermarried parents are referred to not merely as the children of intermarried parents but as the 'victims' of intermarried parents and as the 'martyrs' of intermarried parents.

That is the argument of the assistant attorney general of Virginia, defending Virginia's miscegenation statute before the Supreme Court in Loving v. Virginia.  Sounds very curiously like the argument being made by Don Browning and by Cardinal George.   It's worth noting such children were "victims" and "martyrs" because they were generally regarded as illegitimate and thus, like Edmund in "King Lear," were barred from inheriting their parents' property. That they were illegitimate was a matter of law, of course, not of societal disapproval; so it was rather a self-made Catch 22.  But no matter; having declared the children of miscegenation illegitimate, the state had a duty to protect future children from that sad, state-mandated, fate.

We have to realize that the argument being made on behalf of Virginia was still, in 1967, as credible as it had been in the 19th century.  The only difference is that the state of Virginia in 1967 uses the language of science ("the psycho-sociological aspect of this question"), while the Supreme Court of Georgia used the  language of religion in 1869 to defend its miscegenation statute:

"...moral or social equality between the different races...does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. There are gradations and classes throughout the universe. From the tallest archangel in Heaven, down to the meanest reptile on earth, moral and social inequalities exist, and must continue to exist throughout all eternity."

While Alexander Pope would certainly approve of such reasoning, I wouldn't call the court's, or Pope's, language theological. It is at best religious.  And we could all say "That was then, this is now."  Except "then" is not 143 years ago, but only 45 years ago:

 “Almighty God created the races,” Bazile wrote, “white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages.”

That's from the lower court opinion that went to the Supreme Court in Loving v. Virginia.  It's only dicta, and its remarkably racist, but it's also in line with legal reasoning on that issue that went back almost 100 years at the time.  No one would expect either that kind of racist language from the courts, nor that kind of religious language, either.  Our thinking about race and marriage has, thankfully, changed.  Which means we've been busy deciding what constitutes a marriage for some years now, and I doubt there are many people who would disagree with the results so far.  Some might object that divorce is too easily obtained; some might even object to mixed race marriages, and both objections could be based on religious arguments.  It's doubtful those arguments would get very far, though.  Of course, many would still argue it is "interference" with God's "arrangement" to allow for same-sex marriages.

And perhaps it is, from a church's point of view.  That is as should be, and one reason we have so many denominations and religions.  We have, however, only one state (well, per geographic designation), and so can have only one law on marriage per state.  What should that law be, taking into account the state includes so may different opinions?

The irony here is that the Protestants decided, by and large, to leave the issue of marriage to the state; which worked fine when Protestants could control the state.  Luther had his German princes; Calvin had Geneva; Elizabeth I had England, but when the Puritans found that too distasteful, and the people of England found the Puritan reign too distasteful, they had to decamp to Plymouth Rock to run things their way.  And their idea of church/state being conjoined led, among other things, to the founding of the colony of Rhode Island, where no church could be in charge.  In general, though, at least until the Supreme Court discovered the idea of a "wall of separation," Protestants were pretty much able to run society in line with their preferences (I emphasize Protestants because Roman Catholics weren't allowed to get much of a national foothold in American politics, as witness the concerns that JFK would take orders from Rome).  But with the "wall of separation" cases, that control began to break down (and historically speaking it had already broken down; the Supreme Court, like the Congress, follows the lead of the people; it never creates it).

I grew up with the change from prayer in schools to no prayer in schools, and honestly, I don't remember the transition as a difficult one, even though I lived in Southern Baptist East Texas.  Maybe it was because my hometown had a Jewish synagogue (about the only one in East Texas, AFAIK), and a Roman Catholic church and high school, despite the dominance of Baptists.  Maybe; but the Baptists predominated,so that seems unlikely.  I don't really remember praying in schools, though my friends do.  All I remember is reciting the Pledge of Allegiance every morning.  This was, however, still a hot button issue just a few years ago, and every once in a while someone tries to tie all the problems of the nation to the exclusion of prayer from public schools, so perhaps it's fair to say there all our troubles began.

It was certainly the line of demarcation between church and society, although at the ground level church was only ever a force in society in the most general and amorphous terms, and a great deal of what people I grew up with took as "Biblical" was actually just ethical in the Aristotelian sense, i.e., it was the accepted conduct of the community, with no more basis in the Scriptures than the Nichomachean Ethics has.  Still, when it became perceptible that the church was no longer in complete harmony with the state, the problems began.  Divorce; prayer in schools; mixed race marriages; these things may not have had official church sanction or been rooted in official church doctrines, but they were defended in religious terms, and the changes in them were taken, by the laity if not the church hierarchies, as a falling away from the Bible, if not directly from God.  And you still hear that language today, as witness the statements by Dan Cathy that prompted so much controversy.

This is not a problem limited to evangelicals and fundamentalists:  "The State’s attempting to redefine marriage has become a defining moment not for marriage, which is what it is, but for our increasingly fragile 'civil union' as citizens."  That's Cardinal George, again.  Is our "civil union" increasingly fragile because of same-sex marriages?  If so, then this business about Chick-Fil-A isn't a tempest in a teapot, after all.  But equally if so, then our "civil union" is fragile, indeed.  Obviously, I don't think it's that fragile.  One might as well agree with Dan Cathy that God's judgment is about to be visited upon us:

... because we have not acknowledged God and because we have not thanked God, that we have been left victim to the foolishness of our own thoughts, and as result, we are suffering the consequences of a society and culture who has not acknowledged God or not thanked God—he’s left us to a deprived mind. It’s tragic and we live in a culture of that today.

As I say, given the presence of common law marriage in Texas for over 100 years, that could be a fair description both of Texas, and maybe an explanation of our problems this whole time.  Funny nobody's made that argument yet.

It's all a matter of how you aim it, in other words.  Is it a "deprived mind" that decides "marriage" includes people living together without either the blessing of any church, or the public action of the state?  If not, why not?  Seems to me that redefines marriage as certainly as any acknowledgement of same-sex marriage.  But some definitions arouse our ire, while others go unremarked.  Why?  Largely because someone is outraged enough by the situation to arouse our ire.  If the outrage is new, we too are shocked, shocked!  to learn that we have entered this brave new world that can have such creatures in it!  If it isn't new, we wonder what there is to be outraged about.  Is anybody in the general public really moved anymore about the issue of prayer in schools, or of mixed race marriages, or even of easily obtained divorces?  Somebody somewhere is, but do we join in their outrage, or consider them foolish and behind the times?

None of which gets to the question:  what is marriage about?  Is it about procreation?  If so, are childless couples truly married?  Is it about property?  If so, "let us be lovers, we'll marry our fortunes together."  Is it about sex?  Or is it about creating a family?  And can family only mean Mom, Dad, and 2.5 kids?  If so, what interest does the state have in enforcing these things?  Is there more inherent social stability in Mom and Dad than in Dad and Dad?  Is society improved by couples procreating?  If so, should the state enforce reproduction, enforce fertility treatments, even break up childless couples and encourage them to re-marry and re-produce?

In the end, which sounds sillier:  to oppose same-sex marriage, or to make the state take seriously all the reasons for "traditional" marriage by making them more often come true?  Both involve changing current circumstances based on definitions of "marriage," but one seems a bit more tenable than the other.  The major challenge to our social order is our willingness to adapt to changing circumstances.  Protestants ceded the authority over marriage to the state some 500 years ago; that some of them may now regret that decision doesn't mean it's not too late to close the barn door.  People like Dan Cathy are welcome to try, but they are clearly swimming against the tide.  It may be surprising that Mr. Cathy's remarks provoked such a brouhaha, but that simply indicates how much times have changed, and how slowly, again, our institutions are catching up with the people.

Same as it ever was.








*And before them, Chaucer's Wife of Bath reconceptualized marriage.  No, seriously. You could look it up!