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Scott P. Richert

Can the State Redefine Marriage?

By June 28, 2013

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On June 26, 2013, the U.S. Supreme Court struck down the section of the Defense of Marriage Act that declared that, for the purposes of federal benefits and the federal tax code, marriage is defined as the legal union of one man and one woman. DOMA had been passed by a Republican Congress in 1996 and signed by President Bill Clinton in response to growing concerns over the possibility that some states might extend the definition of marriage to include unions of two partners of the same sex. In the intervening 17 years, through court decisions, legislative action, or ballot proposals, 14 states have done just that.

Over the same period, the United States has undergone an unprecedented cultural shift, and public-opinion polls now indicate that a plurality or even a majority of Americans support "gay marriage." While the Supreme Court is supposed to interpret legislation in light of the U.S. Constitution, it has for decades now functioned more as an agent of social change, reflecting trends in the broader culture rather than safeguarding the American constitutional tradition. And so the DOMA decision came as no surprise to anyone who was paying attention.

While the Court's decision does not actually redefine marriage to include unions of partners of the same sex, it does compel the federal government to accept, for the purposes of federal benefits and the federal tax code, state definitions of marriage that include homosexual unions. And given that President Obama, in May 2012, endorsed "gay marriage" (in a reversal of his position in his 2008 election campaign), the writing is on the wall. More states will redefine marriage to include homosexual unions, and the federal government will endorse and ratify such actions.

Missing, however, from both the Supreme Court's decision on DOMA and from the public debate over "gay marriage" is any discussion of what should be the central question: Does the state have the authority to redefine an institution that extends back to the sixth day of creation, in the Garden of Eden—an institution, in other words, that not only predates the modern state, but predates government itself? Or, to put it another way, if the state says that the definition of marriage includes unions other than those between one man and one woman, does that make it so?

From the standpoint of the Catholic Church, the answer is a resounding "No."

Pope Leo XIII, in his 1880 encyclical Arcanum, made this point abundantly clear. The definition of marriage was written into nature itself by God at the creation of the human race, and it was confirmed and renewed by Christ Himself when He "raised marriage to the dignity of a sacrament." The state can recognize the reality of marriage and act to strengthen it or to undermine it, but it can no more change that reality by legislation than it can change the law of gravity.

Because marriage predates the state, the marriage contract predates civil law. It is a contract between the spouses (and, more broadly, between their families). The state is free to recognize that contract, and even to give it special status in civil law; but doing so does not give the state the authority to declare that something which is not marriage (the union of two men or of two women) must be accorded the title of marriage, any more than the state has the authority to declare that up is down, and left is right.

Furthermore, as Pope Leo points out, any authority that the state has over the marriage of Christians is conditional, and it depends upon the willingness of the Church to allow the state to regulate those marriages. God ordained the institution of marriage; Christ confirmed it; and "Christ, therefore, having renewed marriage to such and so great excellence, commended and entrusted all the discipline bearing upon these matters to His Church. The Church, always and everywhere, has so used her power with reference to the marriages of Christians that men have seen clearly how it belongs to her as of native right; not being made hers by any human grant, but given divinely to her by the will of her Founder" (emphasis mine).

Yet the state is claiming the Church's authority for itself, and a significant number of Americans, including a significant number of self-identified Catholics, are going along with the state's redefinition of reality. And that is why, as I argued in a piece on CrisisMagazine.com ("Where Do We Go From Here?"), the Church must reassert Her moral authority over marriage by divorcing true marriage entirely from the state.

All it would take is for the Catholic Church in the United States to say that those who wish to be married in the Church will no longer be required (as they are today) to seek a license from the state before the Church will marry them. Those who want to obtain such a license (for tax purposes and other benefits) would be free to do so, but the Church would no longer regard that license as having anything at all to do with the reality of marriage. By that simple act, the Church would make it clear to all that, in the eyes of the Church, the state has no authority whatsoever to redefine marriage.

What do you think? Should the American Catholic bishops take this—admittedly drastic, but in my opinion necessary—step? Read my whole argument over at CrisisMagazine.com, and then come back here and offer your thoughts in the comments.

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Comments
June 28, 2013 at 9:17 am
(1) cminca says:

“Does the state have the authority to redefine an institution that extends back to the sixth day of creation, in the Garden of Eden—”

First of all, if you are going to make an argument about civil rights and law in the year 2013 you shouldn’t start your argument with a fairy tale.

“Or, to put it another way, if the state says that the definition of marriage includes unions other than those between one man and one woman, does that make it so?”

In secular, civil law–if executed according to the laws governing the state–the answer is yes.

“From the standpoint of the Catholic Church, the answer is a resounding “No.”"

Which has absolutely no bearing on the civil, secular laws of a pluralistic democratic republic.

Thank God.

June 28, 2013 at 11:42 am
(2) JohnH says:

The proponents of civil unions or “gay marriage” are doing it solely as the expedient way to gain benefits and/or entitlements from civil authorities or agencies that those civil authorities have accorded to married couples.
There is no need to re-define marriage just change the IRS rules the SSA rules and agencies of the government to afford civil unions the same benefits and entitlements. These actions would of course require legislative action but would be as constitutional as the creation of the agencies themselves. This course of action would of course be more arduous and time consuming than the simple expedient of re-defining marriage.
“Render unto Caesar what is Caesar’s and render unto God what is God’s

June 28, 2013 at 1:24 pm
(3) Gatomon41 says:

@ cminca:
Scott does not begin with a fairy tale – he begins with an ancient allusion – that marriage goes so far in the back prehistory, long before men had even came up with the concept of a political concept of even the “tribe”. Low before the concept of Law was in existence, we had the concept of Marriage.

And there’s a difference between Fairy Tale and Myth. At least know how to use the term properly before using them.

The state (or should I capitalize it as “State”? It seems some now worship it as their new idol) can no more redefine marriage than it could redefine 2+2=5 or if a person is one-third of a citizen by mere declaration – it is an affront to reality and justice. Secular laws are not always right, and to say just because it is “Secular” doesn’t mean it excludes the moral aspects.

Nor does it man a “civil, secular laws of a pluralistic democratic republic” is free to whore out justice and pervert rights to justify corruption. All too often Democracies have voted fools into power, created laws that destroyed others, and end up ruining themselves for forgetting about Truth. All too often they cease being Democracies, and become either mobs or taken over by tyrants.

And it always foolish to disregard the wisdom of theologians and philosophers, and to defer to those who know nothing but law. Judges and Politicians are the worse kind of people to decide moral judgements. They end up making the same mistakes as Pilate did.

June 28, 2013 at 1:26 pm
(4) Gatomon41 says:

@ cminca:
Scott does not begin with a fairy tale – he begins with an ancient allusion – that marriaqe goes so far in the back prehistory, long before men had even came up with the concept of a political concept of even the “tribe”. Long before the concept of “Lawss” we had the concept of Marriage.

And there’s a difference between Fairy Tale and Myth. At least know how to use the term properly before using them.

The state (or should I capitalize it as “State”? It seems some now worship it as their new idol) can no more redefine marriage than it could redefine 2+2=5 or if a person is one-third of a citizen by mere declaration – it is an affront to reality and justice. Secular laws are not always right, and to say just because it is “Secular” doesn’t mean it excludes the moral aspects.

Nor does it man a “civil, secular laws of a pluralistic democratic republic” is free to whore out justice and pervert rights to justify corruption. All too often Democracies have voted fools into power, created laws that destroyed others, and end up ruining themselves for forgetting about Truth. All too often they cease being Democracies, and become either mobs or taken over by tyrants.

And it always foolish to disregard the wisdom of theologians and philosophers, and to defer to those who know nothing but law. Judges and Politicians are the worse kind of people to decide moral judgements. They end up making the same mistakes as Pilate did.

June 28, 2013 at 2:10 pm
(5) Salvy says:

I’ve been telling anybody who’ll listen for a long, I don’t care who they are, that no matter how many stupid laws they want to pass it’s Adam and Eve not Adam and Steve–(like Jerry Fallwell used to say)–and it’s not Barbara and Eve either, and it’s not even Wilbur and Mr.Ed.
I tell these clowns that if you can convince me that you know more and better than God almighty himself creator of the universe, then I’ll fall down flat on my face and start worshipping you since you’re greater than God.

June 28, 2013 at 2:23 pm
(6) Joe Justice says:

In many other countries, a couple must be married civilly before being married by the Church. In this country the priest or deacon is acting in the name of the Church AND the State at the time of the wedding. I believe we should adopt the practice of having a couple get civilly married before the Church marriage. I do not think that simply ignoring the civil status is a good idea. Civil marriage makes the union a public record. This has important advantages: Previous marriages can more easily be investigated. Many times prospective spouses do not know if the their intended has been married before. This is also especially important in the annulment process.

June 28, 2013 at 3:56 pm
(7) Michael Kudla says:

State has no standing to define marriage. “The State” is the enemy of God given rights. The founders of the USA realized this and produced a constitution that is SUPPOSED to limit the power of that heinous creature called “The State”

June 28, 2013 at 6:55 pm
(8) HFH says:

This decision/intrusion will have enormous and ominous consequences
for the Church. It’s most frightening. The Left intend to destroy the Church, and Christianity, I believe. This, combined with the amnesty the Left want, will hasten the coming persecution. If the Church refuse to marry homosexuals, which it certainly must, the onslaught will then begin. Pray hard and long. And write and call your congress-people. Nothing less than the future of the nation and the Church are at exceedingly high risk.

June 29, 2013 at 10:08 am
(9) GK says:

Excellent idea. The church should not require a state marriage license any more. If the state comes back to it’s senses, reinstate the requirement for a state marriage license. Many/most people will get the state license for legal/tax reasons, but a few will not. That says everything!

God bless Scott and the Holy Church he represents! The sacrament of Marriage is worth protecting as what God intended and what Christ confirmed.

June 29, 2013 at 7:56 pm
(10) Gary says:

Along the same lines, in states that have elevated same sex civil unions to marriage, why not advocate the removal the word “marriage” from their state laws? In reality, many of today’s opposite sex “marriages” are really just civil unions anyway. That would leave people 3 options with 2 involving the state: 1) civil union only, civil union & marriage within your church, temple, or mosque, or 3) marriage within your church, temple, or mosque.

July 3, 2013 at 3:25 pm
(11) John says:

Why are you people so upset over a word? Hindus get married and your special god who you claim invented it isn’t their god … but your let THEM get married. The “left” doesn’t want religious institutions to perform marriages. Who cares! Do what you want. We are solely concerned with civil/secular law and the notion that all are created EQUALLY under the US Constitution. Who or what gives Christians the right to determine what marriage is to everyone? Even to heterosexual Muslims, Jews and Buddhists, what authority do you claim other than a patchwork collection of inconsistent, myths and fables that have never been proven (not even Jesus) to be true? The Church got pretty much everything ELSE it ever said WRONG — issues on science, astrology, slavery, witchcraft, and yes, even marriage — (we no longer marry 10 wives!), so why should anyone take stock in THIS issue? In a democratic, free country, not everyone should not be subject to YOUR religion. You have the freedom to practice it as you wish, but keep it out of my life.The “right” is sooo concerned about Sharia law being adopted, but have no problem forcing Canonical law down everyone’s throats. And I do not want to hear arguments about a Judeo-Christian moral system that the US was founded on. What other morals are Judeo-Christain exclusively that are not found in other societies? Any social/ethnic/religious group on the planet frowns upon murder and theft! How many innocent people did god kill in the Bible? When you can prove your god exists, THEN and only then can you pass judgement. Have a nice day!

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