Church and State

In light of recent legal developments in the United States, a question in law called ‘rational basis’ has seen a lot of discussion both by legal scholars and in the general public. Rational basis is the least stringent test for determining whether or not a law restricting people’s behaviour meets the due-process requirement of the Fourteenth Amendment to the US Constitution. The stricter level of scrutiny revolves around something called ‘compelling state interest’, but it can be generally held that if a law does not stand up to a rational basis test it will not stand up to a compelling state interest test either, simply because rational basis is the lowest and loosest level of scrutiny in such cases[*].

            In the case of the recent developments in case law, which have occurred mainly in the US District Court for the Northern District of California in San Francisco but also in the US Court of Appeals for the First Circuit in Boston, the rational basis and compelling state interest tests have been much discussed as regards the institution of civil marriage. The immediate question at hand is ‘Is there a rational basis for or compelling state interest in restricting civil marriage to couples of the opposite sex?’; the broader question that has to be answered first is ‘What is the state’s interest in registering marriages anyway?’

            Marriage was for most of human history a distinctly ad-hoc and theocratically organised institution—as, indeed, were most institutions, including government itself (the nation-state emerged as a concept in the sixteenth and seventeenth centuries and was only substantially divorced from the religious authorities of the country in question from the eighteenth century onwards). Religious organisations performed nuptials, which were then granted a certain legal cachet by relevant authorities, chief among which were property exchange and heritability and, in the next generation down, the right to not have to inquire too deeply into who exactly one’s parents were. This system, since it was administered by religious law, was (and in many jurisdictions still is) defined solely in religious terms. Common church interests in marriage (in Europe) included legitimising sexual behaviour, keeping track of family units for the purpose of parish registers, and advancing what was seen as a series of divine mandates related to reproduction and biological parenthood. Obviously, these interests were at the time and to a large extent even to-day only served through the marriage of opposite-sex partners.

            When it became clear that the state had interests in marriage that were not identical to those of religious bodies, civil marriages came into vogue as a legal concept. And civil marriages are what is being discussed currently in the United States. Religious marriages are generally recognised by the government but civil marriages need not be (and often are not, for any number of reasons) recognised by any church. Both because of this system and contributing to its continued existence, the state does have interests in marriage, but many of them are very different from those of the churches.

            The main state interest in marriage is to keep track of family units. While not all family units are headed by married couples, the institution nevertheless does a major service in that it creates many, many households in which people live together in a way that state census workers or demographic bean-counters can easily understand and work with. This may not seem very romantic or even very respectful of the diversity of human relationships and experience, but again, we are discussing state interest here. It is not bound to be idealistic.

            The second state interest that comes to mind, which was mentioned in the California court case, has to do with public health. Marriage as an institution provides a number of psychological health benefits—and physical health benefits considering that doctors and insurance companies usually deal with married couples differently than they would deal with two unaffiliated people (you may like this or you may not, but it is so). It fosters a sense of stability and family identity, at least in the best case scenario, and even in the worst case scenario (or second-worst, since the worst case is divorce which is notorious for screwing up demographic studies) married people live, on average, several years longer than unmarried people. Of course, in situations of abuse all of these health and security benefits are flipped around and turn into an absolute nightmare, but that is why divorce exists (though not why it is most often used, because we live in a fallen world and adultery is distressingly, horrifically common).

            The third main state interest is to provide a (relatively) safe environment for the raising of any dependents—biological or adopted children.

            Elaborating on these three main state interests, it can be argued that the underlying reason why the state is so interested in marriage is that civil marriage provides a way for the government to reward serious, committed partnership as a social and civic virtue. Since it cannot use a carrot-and-stick approach, because things like criminalising premarital sex and dangling contraception over the citizenry’s collective head are unconstitutional and plain wrong, it has the duty—to itself, if it is to be serious about its claimed interest in advancing partnership as a civic virtue—to give the carrot as broad an appeal as possible without compromising its central nature.

            The central nature of marriage, as religiously defined, usually involves various combinations of several basic rules: rule of opposites (the basis for opposition to gay marriage, in other words), rule of one-on-one relationships (even if multiple relationships are arranged around one axis like the spokes on a wheel), rule of sex, et cetera. This was the definition of marriage that the proponents in the California case have been advancing, and it is a definition that the district judge struck down for being religious in character.

            The civil definition of the central nature of marriage involves several other rules: rule of two (polygamous relationships do not count as ‘two’ for these purposes but so-called ‘open relationships’ do since the additional sex partners are not supposed to be part of the marriage proper and the government is not in the business of using a stick against consensual sexual behaviour), rule of partnership (not rule of sex, because there are many fine citizens who have no interest in sex but can love very deeply and may wish to adopt children), and, insofar as the state has a purely mercenary interest in sustaining married households for the purpose of more easily collecting census data, rule of homestead. These rules are not romantic. They are not what you or I probably think of when we think of our reasons for wanting to marry. They are the state’s reasons. As far as the machinery of the state is concerned, the reasons why you or I might want to marry fall into the category of intangible and indirect public-health benefits. We mustn’t take this as a rejection of our ideals or our hopes and dreams and wishes for the future on the part of the state. It is simply how the state operates. The church operates on a somewhat more emotional grounding, which is why most of us, here in America, still choose to get married by a religious official.

            If we are given the option.

            Because same-sex couples have exactly the same personal hopes and dreams, and exactly the same relevant-to-the-state’s-interests rights and responsibilities in a relationship, as opposite-sex couples do, but they may not, depending upon the denomination, meet a religious definition of what constitutes a ‘traditional’ bond of marriage. And this is, though we as people with our own beliefs may or may not agree with it, perfectly fine from a legal standpoint, because again, while most religious marriages end up with state recognition, religious bodies have no duty to recognise civil marriages or religious marriages from other denominations. If I wanted to marry a man (which I personally do not and never will) I could, in my state, get married in an Episcopal church or in the local clerk’s office. The RC church in another part of town would be under no obligation to recognise this state of affairs. And that is fine. That is the Roman Catholic Church’s right under orthodox interpretation of the First Amendment. The problem arises when I go to a state like Texas or Nebraska or, sad to say, even Michigan or Ohio. In these states, if I want to marry a man I cannot, simply because he is a man. Buying into the religious definition of marriage, trusting religious bodies implicitly to set civic rules for this institution long after that has been official policy or even permitted in any remotely relevant situation, places like these advance as the official position of the state a horrific idea that not even the church is willing to unquestioningly co-sign any more: same-sex couples are not capable of forming a functional household, raising a functional family, or discharging the rights and responsibilities that are attached to the civic virtue of partnership. And in other states there is a rank stink of hypocrisy, the position that The Gay can be trusted with these rights and responsibilities, but not unconditionally, not universally (never mind that apparently a lot of straight people cannot be trusted with them either and yet still in fact are), and not under the same ancient, puissant, dignified, elegant name, that of the marriage union, the nuptials, the hymeneal altar, but instead under some clinical, cut-down term like ‘civil union’ or ‘domestic partnership’. This is not just a matter of semantics. It is the state using the English language to declare that gay people are good, but not as good, in terms that not even the church would dare try to get people to accept.

To the high and mighty krytocracy of our rights, the sometimes grumpy, sometimes happy, often profligate, and occasionally wise men and women who walk under that Vermont marble to rule on our most cherished civic principles, I say: uphold Vaughn Walker’s ruling. Uphold Joseph Tauro’s ruling. Render unto God what is God’s. Render unto Caesar’s what is Caesar’s. And render unto dignity and love what is dignity’s and what is love’s.

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[*] There is also an intermediate level of scrutiny, in which it must be shown that a ‘reasonable’ state interest is substantially furthered by whatever the law in question mandates, but nobody seems to talk about that one.