This occured to me while reading the recent threads on marriage, polygamy, etc. Standard apologies if it was already discussed somewhere and I overlooked it.
The Western concept of marriage being between one man and one woman seems to be a result of biblical laws and interpretation of biblical morality. If you remove the state-enforced religious morality from the picture, you are left with a property contract. Therefore, shouldn’t the separation of church and state require that state marriage laws based on religious laws be unconstitutional?
It just seemed to me that the fight to have same-sex and multiple-partner marriages legalized should be fought on this field rather than one of civil rights. The whole system needs to be razed and rebuilt from a secular standpoint with an eye firmly on current realities, not some religious fundamentalist’s nostalgic longing for a romantic golden age that never existed outside of fairy-tales.
I should probably do a lot more studying before posting this, but I figure I’ll get lots of dopers pointing me in the right direction if my logic is fuzzy.
The problem is how you determine which marriage laws were originally based on religion. People could defend them on a number of bases and claim that religion has nothing to do with it.
Now, do I think they had their origin in religion? Yes. Can I prove it? Not off the top of my head. Should we have some sort of partnership/property contract at least for those who can’t get “married”? I think so.
Good points. I’ll rephrase the question: can anyone come up with a convincing reason marriage should be only between one man and one woman without bringing up religious morality? The issue is one of state recognition, not church recognition, so keep in mind I am not trying to tell any religion who they can and cannot marry.
If a state enacts a law prohibiting anyone from marrying more than one person, it is unlikely that that would be unconstitutional even under liberal readings of the First Amendment. After all, all a state has to do is cite reasons for such a law that are not religion specific; not all morality is based in religion, after all. One such reason that could be cited is the perceived need to strengthen bonds between parents and their children. It doesn’t matter if you don’t agree with that reasoning; the courts will defer to the legislature of a state when it makes such a determination. This prevents the courts from substituting their own judgement on the issue (for an interesting read on this concept, look up ‘substantive due process’ in an encyclopedia).
BUT, if today a state adopted a law ALLOWING polygamy, or polyandry, or any other form of plurality in marriage, it is doubtful that such laws would be struck down, as they were back in the 1800’s by the US Supreme Court. In this day and age, we recognize that we can’t be quite so Christian-centric in our approach to what a state should or should not be allowed to do.
I’ve never been given a good, non-religion-based reason why the legal recognition of marriage should be so restricted, and I’ve asked that question many times, of many people. (Of course, I don’t accept “because that’s just how it is” as a ‘good reason’, so I’m probably setting overly-high standards.)
HOWEVER, many people will insist that their reasoning is not based on religion. For example, my co-worker insisted that homosexual marriage could not exist because no culture has ever allowed it. This had nothing whatsoever to do with his religion, you understand, it’s just human nature and the way the world works. :rolleyes: When presented with evidence that some cultures have indeed allowed it, he simply refused to believe the documentation.
Examples could be endless. People will come up with all sorts of reasons why their prejudices aren’t actually prejudices, but just the way things should be.
Erm, as I understand it, the concept of ‘separation of church and state’ does fall under the arena of civil rights. It’s based on the First Amendment prohibition against establishment of religion. My civil rights are violated when the government uses religion as a basis for law.
Proving that to a court, however, is an entirely different ball of wax, as other posters have stated. I believe that angle has been attempted, but without success.
I don’t have a problem with the main point being made, but I do have a little nitpick with one of the premises advanced.
It is my understanding- and I welcome any correction if I’m wrong on this- is that there is no prohibition against polygamy in the Bible, and that Christianity’s advocacy of monogamy was adopted from the civil standards of Roman society.
Of course, even if that is correct, it wouldn’t negate the likelihood that a lot of today’s defense of traditonal definitions of matrimony is based on religious grounds.
There are, contrary to some of the remarks above, some excellent reasons for civil law to recognize marriage that have nothing to do with religion. Quite simply, people fall in love, or think they do, and commit to spend the rest of their lives together, or reasonable facsimile, decide to start families, and all that sort of thing.
Net result: there are children whose upbringing is the responsibility of those who engendered them. There are people who have agreed to provide for each other’s needs.
Anyone with any experience in law or in human affairs whatsoever can list off dozens of situations where people don’t act like “the reasonable man” who is a legal fiction. People neglect to make, or to update, wills, and have the temerity to die and assume their wishes will be honored by their survivors. Couples break up and use the children as weapons against each other. In-laws behave like outlaws.
Without getting into specifics on whether alimony is a good idea, child support is too high, too low, or too anything, custody and visitation rights are appropriate, or who deserves what out of whose estate, the idea that there are laws that make appropriate provisions for people who fail or are unable to make provisions for themselves, such as intestate spouses/parents and small children of divorce, is a darn good one.
Now, whether the law should reflect any religious faith’s or the teeming millions’ personal viewpoints on what limits ought to be put on a marriage is a whole nother ball of wax. (It would be interesting to see the statute and case law that results from a legally sanctioned polygamy: “Section 43.6 In a polygynous marriage of one man with more than one woman, if each wife has children, the estate of the deceased man shall be divided as follows… But if there are one or more childless wives, then…”)
Just because I like to put a cat in amongst the pigeons…
The Metropolitan Community Church of Toronto (a gay Christain denomination) is contemplating circumventing the requirement for a marriage licence under Canadian law by publish marriage banns (announcements of intention to marry) that, under common law, can take the place of a government-issued marriage licence. If they succeed in doing so, existing governmental definitions of marriage as something that can only be entered into by one (1) man and one (1) woman may be over-turned on the basis of being in conflict with the common law right of churches to peform marriage ceremonies after having published marriage banns.
Is this what the marxist refer to as the contradictions inherent in the system working themselves out?
Ugh, I was afraid someone would ask for that… Ready for some 19th Century Constitutional Law?
The ‘Free Exercise’ clause of the First Amendment is the starting point:
Clearly, this restriction prevents the federal government from acting in a way that punishes a person for having a given religious belief. If I am a member of the Mormon sect of Christianity, I can’t be prevented from becoming a juror, for example, by that fact alone. This prohibition has been extended to the states through interpretation of the ‘due process’ clause of the 14th Amendment.
The trouble with this concept is that ‘beliefs’ don’t just stay in your head, you act upon them. As an example, one’s belief as member of the Muslim faith might mean that the person feels obligated to pray five times daily; a person of Jewish faith might feel compelled to wear a covering of the head under certain conditions. And that need to act might extend outside of religious ceremonies and actions; the Amish, for example, insisting that their children not go to public schools past a certain age, or Sikh’s insisting on wearing their ceremonial dagger at school. It is in dealing with actions that the Supreme Court has had its troubles over the years.
Initially, when presented with court challenges to federal legislation that allegedly prevented the free exercise of religion, the court drew a very strict line between ‘actions’ and ‘beliefs’. Interestingly for our discussion, the distinction was first drawn in a case that dealt with polygamy practiced by the Mormons in the Utah Territory. In Reynolds v United States, 98 U.S. 145 (1878), Reynolds had been prosecuted under the Revised Statutes of the United States, Section 5352, which made having two wives a crime. In his defense, Reynolds asserted that Congress could not outlaw the practice of polygamy when such practice was a fundamental tenet of his religious belief. The Court was mightily unpersuaded by this reasoning. Quoting Thomas Jefferson, the Court determined that the original intent of the people who had framed the First Amendment was to prohibit laws that infringed on beliefs only. Stated the court, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” (Reynolds, supra at p. 164)
Then, in language quite applicable to the question raised by the original post, the Court proceded to demonstrate that polygamy was a horrible sin that every decent Christian nation held to be a crime. “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people…In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.” (ibid.) Finding that the states at the time of the adoption of the First Amendment subsequently continued to outlaw polygamy, the Court determined that the First Amendment could not have been intended to prevent such laws. Finally, the Court voiced what, from a legal standpoint, was the most troubling issue raised by Reynold’s defense: if a person’s faith lead to protectable actions, how could the country reasonably adopt criminal laws and expect them to be fairly applied?
(ibid., p. 166).
With such reasoning, partly based on a view that the Christian prohibition was the only moral approach, partly based upon a narrow view that the Amendment only precluded laws that punished or restricted belief, the Court held that the laws against polygamy were constitutional, and upheld the conviction of Reynolds.
The Court utilized this approach consistently in cases addressing Mormon practices. It wasn’t enough for those opposed to the Mormon practices to outlaw polygamy; laws were enacted preventing polygamists from voting, or serving on juries. Each of these was upheld by the Court (juries in Murphy v. Ramsey, 114 U.S. 15 (1885); voting in Davis v. Beason, 133 U.S. 333 (1890) (“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. . . . To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their
practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.”). Finally, in the supreme act of disrespect to the Mormon belief, the Court upheld the charter of the Mormon church, and the seizure of all its assets not directly related to religious worship (The Late Corporation of the Church of Jesus Christ of
Latter-Day Saints v. United States, 136 U.S. 1 (1890), wherein the Court stated, “``[T]he property
of the said corporation . . . [is to be used to promote] the practice of polygamy–a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. . . . The organization of a community for the spread and practice of polygamy is, in a measure, a return to
barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity had produced in the Western world.”)
Clearly, then, the basis for the Court’s antipathy towards polygamy was the belief that such a practice offended the conscience of a Christian nation. Given that the Court had drawn a very narrow interpretation of the First Amendment, it was not surprising to see it justify the imposition of supposedly Christian values on a group of people with much differing beliefs.
Starting in 1963, this rigid analysis of laws allegedly impacting Free Exercise was ejected, and a balancing test is now applied. The importance of the legislative objective is measured against the impact the law has against the practice of the religious belief in question. Thus, Amish children are exempted from laws requiring them to attend school past the 8th grade, and Sikh males who are old enough to be required to wear ceremonial daggers can be exempted from laws that prohibit weapons in schools.
Get rid of marriage? No - I kind of like the institution. Should I have access to it? I think so, but it’s not exactly popular opinion these days. Civil unions? Eh, it’ll do for now - I still feel like a second class citizen, but at least I’m getting some modicum of equal treatment. I still maintain that eventually the institution of marriage will be expanded, but I don’t know how soon that will happen.
DSYoungEsq - thank you for that post. I had heard a little bit about some of the legal hoo-hah surrounding Mormon polygamy (BTW - is it true that both Joseph Smith and the Book of Mormon denounced polygamy and it was Brigham Young who made it accepted practice?).
Polycarp - I had thought of the child issue but dismissed it, as there seem to be a whole lot of laws requiring the support and care of children regardless of the marital status of the parents. Numerous threads have been posted recently about fathers being ordered to pay for children they never knew they had and a lot was said about the number of laws on the books that exist to see that children receive financial support. I cannot see that a marriage involving multiple partners would change the way children are supported. Perhaps prenuptual agreements might be made mandatory, with regular updates advised upon status change (children born, partners add/subtract). Yeah, there are always going to be messy situations, but there always have been and there is no reason to think anything is going to change when human emotion is involved.
nebuli - I saw that error in my original phrasing and attempted to rectify it in my next post by referring to Western religion in general rather than singling out Christianity. I used Christianity at first because the majority of Americans still claim to believe in some variation of the Christian religion. Up until the US Constitution seperated them, state and church were essentially the same, therefore most of the customs (and certainly those relating to children and marriage) are based in religion.
redtail23 - hiya back. I’ve found the same thing. It is something that is so much a part of the culture that most people assume one-man/one-woman marriage to be some sort of natural law. The way I see it, the one-man/one-woman idea works okay for procreation purposes, but may not be the best way for many people to spend their lives.
Esprix - I look forward to the day when everyone marries their best friend (providing the sex is good) because you can work out just about everything else in a relationship.
Cheers to all - still waiting for any good non-religious reasons to restrict marriage. Incidentally,
