Saturday, December 13, 2008

Sullivan v. Paglia

In re the little dustup between Andrew Sullivan and Camille Paglia on the topic of gay marriage I must say that I find that Paglia has far the better argument when she says "....government should get out of the marriage business. Marriage is a religious concept that should be defined and administered only by churches." By way of replying, Sullivan says:
his is a very strange reading of Catholic history and American history. Marriage was not a sacrament until the thirteenth century; many Protestants, most famously Luther, denied its sacramental quality through the sixteenth century. The first marriages in America were civil, not religious in nature:

When the Pilgrims landed at Plymouth in 1620, among the first things they did for the well-ordering of their new commonwealth was to institute the Dutch custom of civil marriage with which they had become familiar during their long sojourn in the Netherlands.

The Dutch made civil marriage the law of the land in 1590, and the first marriage in New England, that of Edward Winslow to the widow Susannah White, was performed on May 12, 1621, in Plymouth by Governor William Bradford, in exercise of his office as magistrate.

Now it is true that the churches have conflated civil and religious marriage ever since and this has become part of the messy civil-religious aspect of marriage in contemporary America. And Camille, as usual, has a point: a cleaner solution would be civil unions for everyone, gay and straight.

For most of it's existence, marriage has been a much more laisseze faire institution than it is today. The entire business of formal registration of marriage in the west did in fact begin as a function of the ecclesiastical courts and was mostly concerned with the establishment of legitimacy of children (largely of concern in terms of inheritance) and settlement of property rights. Today these concerns are no longer as relevant and are often handled without regard to the marriage estate. In the wake of the Reformation (which serves to explain a lot about why Luther argued against Church control over the formalities), marriage increasingly fell under the authority of the state. At this point the government has maintained the prerogative to issue marriage licenses for so long that no one even questions their warrant to do so. But most of the accoutrements of marriage can and are handled through a variety of other devices of the civil law, such as health-care proxies, and through a more enlightened treatment of testamentary law and child-support. The other issues that arise should be (relatively) simple subject matter for statutory cures. The argument for any state licensing of marriage is just rather weak....after all, the IRS doesn't hesitate to argue the existence of a common-law marriage when it suits their purpose, so the licensing or lack thereof is not always dispositive even today.
I think that this would not satisfy Sullivan, however, as what he really wants is the State sanction, even if the State properly has no good business sanctioning any sort of marriage whatsoever.

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