June 16, 2014

Considering Marriage: Part One

By In Articles, Philosophy

The following overview has been a long time in the making.  The marriage issue has been more difficult for me than nearly every other topic in this attempt to develop a Reformed Libertarian understanding of things.  There has been a close tie between what might be called the “traditional view” of marriage in American society and the Biblical understanding of the matter.  The reason I say that these have in recent history been closely related is because a) there actually is an important distinction given the Biblical backdrop of a Covenant Theology which marriage models and non-Christians obviously do not consider; and b) because the one-man/one-woman model-definition existed as the majority view in American (and Western) society.  This gave the American Christian a great blessing in the sense that he was not required to challenge the status quo in pursuit of this divinely ordained relationship.  I see in our time a waging war on the Biblical doctrines of marriage and sexuality.  It is so obvious and blatant that I see no reason to seek to prove this claim.  As the tides begin to turn in our civilization, it is becoming increasingly obvious that the societal and Biblical views of marriage are seeing themselves ripped apart.  What has been taken for granted in this country will be in the next generations something foreign.

When I first became a libertarian, the commonly-expressed libertarian view seemed reasonable enough: “privatize marriage;” that is, the State should not define or manage the marriage relationship. When asked what this would look like, often people might say: “let the Churches handle it.”  As an anti-state libertarian, I was enthused.  This seemed great to me until I began to consider the fact that the Church has a Biblically granted set of duties and responsibilities, none of which is to oversee the bond between a man and his wife.  Even the solidly conservative DA Carson has said the following regarding the relationship between Churches and marriage:

In fact, I would argue that marriage is a creation ordinance, not a church ordinance. I’m not sure that ministers of the gospel should be involved in the legal matters of weddings at all. I rather like the practices that have developed in France (though I admit that they developed for all the wrong reasons). There, every marriage must be officiated by a state functionary. Christians will then have a further service/ceremony/celebration, invoking the blessing of God and restating vows before a larger circle of family and friends, brothers and sisters in Christ. Similarly, Christians seeking to be married may well undergo pre-marital counseling offered by the church. But the legal act of the wedding is performed exclusively by the state. That is one way of making clear that marriage is not a distinctively Christian ordinance (though it has special significance for Christians, including typological significance calling to mind the union of Christ and the church); it is for a man/woman pair everywhere, converted or not, Christian or not—truly a creation ordinance.

Yes, the authority of the Churches to manage marriage was a creation of the Roman Church and it was not expressly given them by Scripture.  Thus, I was at a place where my theology seemed to inform one thing and my libertarian principles seemed to demand another.  However, I then realized that the dichotomy between State and Church management of marriage was a false one.  And it is a false dichotomy in the same sense as the assumption that, for example, we have to choose between a society of no laws and Congress’ anti-property rights legislation which, as any good natural law theorist knows, is artificial law. The need for civil law is vital and yet, in all our opposition to State artificial law, few of us, and even fewer libertarians, suggest that the church handle our laws.

When we speak of the need for the separation between Church and civil government, our point is that the Church has exclusively spiritual functions, it may never, as an institution, exercise coercion, even against the criminal (I am not talking about the right of the Christian to defend himself and his property); and the civil government, whatever its tasks may be, are most definitely not spiritual.  I recently posted a quote in this regard by Robert Reymond.  I admit that on the marriage issue, the Roman Catholic libertarians do not have the same problems that we Protestants do.  With all my love and respect for the heroic libertarians at LewRockwell.com (LRC) and Mises.org, I must note that many of them are either Roman Catholic or accept Romish solutions on marriage.  And on this I have no choice but to dissent.  Yes, even many evangelical libertarians who do not see the abominations of Roman Catholicism are very much open to “letting the churches take care of it.”  However, I would urge this Christian to hold to an absolute the Reformation principle that the Bible alone determines the functions of the Church.

The folks at LRC and Mises are right in their rejection of State management of marriage but wrong when they offer as an alternative Church management.  Now, in their defense, this alternative is only a suggestion and I am confident that they would be more than willing to consider other options such as private contract arbitrators or other free market conflict resolution.  Anything, except the State.  For even if our theological convictions inform us that the Church should not handle marriage, it does not follow from this point alone that the State should take care of it.  The false dichotomy is clear.

Now, per D.A. Carson’s quote above, the reader will notice his clear endorsement of state-management of marriage.  We must understand Carson in his context of non-libertarian political philosophy. The Christian historical understanding, formulation, and definition of the State is unfortunately broad and underdeveloped.  This is regrettable and it leads to serious doubts from Christians about the nature of libertarian opposition to the State.  In a forthcoming article I plan to go into depth beyond what I have already said on the distinction between the State as an institutionalization of illegitimate aggression and government which is a role that pursues, but does never systematically contradict (lest it become a state), justice, law, and criminal prosecution.   At any rate, we can pull out something helpful from Carson’s statement to the effect of: the church is never to manage marriage and marriage is a ordinance of creation; which means that, like civil law, it is intended to benefit all people, both saved and unsaved.

The relationship of marriage to society has a diverse background, even in the post-Christ Western World.  Moreover, our understanding of marriage itself will help in the quest to find a Reformed Libertarian solution to the “neither State nor Church” predicament.  To help me understand this historical development, I was helped along by the suggestion of Brandon Adams to read John Witte’s detailed From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition.  Witte offers five models that have been developed historically.  They are listed as follows:

  1. Marriage as Sacrament in the Roman Catholic Tradition
  2. Marriage as Social Estate in the Lutheran Reformation
  3. Marriage as Covenant in the Calvinist Tradition
  4. Marriage as Commonwealth in the Anglican Tradition
  5. Marriage as Contract in the Enlightenment Tradition

In the rest of this essay, I want to briefly summarize each tradition and explain why I think marriage should be seen as a covenant.  Moreover, I want to consider what that means for a libertarian legal system and explain where I must distance myself with Calvin himself, especially in regard to the public ramifications of the nature of marriage.  While I think the nature of marriage is a covenant and not a contract, it is important to realize that there are some important contributions that contract theory can bring to the table.  Interestingly, and I will draw this out further on, libertarians have largely neglected the Rothbardian contract theory which actually wouldn’t allow marriage to simply function as a contract.  Some libertarians (especially the beltway libertarians like Cato –who aren’t Rothbardians anyways), will simply posit that “marriage is just a contract.”  But of course they define contract in a way that is at odds with the Rothbardian formulation.  Happily, this was to my benefit as I struggled to understand the proper model of marriage and its relation to a libertarian society.

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In looking over this essay, I have realized how long it is and think it best to split it up for the sake of my readers.  I will publish the post up to this point now, give my readers a couple days to catch up, and then post more. –CJE

Written by C.Jay Engel

Editor and creator of The Reformed Libertarian. Living in Northern California with his wife, he writes on everything from politics to theology and from culture to economic theory. You can send an email to reformedlibertarian@gmail.com
  • Shivank Mehra

    Contract consists of exchange of goods. A good can also be a material and it can also be a “useful human action”. So yes, you CAN have right to property in the service of others, if they have contracted the same.

    • cjayengel

      I take the more Rothbardian view, and he would disagree:

      “The old “breach of promise” suit forced the violator of his promise to pay damages to the promisee, to pay the expenses undergone because of the expectations incurred. But while this does not go as far as compulsory slavery, it is equally invalid. For there can be no property in someone’s promises or expectations; these are only subjective states of mind, which do not involve transfer of title, and therefore do not involve implicit theft. They therefore should not be enforceable, and, in recent years, “breach of promise” suits, at least, have ceased to be upheld by the courts. The important point is that while enforcement of damages is scarcely as horrendous to the libertarian as compulsory enforcement of the promised service, it stems from the same invalid principle.”

      http://mises.org/rothbard/ethics/nineteen.asp

      He advocates the “title-transfer” theory of contracts:

      “In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts.”

      I will go further into this as this series progresses.

  • Brian K. Jacobson

    I posted this comment on another older article because I couldn’t find this one but I’m curious to know your thoughts on this:
    Still thinking about this myself but the creation ordinance argument is something right-wing evangelicals and moral majority folks tend to bring up and one thing I think that isn’t considered is that at that point of creation it was a theonomy and there was no separation between church and state in the kingdom of God. That shouldn’t be taken for granted. Also what does this logic then say for the Sabbath? Especially if we are confessional reformed folk, WCF myself. The Sabbath was a creation ordinance no less than marriage. Both marriage and the sign of the Sabbath will pass away when Christ comes. I certainly don’t hear evangelicals whining about the failure of country to enforce that. Both the Sabbath (or Lord’s Day) and marriage have implications and properties not true of or shared by non-christians and really unenforceable. I think we still need more thinking on this (I’m not a fan of blue laws which also makes me question marriage as state ordinance).