August 8, 2014

Considering Marriage: Part Two

By In Articles, Society and Culture

I had meant to finish and post this much earlier. I get distracted. 

Introductory Thoughts

In the first part (read that first), I noted that the common libertarian solution to the marriage debate (“let the churches handle it”) was not necessarily the best way to look at things from a Reformed Libertarian perspective.  The reason, simply put, is that the Bible gives explicit functions to the institution of the Church, none of which refer to the management of the marriage relationship.  And yet, if we believe that the civil government (even in a more Rothbardian “free market government” system) is restricted to only punishing society’s criminal –defined as one who breaches the life, liberty, or property of another individual– how can we advocate that this entity oversee the marriage relationship?  Thus, it seems that our answer can neither find solution in the church or the State. What to do?

We must remember that historical Christianity and even the post-Reformation world at large has not been uniform in its understanding of how the church, the state, and society should interact around the idea of marriage, although it is true that the definition of the institution has mostly been one man/one woman.  John Witte’s impressive analysis (h/t Brandon Adams for the source) of the historical development of marriage provides the following categories of marriage in society:

  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

For starters, I am convinced that the proper understanding of the nature of a legally enforceable contract is Murray Rothbard’s, as explained below (my bold):

…[T]he right to contract is strictly derivable from the right of private property, and therefore… the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party. 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.

In a marriage relationship, the bond is not sealed on the basis of property title transfer, thus I do not think that it best be thought of as a “contract,” contrary to the enlightenment tradition. The reason I clarify this is to distance myself from other libertarians who either reject Rothbard’s understanding of a contract or else don’t consider it and therefore think of marriage as “simply a contract to be enforced like any other contract.”  There is a strong libertarian tradition in enlightenment philosophy (think John Locke), but I take a much more reformed approach (propositional revelation), and thus will stay true to that, insofar as I can.

Marriage, because its bond between man and wife is spiritual and intellectual, that is to say, it is dependent on God and man’s volition and does not include the physical transfer of property title, is a Covenant.  This places me in the Calvinist tradition.  Marriage is categorically the same as God’s covenants throughout redemptive history.  It points to and shadows, as do the Old Covenant promises to Abraham, the relationship between Christ and his Church.  The difference between a Covenant and a Contract, is that the latter is built on the transfer of property ownership and the former is built on a promise of faith (or a “commitment,” to use Meredith Kline’s word).

The Church is given no duty to oversee marriage and we answer in the negative if asked whether the State should interfere with promises and commitments.  What to do?

Some Historical Notes

The Protestant Reformation brought about a massive reaction against all of Rome.  Marriage in the Roman Catholic tradition was seen as subordinate to Canon law, that is, the body of laws created by the Roman Church.  But Luther worked “in direct collaboration with like-minded jurists” (Witte, pg 121) to bring about a true reformation of the 16th century understanding of marriage and, in short, radically opposed the corruption and anti-Biblical developments that had arisen under Roman marriage provisions.  The Church had so regulated marriage so as to strip it of its glory and sanctity.  Witte writes: “The canon law discouraged and prevented mature persons from marrying by its celebration of celibacy, its proscription against breach of vows to celibacy and chastity, its permission to to breach oaths of betrothal, and its numerous impediments, which led to marital annulment.”  Clearly then, the context was ripe for the Reformers to lambast Roman policy and seek a new solution for the institution of marriage.  Such is the danger in advocating the Church to regulate marriage.  Church functions should be limited. Marriage then was not a sacrament for the Reformers, as it was in the Roman tradition.

While it was Luther who initiated a rethinking of marriage law, it was John Calvin that worked to actually advance specific applications and theories about the nature of marriage in relation to the world.  Witte wrote: “If Wittenberg was the Bethlehem of Protestant marriage law, Geneva was the Nazereth.”  That is to say, Luther birthed the reformulation, but Calvin developed it.

For Calvin, acting as a profound jurist and legal scholar, “led a sweeping reformation of Genevan marriage and family life, alongside many other religious, political, and legal institutions.”  It is difficult to express in a short blogpost just how radically profound Calvin’s changes were in Geneva family law.  I recommend this chapter in Witte’s book for a full overview.  What is relevant, though, is that Calvin shifted the center of marriage dispute resolution from the churches in Geneva to the civil government.  This is a massive undertaking, if one understands church culture in 16th century Europe.  It was, in some major ways, a coup d’etat.  It was the civil government and not the Church, argued Calvin, that was tasked with regulating and overseeing the covenant of marriage.  The Church was to focus on the preaching of the Word of God and the Gospel, while the chief end of civil government was justice.  If marriage and family affairs are matters of the earthly kingdom, for there is no marriage in heaven, then surely the Church should not interfere except in the simple pronouncement of the truth.

It is easy for the libertarian, whose legal theory is deduced from the principle of individual ownership of property, to be critical of a civil government takeover of the family, but one must understand the context and how it set the stone for the development of Western Civilization and the rise of capitalism.  For this shift in jurisdiction was reflective of a much wider emphasis on the separate duties of the Church and the State.   As John W. Robbins once noted in his Freedom and Capitalism,

When ancient Greece and later both pagan and papal Rome ruled the world, there was no religious liberty. Church and state were combined, and the result was a form of totalitarian government that attempted to control both soul and body. In Athens, Socrates was condemned to death for his atheism: He did not believe in the gods of Athens. During the pagan Roman Empire Christians were tortured and killed for not worshiping the Emperor. During the reign of papal Rome, Christians were tortured and killed for holding views inconsistent with those of the Roman Catholic Church-State.

Luther opposed the use of force in religious matters. After the Reformation, Christians gradually freed themselves from pagan views of church and state, and state and church were gradually separated. Civil government was limited not only by being made representative and constitutional, but by removing the control of ideas entirely from its jurisdiction. To this development we owe the First Amendment of the Constitution, which first of all protects religious liberty, and consequently freedom of speech, press, and assembly.

-John W. Robbins. Freedom and Capitalism (Kindle Locations 263-271). The Trinity Foundation.

By the time of the American revolution, the concept of individual liberty and right to person and property had developed greatly since the separation of Church and state during the reformation era.  While Luther and Calvin had unfortunately participated in some examples of anti-liberty, anti-property activities during his life, it was largely the efforts of the reformers which allowed the functions of the Church to remain separate from the functions of the civil government.  This was a good development for freedom and capitalism.  The quite conservative and traditional Calvinist Robert Reymond wrote in his Systematic Theology that “Martin Luther was wrong when he called for the German princes to use the sword against the Anabaptists in 1531 and 1536. The Protestant leaders at Geneva, including John Calvin, were wrong when they burned Servetus as a heretic.”  

So then, while highly praiseworthy in many matters, no one is right on everything and we must be swift to admit Calvin did things with which we disagree.

Problem and Solution

The problem comes when we question what, exactly, is supposed to be done with marriage.  Those who want the government to regulate it, who agree that this is not a proper function of the Church, must have something in mind.  Is it just a pronouncement with an official seal? Why can’t a private institution do that? What is it about the State that makes it “official?”  The confusion comes when there is a misunderstanding regarding the essence, the anatomy (to use Murray Rothbard’s word), of the State itself.

The State is the institution of legalized coercion in society.  This is not a value statement.  Those familiar with libertarian theory will understand how the libertarian might therefore judge the State, but the point here is simply to define its character.  To clarify, I will quote Christian philosopher Ronald Nash because he both understood the nature of the State and yet was not a libertarian in the most useful sense of the word.  This helps to reveal my attempt at objectiveness in definition.  Nash writes:

The basic difference between a society and the State then is the indispensable place of force and power in the latter.  The State always supports its claim to the obedience of its followers through the use of force.  The force may be blatant as in the case of armies, prisons or firing squads; or it may be applied more subtly in the form of threats.  But wherever the State exists, one will necessarily find coercion.

So then, the question becomes “what about marriage, indicates that it needs to be regulated by an institution of force?”  Or perhaps, “what is unique about marriage that requires it to be backed up the constant threat of the sanction of legal coercion (to use the Rothbardian phraseology borrowed from his quote above)?”

If a man and his wife voluntarily consent to marriage (voluntary consent is another emphasized feature of the Reformation’s doctrine of marriage), which is a lifelong commitment, how much coercion should take place if the wife decides to walk away?  What is not being asked here is whether this woman is living in sin.  Neither is it being asked whether this divorce is morally justified.  And further, it is not being doubted that the Church should pursue some form of discipline or counseling for this couple.  For we are assuming the Biblical doctrine that marriage is for life and it is restricted to one man and one woman.  The question is whether or not the police squad should be dispensed to round her up and take her home.  That is, we are asking what are the grounds for State activity when “something” comes up.

Let’s give the example of marital abuse.  In such a case, the State’s affirmation of the marriage relationship is irrelevant to whether an individual has the right to “flee the scene” and seek refuge with, say, a friend, if being physically abused.  If two friends, male and female, get together for a dinner date at the former’s house, and concludes with the man in a drunken rage (we are being hypothetical here –my unsolicited advice to the nice lady: don’t date him anymore) our suggestion that she get to a safe place is the same as in the identical case except between a married couple.  If a police force (whether it is public or privately provided) is needed to help get her to safety, her marriage to the man is irrelevant.  And it is the counsel of her friends (and I should hope she has a Church body to help) to decide how to proceed with her husband.

If a man begins to beat his wife, he should be arrested, not for beating his wife, but for beating an innocent human being. I am not sure that the type of relationship he has with her is relevant. Whether wife, mother, daughter, or auto repair man, it is rightfully considered “battery” to initiate an attack against another human being.

And what about adultery?  I once knew a man who cheated on his wife with another woman.  This provides for an excellent example of marriage and sexual sin in a free society.  The man and his wife were members of our church.  The man was unfaithful. He repented, made his sin known to the congregation, and with a miraculous and beautiful display of grace, his wife forgave him and consented to remain married.  That was 12 years ago.  There was no State intervention, and if there was, I doubt the marriage would have healed.

In conclusion, one possible question is whether the State should be in the business of handing out marriage licenses.  And if so, should they make the pronouncement that they are only giving them to one man/one woman relationships or should they cater to the homosexual lobby as well?  The argument is that the marriage license is just like a birth certificate in the sense that it just announces what has already taken place rather than actually creates the covenant relationship.  Aside from the obvious objection that the government should not be handing out birth certificates either, I do think that the State has no business in printing up certificates of marriage either.  One argument against it, from a simple Biblical stance, is the fact that this activity is outside of its role of punishing the evildoer.  And secondly, it is simply unnecessary; if there is a dispute between and man and his wife, and it involves something enforceable (like theft or murder), then the marriage license is irrelevant.

As for the rising social tendency to embrace homosexual relationship, and call them marriages, it is quite obvious that the assumption that the State should be handing out marriage licenses is working against our case for the sanctity of marriage.  The great debates of our time over the definition of marriage by the State would not exist if they were not able to be so easily politicized.  The issuance of marriage licenses, which is never commanded of the State in Scripture, is the means by which the LGBT activists will win the short term (for Christ has already one the long term) battle.

Neither State nor the Church should regulate marriage. And if there is a civil dispute: the courts will do as the courts do and the police forces (I think police should be privatized) will do as they do.  I’ll finish with what Doug Douma (who is very close with Clark’s family) said of Calvinist philosopher Gordon H. Clark:

He opposed government involvement in marriage. According to his son-in-law (who happens to be the President emeritus at the seminary I attend) Clark was opposed to the government being involved in marriage. And even, holding a unique position as far as I’m aware of, that the CHURCH shouldn’t be involved in marriage. I can only speculate that as an aggressive exegete of the scriptures he saw no particular evidence for the church sanctioning marriage, but it being a personal or family affair.

_______________

There may now be some question as to what a “neither State nor Church” solution might look like in the real world.  I’ll have to pull together some more thoughts for that part three.  you can email me reformedlibertarian@gmail.com

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
  • Yay for this and Yay for Clark, though Sproul says Clark needs to repent (17:30 http://www.albertmohler.com/2014/03/21/questions-and-answers-1/ )

    The problem comes when we question what, exactly, is supposed to be done with marriage. Those who want the government to regulate it, who agree that this is not a proper function of the Church, must have something in mind.

    Bingo.

    • reformedlibertarian

      Regarding Sproul: fascinating.

      I’m not sure exactly what the State is supposed to actively do in their view. It is certainly agreeable that whoever works for the government should define marriage along Biblical in the same sense that whoever does not work for the government should hold to a Biblical position. But what exactly are we asking the State to do? I do think it should enforce contracts and punish criminals, but how specifically does that uniquely apply to married couples? This whole thing, I am convinced is giving the LBGT lobby ammunition to continue their marches. Marriage has become a political hot button issue and politics is a cancerous wart.

      I am gathering some specific real life cases to analyze for a possible part 3. Relating to children and other possible disputes. let me know if you have anything in that regard.

      • I don’t think the question can be answered apart from recognizing all the “privileges” that a bloated state has created.

        In its activism in support of gay marriage recognition, the Human Rights Campaign identified 1,138 federal benefits, rights, and protections granted on the basis of marital status. That’s just the federal stuff. State policies add even more…

        Last week,Federal Judge Robert C. Jones stated as much in a ruling that Nevada could legally outlaw recognition of gay marriage in the state. He wrote in his ruling, “The perpetuation of the human race depends upon traditional procreation between men and women.” Perhaps cognizant that there’s little evidence that one’s sexual orientation bears any correlation to one’s access to marriage recognition, he took it further, explaining that recognizing gay marriage would cause heterosexuals to value the institution less and might “enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

        That is to say, Jones’ fear is that if the government starts recognizing gay marriages, heterosexuals will realize they don’t need the government to tell them how to have a family.

        http://reason.com/archives/2012/12/07/the-libertarian-gay-marriage-paradox

        I let you know if I have any specifics

        • reformedlibertarian

          >”I don’t think the question can be answered apart from recognizing all the “privileges” that a bloated state has created.”<

          Absolutely. And in that case and for now, I do think it is better that the operating definition utilized by the State is "one man one woman" as opposed to "two human beings."

          My position, which also appears to be Clark's, can only come into being if the legal and bureaucratic system was made better. State definition of marriage presumes State activities that I would ideally deny it in the first place. Some libertarians seek to ask what the State should do regarding definitions in the meantime, that is, in the here and now. And they answer by stating that it is "more fair" to have a broad definition.

          But, per this article (http://reformedlibertarian.com/articles/politics/libertarianism-is-not-egalitarianism/ ), I don't think "fair" is a good argument. And in any case, there is no "natural right" to marry. Gay marriage approval is not a property rights issue.

  • Daniel

    Thanks for the excellent article and link to fascinating talk Brandon. Agree that this problem have been exacerbated by the welfare state. If marriage was just a family or private matter why should this issue ever arise? How would marriage be handled in Hoppes idea of governement? I guess if a Christian contract enforcer would not like to enforce a gay contract he would not have too and the gay couple could go to a non-Christian contract enforcer.

    • reformedlibertarian

      Daniel, your final statement is very true. However, what exactly would be enforced that is unique to marriage? Two people who are married could certainly draw up some sort of contract, like a prenuptial agreement, but the contract itself is distinct from the marriage covenant. But couldn’t this “contract” just as well bind a non-married couple? So while your statement is agreeable, my only question is whether or not we can actually think of an example. And that is my point regarding all those who want the State to handle marriage: they keep saying things about how it is good that the State enforces the marriage covenant but I can’t get an example to: “how?” Once that is answered, or someone thinks of some sort of example, we can proceed to further investigation. @Brandon Adams said he might try to think of some things. let me know if you do too.

      As for Hoppe, whose social theory emphasizes the family unit (which is a wonderful thing, given that many anti-libertarians continue to repeat the myth that the libertarian doesn’t care for the family), traditional marriage is key. And societies are right to promote the goodness of marriage in the same way that they are right to promote virtuous living and lifestyle decency. It seems that he would agree with Gordon Clark that marriage is “a personal or family affair.” But would also want to see its promotion by the families and community at large.

      Also, since I know you’d be interested, the Hoppe connection has always fascinated me in general. He is a flavor of Kantianism and is therefore really close to Clark epistemologically. I sort of consider the Clark/Augustine epistemology to be a “Christian version” of Kant, of course perfecting him and avoiding his problems. For more on this, consider that Clark accepted the preformation theory of the mind (that God implanted within our minds the necessary categories to interpret the world), which Kant considered a possible solution to some of his own reservations but who rejected the theory almost without explanation! Or at least with a very uncharacteristically poor explanation. (This is in Thales to Dewey pg 320)

      But since Hoppe (and Mises) rests on an a priori method and deductive reasoning starting from one (flawed –because it is not the Bible) axiom, and who believes that truth can only be verified by the mind, there are a lot of helpful themes in reading Hoppe (and Mises) even though they are not Christian. Especially in economics. Interestingly, their most heavy handed critiques of Christianity were all directed at the modernist (liberal and Marxist) Christians who were also greatly opposed by Machen and Clark.

      • reformedlibertarian

        @brandonadams:disqus I tried to tag you above but it didn’t work.

  • The true meaning of Church State separation came to me a few weeks ago, while I was in dialogue with a caller on “Catholic Answers Live.” The caller opined that the State should get out of marriage and leave it all to the Church. I asked him a series of questions, to show him that this was not a realistic plan.

    “So, you think the Church should be allowed to decide which weddings they will solemnize?”

    “That’s right.”

    “And the Church should be allowed to decide which of its members can get divorced?”

    “Yes.”

    “And the Church should be allowed to decide whether divorced people can receive Communion.”

    “Sure.”

    “What about property settlement after a divorce: should the Church be allowed to have jurisdiction over the division of property?”

    “Uhhhh….”

    “How about child custody? Should the Church be allowed to decide child custody after divorce?”

    “No.”

    “Why not?”

    Long pause. No answer.

    http://clashdaily.com/2014/07/hobby-lobby-separation-church-state-true-meaning/

    • reformedlibertarian

      Nice. Thanks for this. Clearly decisions like that are to be made by the agency in society that handles dispute resolution. And the Church should do no such thing. Interesting coming from a Catholic. Have you read Robbins’ Ecclesiastical Megalomania?

      • I’ve listened to his lectures and read part of the book a long time ago. But it’s on my list to read in full

  • Christoffer Skuthälla

    Excellent stuff, just what I needed at this moment!

    • reformedlibertarian

      Glad it was helpful! I’ve written two marriage articles since this one. One about whether the state should approve same sex marriage and one interacting with sproul on the subject. Have you seen those?