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Nichols (ed.), “Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion”

Today, Cambridge University Press publishes Marriage and Divorce in a51hSPzHqugL__BO2,204,203,200_PIsitb-sticker-arrow-click,TopRight,35,-76_AA300_SH20_OU01_ Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion, edited by Joel A. Nichols (University of St. Thomas, Minnesota). The publisher’s description follows.

American family law makes two key assumptions: first, that the civil state possesses sole authority over marriage and divorce; and second, that the civil law may contain only one regulatory regime for such matters. These assumptions run counter to the multicultural and religiously plural nature of our society. They are also wrong. This book elaborates how those assumptions are descriptively incorrect, and it begins an important conversation about whether more pluralism in family law is normatively desirable. For example, may couples rely upon religious tribunals (Jewish, Muslim, or otherwise) to decide family law disputes? May couples opt into stricter divorce rules, either through premarital contracts or “covenant marriages?” How should the state respond when couples purport to do these things? Intentionally interdisciplinary and international in scope, this volume contains contributions from fourteen leading scholars. The authors address the provocative question of whether the state must consider sharing its jurisdictional authority with other groups in family law.
Posted on by Dan Crane · 5 Comments

Marriage Privatization Won’t Be Easy

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., Read more

Posted on by Dan Crane · 25 Comments

How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

Posted on by Mark Movsesian · 1 Comment

Report: As Cardinal, Pope Supported Civil Unions As Alternative to Same-Sex Marriage

This will cause a stir. The New York Times reports that, in a private meeting with bishops in 2010, then-Cardinal Jorge Mario Bergoglio endorsed the idea of civil unions for gay couples as an alternative to same-sex marriage.

The suggestion came in the context of debate over legalizing same-sex marriage in Argentina. Although Cardinal Bergoglio vehemently and publicly opposed the law, the Times reports, at a private meeting of the Catholic bishops conference he supported civil unions as a compromise–“the lesser of two evils,” according to the cardinal’s authorized biographer. According to the Times, this suggestion “inflamed” the meeting, and the conference voted down the suggestion. Argentina eventually legalized same-sex marriage.

The Times argues that “Cardinal Bergoglio’s readiness to reach out across the ideological spectrum and acknowledge civil unions for gay people could raise expectations that he would do the same as pope,” but concedes that Pope Francis may have less need, and ability, to compromise on the issue. Anyway, in political terms, civil unions seems to be an idea whose time has passed–it’s doubtful that gay rights supporters would settle for anything less than marriage at this point.

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Court Agrees to Review DOMA and Prop 8

The Court has granted cert. in Windsor, concerning the federal Defense of Marriage Act, and Perry, concerning California’s Proposition 8. The religion overtones of both cases are obvious and make them of great interest to CLR readers. Here is Adam Liptak’s coverage in the New York Times.

Posted on by Mark Movsesian

Cheating As a Human Right

I’ve written before about how international human rights law increasingly reflects the norms of the so-called WEIRD countries – that’s Western, Educated, Industrialized, Rich and Democratic – and assumes that those norms must be honored across the globe. This assumption is going to lead to problems. Whether or not WEIRD values are good ones – and there are some very good WEIRD values, such as religious freedom – they are not universal, and the attempt to impose them wholesale, without taking into account local cultures and histories, will only backfire. Most of the world is not WEIRD, after all, and people naturally resent outsiders telling them they must remake their societies to conform to norms they find alien.

A good example of what I’m talking about is this month’s Joint Statement by the United Nations Working Group on Discrimination against Women in Law and Practice. The statement calls on nations to decriminalize adultery. Now, there is a valid point here. In some countries, criminal laws against adultery are unfairly enforced: women are punished much more harshly than men. The Working Group could have done some good by providing details about this sort of discrimination and calling on nations to administer justice equally.

In fact, though, the Working Group goes much further. Under international law, it claims, nations may not make adultery a crime at all. “Almost two decades ago,” it informs readers, “international human rights jurisprudence established that criminalization of sexual relations between consenting adults is a violation of their right to privacy and infringement of article 17 of the International Covenant on Civil and Political Rights,” or ICCPR. The reference to Read more

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Schmugge, “Marriage on Trial: Late Medieval German Couples at the Papal Court”

This November, The Catholic University of America Press will publish Marriage on Trial: Late Medieval German Couples at the Papal Court by Ludwig Schmugge (President, Scientific Committee of the German Historical Institute, Rome, Italy), translated by Atria A. Larson (The Catholic University of America). The publisher’s description follows.

In the first detailed study of papal penitentiary materials on marriage, renowned medieval historian Ludwig Schmugge tells the exciting stories of seduced maidens, too-closely-related husbands and wives, and thousands of couples who faced lawsuits–all of whom had transgressed marriage law on various grounds in the Middle Ages. This work vividly describes many of the individual cases and offers new insight into the social and legal pressures on marriage in the Middle Ages.

At a time when betrothal, marriage, and sexual morals were strictly subject to the church’s law, petitions from couples abounded. More than two hundred clerics of the penitentiary in the papal curia devoted their time and attention to these petitions alone. With exceptional thoroughness, Schmugge sifted through the thick volumes of registers in the Vatican Secret Archives for his research. Here he presents the exciting, almost unbelievable, and often scandalous fates of these late medieval men and women, while highlighting the important connection between the papal monarchy and the social history of the laity in the later Middle Ages.

Posted on by Mark Movsesian

Call for Papers: Family, Marriage and Love in Eastern Orthodoxy

The Sophia Institute will host a conference, “Family, Marriage and Love in Eastern Orthodoxy,” at Union Theological Seminary in New York on December 7. The call for papers invites legal perspectives on the subject. Details are here.

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Bradley, “Essays on Law, Religion, and Morality”

This month, St. Augustine’s Press will publish Essays on Law, Religion, and Morality by Gerard V. Bradley (University of Notre Dame Law School). The publisher’s description follows.

The most controversial foundational issue today in both legal philosophy and constitutional law is the relationship between objective moral norms and the positive law. Is it possible for the state to be morally “neutral” about such matters as marriage, the family, religion, religious liberty, and – as the Supreme Court once famously phrased it – “the meaning of life”? If such neutrality is possible, is it desirable? Read more

Posted on by Mark Movsesian · 14 Comments

Chick-fil-A and the Coming Clash

That was fast. Last week, Mayor Thomas Menino announced that, because of COO Dan Cathy’s comments in favor of traditional marriage, Boston would not allow Chick-fil-A to open any restaurants in that city. Chicago Mayor Rahm Emanuel followed with similar statements. “Chick-fil-A values are not Chicago values,” he declared. The response from commentators on both the left and right was uniform and swift. Government cannot deny licenses because businesses express political opinions with which government disagrees: that’s what the Free Speech Clause is about. By this week, Menino had backed down, and New York’s Mayor Mike Bloomberg, a supporter of same-sex marriage, had distanced his city from the anti-Chick-fil-A campaign. The crusade to shut down Chick-fil-A seems to have ended, at least for now.

Consumers have every right to organize a boycott because they disapprove of what a firm’s COO has to say. Such boycotts typically fail, however, because of collective action problems. It’s hard to organize these things; most consumers simply don’t care enough about politics to have it drive their purchasing decisions. In the 1990s, conservatives failed when they tried to boycott Disney because of its support for gay rights, and liberals failed when they tried to Read more