Joel Nichols (University of St. Thomas – Minnesota) has posted Misunderstanding Marriage and Missing Religion on SSRN. The abstract follows.

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. First, it is not possible to entertain a conversation about marriage without simultaneously having a discussion about its multi-faceted nature as pre-political, contractual, and covenantal. Marriage is not simply a creation of the state that can be altered at a whim, but a deeply personal matter imbued with community (and usually religious) overtones and involving the consent of two individuals.

Second, one must talk about religion when discussing marriage. Merely avoiding talking about religion and the important role it has played and continues to play will not advance the conversation about the nature of marriage. In fact, if one goal of the Candeub and Kuykendall proposal is to “lessen the impetus for protracted political, legal, and cultural struggles over same-sex marriage,” then omitting religion from the discussion will certainly consign the proposal to failure. It is likely, instead, that such a proposal will operate only as an accelerant in the ongoing social debate, for it will be viewed as a Trojan horse to promote same-sex marriage.