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

The Universe Doesn’t Judge You

Marc’s post about the establishment-clause implications of a yoga garden at the White House’s Easter Egg Hunt reminded me of something I saw twenty years ago as a lawyer for the federal government. In those days, and I assume today, too, the US Government’s Office of Personnel Management used to publish “employee wellness” newsletters to encourage healthful practices among government workers. Most of the time, the newsletters stressed things like exercise, nutrition, and avoiding drug abuse. On one occasion, though, the newsletter had a section on meditation and mindfulness. It advocated Eastern mind-calming techniques and offered a piece of advice about one’s behavior. I still remember it vividly today: “The Universe doesn’t judge you, but there are consequences.”

Now, meditation can have very helpful effects on the mind. Whenever I can discipline myself to practice it, I find my concentration greatly improved. And I don’t perceive anything un-Christian about meditation; if I did, I’d avoid it. But I thought then, and think now, that the line about the Universe not judging us was a government religious endorsement. After all, one obvious implication of the statement, which seems vaguely Buddhist, is that the Christian concept of the Last Judgment is wrong: there is no God, only an impersonal Universe, which will not demand a final accounting from us. Surely these are religious concepts. Yet there the statement was, in an official government publication, meant for employees to consider and apply in their daily lives.

I think it’s fair to say most Americans would not think of this sort of statement, or the yoga garden at the White House event, as government religious endorsements. But why not? Meditation is closely associated with Buddhism and yoga with Hinduism. If a government publication endorsed Christian prayer–a highly effective mind-calming technique for many people–lawsuits would surely follow. So why aren’t people suing about government-sponsored meditation and yoga gardens?

I can think of a few possibilities: 

  1. The religious messages are minimal and attenuated. One can encourage meditation without endorsing Buddhism and yoga without endorsing Hinduism. People who object are busybodies and cranks.
  2. The religious messages are imperceptible to most Americans, who know little about Eastern religions.
  3. The messages are “spiritual, not religious,” and therefore unobjectionable.
  4. The messages are included in the interests of multicultural harmony and religious tolerance. Heck, it was an Easter Egg Hunt!
  5. The messages are religious in a good way, not like those bad, judgmental messages associated with theistic religions like Christianity. So it’s OK for government to endorse them.

Which of these explanations seems most plausible? I leave it to you, gentle reader.

Nelson on the Free Exercise Rights of Institutions

James David Nelson (Columbia University Law School) has posted Conscience, Incorporated. Nelson’s essay evaluates the ability of corporations and other institutions to claim exemptions from the Affordable Care Act’s contraception mandate under the Free Exercise Clause. The abstract follows.

Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.

This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions.

The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law.

Keshavjee, “Islam, Shari’a and Alternative Dispute Resolution”

This June, I.B. Tauris Publishers will publish Islam, Shari’a and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community by Mohamed Keshavjee (The Institute of Ismaili Studies). The publisher’s description follows.Islam, Sharia and Alternative Dispute Resolution

The meanings and contexts of Shari’a are the subject of both curiosity and misunderstanding by non-Muslims. Shari’a is sometimes crudely characterised by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs. This groundbreaking book shows that Shari’a and its ‘fiqh’ (laws set forward by various Islamic legal schools) comprise a far more nuanced matrix of interpretations than is often assumed to be the case. Far from being monolithic or impervious to change from without, Muslim legal tradition has – since its beginnings in the early Islamic period – placed an emphasis on equity and non-adversarial conflict-resolution. Mohamed Keshavjee examines both Sunni and Shi’a applications of Islamic law, demonstrating how political, cultural and other factors have influenced the practice of fiqh and Shari’a in the West. Exploring in particular the modern development of Alternative Dispute Resolution (ADR), the author shows that this process can revitalise some of the essential principles that underlie Muslim teachings and jurispudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.