Should the State Get Out of Marriage?

Utah makes family law, it seems. Perhaps because that state is the home of a large number of devout members of the Church of Jesus Christ of Latter Day Saints, a.k.a. Mormons, and churches of all stripes care about such things as marriage — and sometimes hold beliefs about them that are at odds with those of civil society. Recently, as you may know from the news, a couple of cases from Utah have shaken things up and have raised some fundamental questions — again.

In Brown et al. v. Buhman the plaintiffs, members of a polygamous (polygynous, specifically) clan, challenged Utah’s anti-polygamy law in US District Court. The court struck down as unconstitutional the portion of the legislation that prohibited cohabiting with more than one person, saving the sections affecting “marriage” which could be interpreted narrowly and escape the First Amendment. (The story is available on CNN.) Mere days later the same court, but a different judge, liberated the notion of marriage by striking down Utah legislation that restricted that state to a man and a woman: Kitchen et al. v. Herbert et al.. In this case, the state struck back and obtained from the Supreme Court of the United States a two-sentence order without reasons temporarily stopping same-sex marriages in Utah pending the outcome of the appeal of the original decision.

These cases and many others like them here, in the US and elsewhere in the world, have got some people wondering whether it might not be best if the state withdrew from the whole business of regulating marriage as such. Edward Zelinsky, for example, has a brief version of an argument in favour of abolishing civil marriage, to be found in the OUPblog. His adumbrated argument is essentially that the state should not, because it cannot, feasibly “define the family through the institution of marriage” and that an attempt to do so would fail to accurately reflect the diversity of forms the family now takes in western society. He hastens to make the obvious corollary point that if the state withdraws from civil marriage it doesn’t follow that it would or should withdraw from “domestic relations law.” We would still examine relationships and conduct in order to assess the need for state intervention respecting financial remedies and children.

For what it’s worth, this is very much my own view. I agree with both of Zelinsky’s points, and I would be glad if this point of attachment between law and religion could be severed. These two institutions — law and religion — belong, in my view, to different categories, sharing far too few tenets and premisses to make for useful intercourse, and attempts by one to address the other appropriately must ultimately fail or be simply incoherent.


  1. David Collier-Brown

    Conversely, the church might elect to leave it to the state. To oversimplify somewhat, the Anglican church celebrates the choice of two people to vow to live together, and probably raise children.

    This is in strong contract to the Catholic church, which celebrated marriage as a sacrament, a “means of or visible form of grace”.

    Perhaps all organized religions should celebrate the fact of marriage, and leave the laws of property and inheritance to the state.


  2. Mr. Collier-Brown makes a good point about religion leaving marriage alone. It seems the early Christian church blessed many different kinds of relationships without giving primacy to “marriage.” This would seem a better approach for organized religion to follow in the 21st century. As for the state, why should it bother defining relationships? Any time it does, it fails. Employment law is another example, the distinctions between “employees” and other types of workers are increasingly untenable. It has been suggested that employment and labour law be replaced with a law dealing with economic exploitation. One could add a good portion of domestic relations law to that category

  3. Simon,

    “These two institutions — law and religion — belong, in my view, to different categories, sharing far too few tenets and premisses to make for useful intercourse, and attempts by one to address the other appropriately must ultimately fail or be simply incoherent.”

    I’d argue that law is a religion, and what you’re saying is that some aspects of perceived morality and law need to be kept separate. The issue is how and what. That’s at least because, unless you define law in terms of morality – in the sense that no law is a valid law unless it’s good, or right, or however else you wish to measure the law’s merit – a law is valid if it’s validly enacted.

    And the legal system gets to define whatever its first principles are, hence the validity criteria.

    If one concedes that the validity of a legal system doesn’t depend on whether its premises are true, then there’s no valid difference between law and religion, at least in this sense.

    So, it depends what one means by religion, doesn’t it?

    I’m not saying anything you don’t know, of course. It’s the is-ought dilemma. When you were teaching law and I was a student, we were at the tail end of the Fuller-Hart and the beginning of then Hart-Dworkin debates. It’s a philosophical issue in western thought that’s known to have been bruited since at least Plato.

    Besides, graduates of Jesuit seminaries, Yeshivas, and similar institutions are probably as well-trained as anyone in the methods required to manipulate the legal system. I suppose that could mean something more than just that graduate of Jesuit seminaries, Yeshivas and similar institutions are … etc.


  4. [Answering some of my questions]

    If we define Religion as a belief system, isn’t that definition equally applicable to Law? If it is, then problem is content but the devil is in the details.