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.