Will Marriage Be Declared Unconstitutional?

By T.R. Robertson

The idea seems unthinkable. But same-sex couples aren”t the only ones saying marriage laws have discriminated against them. How will the church react if the government redefines marriage altogether?

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Those are the words of Justice Anthony Kennedy in the Supreme Court”s 5-4 majority opinion in United States v. Windsor, striking down the Defense of Marriage Act. Politically attuned Christians will recognize that key 2013 decision as among many that have laid the groundwork for this summer”s Supreme Court ruling on the constitutionality of limiting marriage rights for same-sex couples.

What may be less clear are the precedents these court decisions have created for an even more destabilizing change: the effort to declare the government”s establishment of marriage as unconstitutional.

A Political Movement

The idea seems absurd at first, but the proponents of the privatization of marriage aren”t laughing. They”re serious and are prepared to move forward with the next steps toward redefining marriage in the U.S.

David Boaz, executive president of the Cato Institute and a thought leader among libertarians, wrote “Privatize Marriage” in the April 1997 issue of Slate magazine.

Marriage is an important institution. The modern mistake is to think that important things must be planned, sponsored, reviewed, or licensed by the government. The two sides in the debate over gay marriage share an assumption that is essentially collectivist. Instead of accepting either view, let”s get the government out of marriage and allow individuals to make their own marriage contracts, as befits a secular, individualist republic at the dawn of the information age.1

Sally Kohn, liberal commentator for CNN and The Daily Beast, wrote in the Huffington Post that court rulings favoring same-sex marriage are wonderful, but don”t go far enough.

But that merely expands the in-group category a little more. Grandparents raising their grandkids, unmarried people on disability living together, single moms, cohabitating but unmarried couples””they are all still, formally and culturally, in the outer circle.2

As of right now, you won”t find many elected politicians willing to take a public stance in favor of privatizing marriage. As we”ve learned during the battles over same-sex marriage, politicians tend to lead by reading the trends of popular culture and then stepping out in front of an already existing movement. The real political and legal process toward this kind of change happens in courtrooms across several cities and states, building momentum until the higher courts are forced to look at the precedents and rule on the issues.

Stella Morabito, a senior contributor to The Federalist, lays out the details of what she describes as a well-planned strategy to move forward on a fast track to abolishing civil marriage in “Bait and Switch: How Same Sex Marriage Ends Family Autonomy” (see sidebar). Some of her conclusions are somewhat alarmist, but her thorough examination of the subject is worth reading.

The Legal Arguments

The religious institution of marriage has been codified, regulated, and established as a preferred and privileged status since the “Clandestine Marriage” act of 1753 in England. But the legal logic for getting the government out of the marriage business isn”t difficult to see.

The courts have rationalized nullifying restrictions on who can marry because they constitute unequal protection, but new laws extending protection to those in same-sex marriages still do so at the expense of the unmarried.

Bella DePaulo, author of Singled Out and Singlism: What It Is, Why It Matters and How to Stop It, wrote in the Huffington Post:

Because singlism is built right into American laws, it is not possible to be single and not be a target of discrimination. If you have followed the marriage equality debate, then you probably know that there are more than 1,000 federal laws that benefit or protect only those people who are legally married.3

Some Christian arguments against same-sex marriage have unwittingly lent support to advocates of privatizing marriage. The religious right says marriage, as an institution of God, should be regulated according to biblical principles. Privatization advocates counter that separation of church and state should then preclude the government from regulating a specifically religious institution like marriage. The government doesn”t police the qualifications or associated rights for church membership, Communion, or baptism. Why should it be in the business of regulating marriage?

If and when these issues are raised in the courts, there will be nonreligious arguments made in favor of retaining some form of recognition of marriage. Multiple studies have demonstrated the positive impact of married parents on the healthy development of children. A good case can and will be made that promoting marriage is essential for promoting “the general welfare.”

Because of these “general welfare” arguments, it”s unlikely we”ll see marriage actually declared “unconstitutional.” A wide range of citizens and organizations have too much vested interest in promoting marriage for it to be removed entirely from government oversight.

The goal of those seeking privatization of marriage is not necessarily to outlaw marriage, but to convince the courts that current marriage laws extend special privileges to one class of citizens and deny equal protection for others. If the courts agree, the tangled web of “unequal” marriage laws could provide a bonanza for the legal profession for years to come.

The Impact on Society

The primary effect of marriage privatization would likely be a drop in the percentage of couples who choose marriage over alternate living arrangements.

The loss of special tax and property benefits would lessen the appeal for some. If marriage becomes a matter of private legal contracts, rather than a simple state-backed marriage license, an increasing number of couples would likely choose to forego marriage due to legal costs.

For DePaulo, this isn”t a problem. Quite the contrary, she sees the unmarried as a positive influence on society.

If you want to know who is doing the most to keep our families and communities together, to create and nurture ties with neighbors and parents and siblings and friends, and to keep our cities lively and dynamic, and if you want your answer to be based on research and not ideology or polemics, well, your answer is not going to be married people.4

Many experts argue quite the opposite, based on sociology, history, and theology.

Sherif Girgis, Ryan T. Anderson, and Robert P. George collaborated on the scholarly and thorough book What Is Marriage? Man and Woman: A Defense which has quickly become a touchstone for the public debate on marriage. In it, they detail the likely effects of redefining civil marriage in the U.S. They write,

An unsound law of marriage will breed mistaken views””not just of marriage, but of parenting, common moral and religious beliefs, even friendship””that will harm the human interests affected by each of these. . . .

In short, then: redefining civil marriage might make it more socially acceptable for fathers to leave their families, for unmarried parents to put off firmer public commitment, or for children to be created for a household without a mother or father. But whatever the case, there will be a cost to depriving children of the love and knowledge of their married mother and father.5

The Response of the Church

Some in the church will respond by mobilizing to fight against these efforts through legal and political means. There”s certainly a role for the church in molding public policy. The church would do well, though, to learn its lessons from the decreasing success of legal and political battles against same-sex marriage.

Perhaps the best way we can get out in front of this issue is to look farther ahead and consider what a missional response to the societal impact of marriage privatization would look like.

Changes in the government”s definition of marriage would wipe the slate clean and provide renewed opportunities for every special interest to trumpet its own ideas about relationships, commitment, family, and parenting. Hopefully the cacophony of voices will provoke the church to realize the extent to which we”ve been adapting and adopting the American way into our expression of God”s intentions for the family.

Rather than simply reacting against nonbiblical ideas in the public square, the church should seize on this opportunity to critically reexamine a truly biblical approach to marriage, unfettered by modern American cultural traditions. Only then can we speak in the public square with a truly distinct and holy message.

If marriage loses some or all of its legal and financial benefits, the church will need to redouble its efforts to preach about the importance of marriage and teach about the practical benefits of marriage. Promotion of the rewards of marriage would need to extend beyond the walls of the church and into the public arena with a creative and viral message.

An increase in the percentage of unmarried couples would impact the stability of relationships and families. History has shown the tendency of men to see the softening of marriage laws as license to come and go from relationships at will. The brunt of the erosion of marriage values disproportionately falls on mothers and children.

The church would need a plan to help meet the physical and spiritual needs of so many fractured families. Christian men would need to step up to the challenge of modeling godly values of commitment and faithfulness to their peers.

On the other hand, churches could actually see an increase in the unchurched seeking a ceremony beyond signing a contract. Privatization would mean the end of justice-of-the-peace marriages. Ministers would have an opportunity for missional counseling as a prerequisite for a church wedding.

Redefinition of marriage is almost certain to continue to move forward incrementally, as it has for several decades. Perhaps reason will rule in the courts and the statehouses, and the importance of strong marriage laws for the general welfare of American society will anchor the ship of state against drifting toward the worst of these scenarios.

Whatever the eventual outcome, the church should not assume the battle for marriage is over simply because the same-sex lobby appears to be winning this particular skirmish. Every congregation and every Christian will have a continuing role in ensuring the institution of marriage gets the respect it deserves.

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1David Boaz, “Privatize Marriage,” Slate, April 1997; accessed at www.slate.com/articles/briefing/articles/1997/04/privatize_marriage.html.

2Sally Kohn, “Prop 8: Let”s Get Rid of Marriage Instead!” Huffington Post, August 6, 2010; accessed at www.huffingtonpost.com/sally-kohn/prop-8-lets-get-rid-of-ma_b_673238.html.

3Bella DePaulo, “The True Meaning of Singlism,” Huffington Post, January 9, 2013; accessed at www.huffingtonpost.com/bella-depaulo/the-true-meaning-of-singl_b_2438009.html.

4Bella DePaulo, “Who”s Afraid of Single People,” Psychology Today, October 2014; accessed at www.psychologytoday.com/blog/living-single/201410/whos-afraid-single-people.

5Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York: Encounter Books, 2012).

T.R. Robertson is a freelance writer in Columbia, Missouri. 

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Read More about the Marriage Debate

BOOKS

Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York: Encounter Books, 2012).

ONLINE

David Boaz, “Privatize Marriage,” Slate, April 1997, www.slate.com/articles/briefing/articles/1997/04/privatize_marriage.html.

David Murrow, Church for Men, “Marriage Will Be Ruled Unconstitutional,” November 4, 2014, www.patheos.com/blogs/churchformen/2014/11/marriage-will-be-ruled-unconstitutional.

Stella Morabito, “Why Singles Rights and Same-Sex Marriage Will Abolish All Marriage,” The Federalist, October 29, 2014, http://thefederalist.com/2014/10/29/why-singles-rights-and-same-sex-marriage-will-abolish-all-marriage.

Stella Morabito, “Bait And Switch: How Same Sex Marriage Ends Family Autonomy,” The Federalist, April 9, 2014, http://thefederalist.com/2014/04/09/bait-and-switch-how-same-sex-marriage-ends-marriage-and-family-autonomy.

Bella DePaulo, “Who”s Afraid of Single People,” Psychology Today, October 2014, www.psychologytoday.com/blog/living-single/201410/whos-afraid-single-people.

Sally Kohn, “Prop 8: Let”s Get Rid of Marriage Instead!” Huffington Post, August 6, 2010, www.huffingtonpost.com/sally-kohn/prop-8-lets-get-rid-of-ma_b_673238.html.

Bella DePaulo, “The True Meaning of Singlism,” Huffington Post, January 9, 2013, www.huffingtonpost.com/bella-depaulo/the-true-meaning-of-singl_b_2438009.html.