Article Jul 2, 2015

Point/Counterpoint: Signing civil marriage licenses

Bart Barber: Protecting families by signing civil marriage licenses

If changes in American marriage law make American churches rethink their practices surrounding weddings in order to make them more distinctively Christian, that will be a good thing. Those reforms, however, need not jettison the signing of civil marriage licenses by pastors.

The government is involved in marriage because marriage relationships often present issues of interpersonal justice. Adjudicating matters of interpersonal justice is precisely the cause for which God ordained government. When marriage goes awry, the government can protect the rights of spouses and children by means of its coercive force in ways that churches simply cannot and should not do.

We need government to be involved in the business of marriage.

We must not hesitate to call the state when we credibly suspect abuse. Churches preach against abuse and should discipline abusers spiritually, but we also need the state to come alongside our spiritual discipline and effect physical discipline upon abusers. In like fashion, the spiritual aspects of marriage and the temporal legal aspects of marriage work in cooperation with one another. I do not always agree with what our state does in terms of family law, but that does not prevent me from recognizing our need for the state to intervene in family situations that demand coercive intervention, whether by jailing an abusive father or by enforcing spousal or child support upon a neglectful one.

Because this protection is important, to eschew the signing of marriage licenses is either to deny those protections to spouses and children or to push those couples who are marrying into other arrangements. In some states like Texas, it may mean pushing couples into common-law marriages. Does it serve our purposes to lead couples out of an institution (statutory marriage) recently opened to same-sex liaisons and into an institution (common-law marriage) long associated with premarital cohabitation?

Common-law marriage lines up with the Christian ideal of marriage no better than statutory marriage does. If not common-law marriage, it may mean pushing couples into the offices of their local Justices of the Peace, where they will obtain the same kind of marriage we refused to officiate. For the marrying couple, then, they would obtain either the exact same thing as if we had signed the license (statutory marriage by other means) or something less Christian (common-law marriage or no legal protection of spouses and children).

The sole remaining reason to forego the signing of marriage licenses is to prevent pastors from serving as “agents of the state.” Some fear that being perceived as an agent of the state will be the camel’s nose under the tent by which the state will eventually coerce churches to bless same-sex unions. I think this fear is naïve and overly suspicious. It is overly suspicious because pastors have been discriminating over whom they will and will not marry for centuries (I won’t marry two Jews, two men, three Christians, two people who won’t attend premarital counseling), but no jurisprudence exists suggesting any move on the part of the state to clamp down on this form of discrimination. To begin to force pastors and churches to perform marriages to which they object would amount to a dramatic change in the landscape of American law.

If such a dramatic change were to occur, it is naïve to think that a little objection like, “But I don’t sign marriage licenses,” would forestall it. To speak frankly, my church’s 501(c)(3) exemption probably exposes me to more entanglement with the state than does my signing of marriage licenses, but I don’t think many churches intend to relinquish that exemption until it proves to be absolutely necessary. I’m simply arguing that we should treat the signing of marriage licenses in the same way by waiting to discontinue our involvement in this aspect of American family law until the state forces us to do so.


Peter Leithart: Intensifying political struggle by refusing to sign civil marriage licenses

Earlier this year, I signed a pledge stating that I will no longer sign state-issued marriage licenses when I perform a wedding. I will no longer declare the couple married “according to the laws of this state.” The reason is simple: What I do at a wedding and what the United States increasingly defines as marriage are radically different things, and I want to make the difference as clear as I can.

I signed the pledge despite recognizing that some of the criticisms that have been lodged against this move are reasonable and possibly correct. Critics are definitely correct that refusing to sign licenses is inadequate, half a response or less. Critics may be correct that it will have little impact, and they may also be right that it’s premature. Some of the criticisms are laughably wrong-headed, especially those who argue that refusing to sign marriage licenses is a retreat from the public square.

My Southern friends assured me that my move was unnecessary since many Southern states have statutes and constitutional provisions defining marriage in Christian terms. They warned me that refusing to sign a license was illegal in Alabama, an act of civil disobedience. Then a federal court demanded that Alabama counties start issuing marriage licenses to same-sex couples, and the state Supreme Court responded by ordering courts to uphold the Alabama Constitution and stop issuing marriage licenses. When the dust settled, I found myself in the good company of Alabama’s probate judges–all of us defying the non-law coming down from federal courts. None of us are signing marriage licenses.

Taking a pledge is a small gesture, but gestures provoke and can galvanize. It’s a bit of political theater, but theater can shatter complacency. Political theatrics must be preceded and followed by principled and strategic discussion, but effective political theater raises the stakes and intensifies a political struggle.

And intensity is what we need. American legal institutions have been rapidly redefining humanity’s oldest social relation, a relation God originally designed and still creates. Given the breathtaking hubris of federal redefinitions of marriage and the totalitarianism implicit in the Supreme Court’s decision in United States v. Windsor, discussion cannot go on forever. It must begin to give way to deeds.

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