The State and a Definition of Marriage

[Peter_Plato]

If we liken the legal definition of marriage and the state’s interest in it to the legal definition of being licensed to drive and the state’s interest in that, perhaps we can better understand the issue of redefining marriage.

First, we must identify what the actual interest of the state is in each case. That interest would seem to be the protection of the well-being of individual citizens so that no harm comes to them without their consent.

In order to qualify for a license to drive it is necessary for any individual to demonstrate to the state their capacity to do so. They must be of a certain age, pass learner exams to demonstrate knowledge and then a practical test to prove skill. Only then have they fulfilled the basic requirements for the state to allow them to take on the task of driving. Why does the state have this right to impose licensing requirements on anyone? The reason is because driving a vehicle is a potentially lethal activity to others. An accident can cause great damage and harm to others, so the state has the right to protect its citizens from harm.

Driving is about freedom of movement, but the state has no justification for restricting movement unless it has the potential for harming others. The state cannot make licensing laws except where some “power” is available to some that could entail harm to others. Licensing is about restricting that power by determining who can execute the power and under what conditions. Driving is only licensed because of its potential to harm. Walking does not require a license because typically no harm ensues from carrying out the capacity to walk.

Let’s move to the second issue, the creation of new life. Does the state have an interest in how the lives of new citizens will be created and protected? Of course, because any new citizens will actually become citizens worthy of protection from the moment they are created. It is the state’s responsibility to protect and secure their safety as citizens precisely because they are vulnerable to the actions of others.

What is the means by which new citizens come into being? Procreative sexual union. What is the nature of that union that makes it procreative? It is between a man and a woman with specific capacities. Does the state therefore have a right to control some of the parameters for these unions through licensing? Yes, because it has a responsibility to look after the well-being of all its citizens, existing and future. By what legislation does this responsibility of the state obtain? By its laws surrounding obtaining a marriage license.

Why shouldn’t the state allow same sex marriages? Precisely because the state is not and should be concerned with non-procreative sexual liaisons. The state has no legal responsibility or right to mandate about them if they have nothing to do with procreation.
That is why the legal definition of a licensed marriage should only be about procreation because it is only under those terms that the state has any right to interfere. Other kinds of unions should not be included under a legal definition of marriage because these unions are not about taking responsibility for creating new life. It is beyond their capacity to do so.

Reflect back on licensing drivers to operate a motor vehicle. It is only the driver inside the vehicle who is responsible for its control, the passengers are not. Why does the driver bear the responsibility? Because, by taking charge of the vehicle, it is the driver alone who can ‘empower’ the vehicle go where it is intended, to arrive safely at its destination. The passengers are powerless to achieve the “goal” of driving, since that is not in their power to control.

What are the ends of procreation? To bring about new life. Who can achieve that end? One man and one woman. By what means should the state ensure that that end is responsibly undertaken to protect resulting new life? By issuing a license of marriage to ensure that those with the power to create new life (a man and a woman) do so in a responsible and committed way.

Why shouldn’t same sex couples be allowed to marry? Precisely because they do not have the power to conceive new life. That would be like asking why aren’t passengers expected to have a driver’s license when they get into a vehicle. Precisely because they are not the ones undertaking to fulfill the capacity of “driving” the car. They are not the ones bearing the responsibility for creating new life because they simply cannot.

Why should same sex couples not be allowed to marry? They are allowed to marry. They are free to obtain the license from the state that allows them to join into a union that will be procreative if they so choose.

Why can’t same sex unions be called marriages by the state? Precisely because the state cannot force those without the power to fulfill a legally mandated role to have to be licensed for doing so. It would be like the state mandating that all passengers, just because they get into a motor vehicle, must be licensed. It is ridiculous and unjust for the state to mandate that precisely because same sex couples do not have the power to create new life which is the reason for any marriage licensing legislation to exist in the first place. Marriage legislation is inherently about the state’s responsibility for the protection of new life created by responsible sexual union. It isn’t about anything else.

 

[silenced]

“Why shouldn’t the state allow same sex marriages? Precisely because the state is not and should be concerned with non-procreative sexual liaisons. The state has no legal responsibility or right to mandate about them if they have nothing to do with procreation.
That is why the legal definition of a licensed marriage should only be about procreation because it is only under those terms that the state has any right to interfere. Other kinds of unions should not be included under a legal definition of marriage because these unions are not about taking responsibility for creating new life. It is beyond their capacity to do so.”

This totally insults and then disregards the option for same sex couples to adopt children and raise them together. The act of procreation, wondrous as it is, does not always create a family. There are many descriptions of families in our society. Children are being raised in all sorts of environments. They are entitled to the same protections as children of heterosexual couples.

Oy.

 

[Giants]

This totally insults and then disregards the option for same sex couples to adopt children and raise them together. The act of procreation, wondrous as it is, does not always create a family. There are many descriptions of families in our society. Children are being raised in all sorts of environments. They are entitled to the same protections as children of heterosexual couples.
Oy.

It also disregards the fact that the State already licenses and recognizes marriages where the couple either doesn’t want kids, or can’t have them.

 

[odile53]

Since it’s harder to get a driver’s license than a marriage license in most states, where they’ll pretty much issue one to anyone sober enough to stand up and lie about their age, this is my somewhat snarfy proposition to how the states ought to consider issuing a marriage license.

Vision test: Both parties should be able to describe to an uninterested third party precisely what it is that they see in each other.

Written test: A generic written examination covering such topics as communication, conflict resolution, negotiation, principles of budgeting, and joint goal setting.

Road test: Two weeks’ occupation of a third story cold water walk-up flat with two toddlers with colds, a broken mattress, an overdrawn check book, and a clogged toilet. No sexual intimacy allowed.

Hmmm, as I’m looking at my proposed test, maybe the Church ought to consider replacing the anesthetizing pre-Cana program with such a boot camp type of series of exams. I’m thinking a couple of elderly retired Jesuit professors would be a good panel for the vision test, a couple of those guys could pick apart anything that smacks of faulty logic! It would certainly eliminate the wimps who want to run for the hills the first time romance flickers a little!

Marriage ain’t for a couple of kids or a couple of chickens!

 

[philial]

The whole thing would be a lot simpler if the state got out of the marriage game completely. All unions should be regarded as civil unions, with churches referring to their rites as marriage, or sacramental marriage, if their theology allows. That ways gays are nullified and churches content.

 

[Peter_Plato]

It also disregards the fact that the State already licenses and recognizes marriages where the couple either doesn’t want kids, or can’t have them.

The point being that the state has no business issuing licenses to these couples precisely because the state has no legal or justifiable interest in doing so. Basically, it is like issuing a driver’s license to someone who doesn’t drive or is incapable of doing so.

If they choose not to drive then the state has a reason to still issue a license. They will be able to drive, if they change their minds.

In the case of a couple that can’t have children, they wouldn’t need a state license but still could have a ceremony of some kind and proclaim a kind of social marriage, but it simply would not need to be a legal designation. Blind individuals cannot be issued a driver’s license, either, because of inability.

No fault divorce laws have effectively put the state out of the picture regarding the contract of marriage between two individuals. Why would two individuals require a state sanctioned contract to enter into a committed relationship when the state doesn’t view commitment to be an aspect of the contract?

No, the only reason the state should be involved here is to protect harm from coming to vulnerable citizens. The only vulnerable parties in a marriage are the children that result. That is, effectively, the state’s only ground for involvement.

Again, the state does not require those without a particular power to be licensed to use it. The only unique power in this case is the power to procreate. That is the only reason for a license to be required.

To require it for any other reason nullifies its effectiveness. Here’s why:

Imagine the state were moved to redefine the legal term “driver” to include any passenger because some passengers have insisted they be included under the umbrella definition because, they too, are involved in the act of movement in a car.

The problem is, if the state were to do that, it would either then:

1. require that all passengers meet the testing requirements for driving which would be ridiculous because passengers don’t require skill to ride in a vehicle.
2. loosen the definition of driver to mean any inhabitant in a vehicle. Which is problematic because that disregards the skills required to drive and effectively makes back seat driving a legally sanctioned action. Passengers would have a legal right to tell the driver how to drive without having the skills or knowledge to do so.

The point being that the sole reason the state has a definition of marriage in the first place is to license and control a particular power, the power to procreate. To redefine the legal term that disregards that power is using the same logic as redefining the legal term “driver” to not include the actual power to drive a vehicle that the license is for.

It is a legally untenable position.

 

[Peter_Plato]

"

This totally insults and then disregards the option for same sex couples to adopt children and raise them together. The act of procreation, wondrous as it is, does not always create a family. There are many descriptions of families in our society. Children are being raised in all sorts of environments. They are entitled to the same protections as children of heterosexual couples.

Oy.

No it doesn’t. Adoption laws are not exclusive to married couples. For the most part actual marriage is somewhat exclusive of adoption since a couple with procreative powers would not need to adopt.

Adoption laws could be based upon demonstrating stability. Marriage laws on demonstrated ability. These are completely separate spheres of jurisdiction and judged on their own merit.

Why would a marriage license be required to adopt, since adoption is not about creating life, it is about caring for life? Day care services do not require a marriage license, do they?

If social change is being advocated, then it should be undertaken in a reasonable and consistent manner.

As to “…They are entitled to the same protections as children of heterosexual couples…”

I fully agree, but merely issuing a marriage license will not assure that, if any “loving relationship” is included by definition precisely because a loving coupleship does not automatically mean that “love” will be extended to children by its very definition as being an emotional attraction between two individuals. If those emotions expand to include others and the couple want to adopt, then their capacity to adopt should be based upon their stability and ability to care for children. That is not precluded by keeping the definition of marriage tied to its essential power, because even single individuals can adopt.

Heterosexual relationships are productive of new life, that is their essential “power” and provides the only reason for the state to become involved in the first place.

There is no legitimate legal reason for the state to license same sex marriages, just as there is no legal reason for the state to redefine the term “driver” to include all passengers.

Oy!

 

[Peter_Plato]

The whole thing would be a lot simpler if the state got out of the marriage game completely. All unions should be regarded as civil unions, with churches referring to their rites as marriage, or sacramental marriage, if their theology allows. That ways gays are nullified and churches content.

The state can’t get out completely because the rights of children to be responsibly raised by their biological parents would be at risk. As it stands, this would seem to be the only reason for the involvement of the state in licensing a marriage, so redefining the legal term to be a “loving commitment between two people” essentially nullifies the state’s involvement completely, leaving biological offspring completely at the mercy of “feelings,” because responsibility for them will have been completely removed by definition.

 

[rossum]

Since it’s harder to get a driver’s license than a marriage license in most states, where they’ll pretty much issue one to anyone sober enough to stand up and lie about their age, this is my somewhat snarfy proposition to how the states ought to consider issuing a marriage license.

Vision test: Both parties should be able to describe to an uninterested third party precisely what it is that they see in each other.

Written test: A generic written examination covering such topics as communication, conflict resolution, negotiation, principles of budgeting, and joint goal setting.

Road test: Two weeks’ occupation of a third story cold water walk-up flat with two toddlers with colds, a broken mattress, an overdrawn check book, and a clogged toilet. No sexual intimacy allowed.

Hmmm, as I’m looking at my proposed test, maybe the Church ought to consider replacing the anesthetizing pre-Cana program with such a boot camp type of series of exams. I’m thinking a couple of elderly retired Jesuit professors would be a good panel for the vision test, a couple of those guys could pick apart anything that smacks of faulty logic! It would certainly eliminate the wimps who want to run for the hills the first time romance flickers a little!

Marriage ain’t for a couple of kids or a couple of chickens!

You left out the fertility test. Since marriage is about procreation, you have to test fertility in both partners. Can’t have all those post-menopausal women getting married. They aren’t eligible because they can no longer procreate.

rossum

 

[lllj]

It also disregards the fact that the State already licenses and recognizes marriages where the couple either doesn’t want kids, or can’t have them.

This has been my primary issue with arguments against civil same sex marriage. If we go with this approach - that the state’s only interest in marriage should be regarding procreation - then we need to discuss other issues as well. Why does the state have any interest in marriages of couples with no desire for or no ability to have children? (Why do Catholics not consider this a radical redefinition of the term?)

 

[Peter_Plato]

You left out the fertility test. Since marriage is about procreation, you have to test fertility in both partners. Can’t have all those post-menopausal women getting married. They aren’t eligible because they can no longer procreate.

rossum

Why would the state be interested in licensing post-menopausal women to undertake an activity which they do not have the capacity to fulfill? Are you saying the state should be legislating the morality of two people living together if it has no stake in the relationship?
The state couldn’t stop them from living together because it would have no right to. A license to marry can only be required of those who have the power to do what is in the state’s jurisdiction to control - procreate - precisely because it is in that power that the state bears responsibility for its control. The well-being of innocent third parties, is at stake, to protect offspring from harm.

As to a fertility test, perhaps that should be required, just as a road test is required in order to drive. If the person is unable to drive, why issue a license to them? That does not preclude an infertile couple from having a social ceremony to celebrate their coupleship, but the state need not be involved in that relationship precisely because it is not within the couple’s capacity to fulfill the requirements for licensing.

Pity or empathy is not a reason for legislating licensing requirements. We don’t issue driver’s licenses to the blind or senile because of pity. They just don’t qualify because they don’t have the capacity to fulfill the requirements. The state cannot stop them from “living together” but the state has no interest in doing so. As you say, it is not in the business of legislating morality.

 

[rossum]

Heterosexual relationships are productive of new life, that is their essential “power” and provides the only reason for the state to become involved in the first place.

False. Only some heterosexual relationships are productive of new life. If the production of new life is “essential” then a proportion of heterosexual relationships fail to include that “essential” ingredient.

If the production of new life is not “essential” then some other criterion is needed.

As a matter of history, marriage has usually not required children. Even in the Catholic tradition, childlessness was not grounds for an annulment; though non-consummation was. For civil marriage I am not aware of any recent legal requirement for either consummation or children.

A requirement for new life also results in a theological nonsense. Since the couple is not properly married until their first child is conceived, their first marital act must start as the sin of fornication because they have not, at that time, fulfilled the “essential” requirement for marriage.

You really need to think your idea through more carefully it seems to me.

rossum

 

[lllj]

The point being that the state has no business issuing licenses to these couples precisely because the state has no legal or justifiable interest in doing so. Basically, it is like issuing a driver’s license to someone who doesn’t drive or is incapable of doing so.

If they choose not to drive then the state has a reason to still issue a license. They will be able to drive, if they change their minds.

In the case of a couple that can’t have children, they wouldn’t need a state license but still could have a ceremony of some kind and proclaim a kind of social marriage, but it simply would not need to be a legal designation. Blind individuals cannot be issued a driver’s license, either, because of inability.

No fault divorce laws have effectively put the state out of the picture regarding the contract of marriage between two individuals. Why would two individuals require a state sanctioned contract to enter into a committed relationship when the state doesn’t view commitment to be an aspect of the contract?

No, the only reason the state should be involved here is to protect harm from coming to vulnerable citizens. The only vulnerable parties in a marriage are the children that result. That is, effectively, the state’s only ground for involvement.

Again, the state does not require those without a particular power to be licensed to use it. The only unique power in this case is the power to procreate. That is the only reason for a license to be required.

To require it for any other reason nullifies its effectiveness. Here’s why:

Imagine the state were moved to redefine the legal term “driver” to include any passenger because some passengers have insisted they be included under the umbrella definition because, they too, are involved in the act of movement in a car.

The problem is, if the state were to do that, it would either then:

1. require that all passengers meet the testing requirements for driving which would be ridiculous because passengers don’t require skill to ride in a vehicle.
2. loosen the definition of driver to mean any inhabitant in a vehicle. Which is problematic because that disregards the skills required to drive and effectively makes back seat driving a legally sanctioned action. Passengers would have a legal right to tell the driver how to drive without having the skills or knowledge to do so.

The point being that the sole reason the state has a definition of marriage in the first place is to license and control a particular power, the power to procreate. To redefine the legal term that disregards that power is using the same logic as redefining the legal term “driver” to not include the actual power to drive a vehicle that the license is for.

It is a legally untenable position.

Sorry, didn’t finish reading the thread before I posted.

So basically, you’re saying the state shouldn’t have an interest in infertile couples, correct?

While this seems like a reasonable role for the state to have regarding marriage, I find it difficult to think about this in the context of the same sex marriage debate. The problem is that this isn’t actually the current role of the government - the state does marry couples without concern for whether or not there will be procreation. Which is what makes banning same sex marriage seem discriminatory for me. If they are going to allow plenty of other couples who won’t have kids get married, why not allow gay couples?

Are you saying more that we, as Catholics, should be arguing for the state to completely change its role in marriage to focus solely on procreation?

 

[Peter_Plato]

This has been my primary issue with arguments against civil same sex marriage. If we go with this approach - that the state’s only interest in marriage should be regarding procreation - then we need to discuss other issues as well. Why does the state have any interest in marriages of couples with no desire for or no ability to have children? (Why do Catholics not consider this a radical redefinition of the term?)

Actually, basing state marriage licensing on procreative capacity would be very much in line with the Catholic POV, which is a very reasonable one.

The problem is that proponents of SSM are attempting to turn this into a moralizing perspective by claiming that state marriage licenses are discriminatory against those, like passengers, who are not actually utilizing a power that the licensing was originally intended for.

Since, through no fault divorce laws, the state has lost sight of one aspect of marriage as a legal agreement between two parties, it has no motive or grounds to license based upon marriage as an agreement, since the state has ruled that the agreement is only as binding as the couple agree. In reality, that is not a binding contract, by definition, since the terms of the “contract” allow either party to terminate it at will.

The only grounds, that remain for the state to be involved are to protect third parties from harm, in this case, children. Without this as the grounding basis of marriage laws, then the state cannot, dictate any terms of a marriage license, since, effectively, it would be involving itself in the bedrooms of the nation. A place it should not reside. Therefore, marriage licensing, and the legal definition of marriage, can only be justified by the state in order to prevent harm to third parties - children of procreative unions.

Any other position would be unconstitutional. Why would anyone need a driver’s license except to assure the state that an individual is not a potential menace to others? The state cannot license walking precisely because doing so is unconstitutional. If walking were potentially harmful to others, then the state would have cause to be involved.

Sexual relationships that do not result in actual “harm” to others outside the relationship should not be licensed. It is against civil liberty for the state to do so. However, procreative unions can bring about harm to third parties and therefore, only these ought to require licensing from the state.

 

[Peter_Plato]

False. Only some heterosexual relationships are productive of new life. If the production of new life is “essential” then a proportion of heterosexual relationships fail to include that “essential” ingredient.

Only some licensed drivers actually do drive at any one time. Being licensed to drive means that the state has determined that a person has the capacity to drive. The state does not force the driver to actually drive if a license is issued.

Similarly, a marriage license would be issued to those who have the capacity to procreate and care for children. The state would not require them to actually do so, just that the state has determined their capacity to do so and allows that to occur should the couple choose to begin what they have been licensed, I.e., been approved, by the state to undertake.

If the production of new life is not “essential” then some other criterion is needed.

There is no other justifiable reason for the state to be involved. If you can provide one, please do.

As a matter of history, marriage has usually not required children. Even in the Catholic tradition, childlessness was not grounds for an annulment; though non-consummation was. For civil marriage I am not aware of any recent legal requirement for either consummation or children.

A requirement for new life also results in a theological nonsense. Since the couple is not properly married until their first child is conceived, their first marital act must start as the sin of fornication because they have not, at that time, fulfilled the “essential” requirement for marriage.

You really need to think your idea through more carefully it seems to me.

rossum

This is not much of an objection, really. No one is claiming that marriage only starts at consummation. That would be like claiming that your status as a “driver” only begins when you actually drive.

That the state licenses a couple to be married only means that the couple have been approved by the state to begin procreating and raising children. There is nothing in a marriage license that would dictate when and where that is to happen, just as there is nothing in a driver’s license to dictate when and where individuals are to drive. The only difference is that a marriage license has been issued to a couple who have thereby agreed to begin procreating and raising children together at some time but not with anyone else. When and where they will do that is their right to determine.

I think you need to read through and consider my idea more carefully, because it effectively dismantles the case for SSM based upon the only appropriate and tenable grounds that the state has to be involved in licensing and legally defining marriage that remains to it.

 

[Peter_Plato]

Sorry, didn’t finish reading the thread before I posted.

So basically, you’re saying the state shouldn’t have an interest in infertile couples, correct?

While this seems like a reasonable role for the state to have regarding marriage, I find it difficult to think about this in the context of the same sex marriage debate. The problem is that this isn’t actually the current role of the government - the state does marry couples without concern for whether or not there will be procreation. Which is what makes banning same sex marriage seem discriminatory for me. If they are going to allow plenty of other couples who won’t have kids get married, why not allow gay couples?

Are you saying more that we, as Catholics, should be arguing for the state to completely change its role in marriage to focus solely on procreation?

The state currently licenses drivers who may or may not ever use that ability to actually drive. The concern of the state is to determine whether they are “fit” to drive and don’t pose a menace to others.

By licensing marriage, the proper role of the state is to determine whether the couple are “fit” to create and raise children. The criteria bears some flexibility, but capacity for procreation would be a necessary condition, just as having a body and mind capable of handling a vehicle would be a necessary condition for a person to drive one.

The reason that procreation would have to be a necessary criteria is precisely because the only interest of the state in the marital union is for the protection of the innocent parties to the agreement - any resulting children. Why would the state need to issue a license to anyone else except if this potential harm could come about? It wouldn’t and shouldn’t because a license for any other reason would be imposing some incidental moral position on citizens.

 

[fix]

Sorry, didn’t finish reading the thread before I posted.

So basically, you’re saying the state shouldn’t have an interest in infertile couples, correct?

While this seems like a reasonable role for the state to have regarding marriage, I find it difficult to think about this in the context of the same sex marriage debate. The problem is that this isn’t actually the current role of the government - the state does marry couples without concern for whether or not there will be procreation. Which is what makes banning same sex marriage seem discriminatory for me. If they are going to allow plenty of other couples who won’t have kids get married, why not allow gay couples?

Are you saying more that we, as Catholics, should be arguing for the state to completely change its role in marriage to focus solely on procreation?

Heterosexual couples are part of a class of people who are fertile by design. Homosexual pairings are part of a class of people that are always non fertile by design. There is no analogy.

 

[smndtupidisaftr]

The whole thing would be a lot simpler if the state got out of the marriage game completely. All unions should be regarded as civil unions, with churches referring to their rites as marriage, or sacramental marriage, if their theology allows. That ways gays are nullified and churches content.

Exactly. The whole concept of the state getting involved with marriage is nonsense that started with the French Revolution, and we know the fruits of that movement.

 

[fix]

Exactly. The whole concept of the state getting involved with marriage is nonsense that started with the French Revolution, and we know the fruits of that movement.

The only thing worse than what we have now would be to a accept the idea that state should not protect marriage. That is just what the moral relativists want.

The Church is not simply interested in the Catholic form of marriage. She cares for all of society.

 

[smndtupidisaftr]

The only thing worse than what we have now would be to a accept the idea that state should not protect marriage. That is just what the moral relativists want.

Nonsense, I defend this position and I am most certainly not a moral relativist. I’ll need a real argument as to why the state -which supports the destruction of marriage- should be in charge of defending the institution.

The Church is not simply interested in the Catholic form of marriage. She cares for all of society.

That’s great, but the state is not the Church.