Apr 12

Can Ecclesiastical Marriage Be Separate From Civil Marriage?

David Dunn

Dr. Dunn argues that in God’s eyes civil marriage isn’t really marriage at all

Usually, the people I come across who favour same-sex ‘marriage’ are non-Christians. However, on the radio and internet recently, I have begun to encounter a strange phenomenon: Bible-believing Christians who are in favor of gay marriage, or at least its legalization.

The argument they use hinges on introducing a sharp distinction between civil marriage vs. ecclesiastical or sacramental marriage. This view is particularly attractive to those within traditions—such as the Eastern Orthodox church—who believe marriage to be a sacrament. If marriage is one of the church’s sacraments, so the argument goes, then marriages outside the church are not sacraments and therefore not really marriages at all. But if so—the argument continues—then we shouldn’t really be concerned about governments debasing the meaning of marriage because civil marriages have nothing to do with religious marriage anyway.

This is an attractive argument because it promises to make the church immune to the artifices of secular government through suggesting the religious marriage and civil marriage occupy what we might call ‘Non-overlapping magisteria.’

The notion of separating the civil from the ecclesiastical is possible because of prior ideas that have dominated since the Enlightenment about the separation of church and state. The notion also draws on postmodern theories about the privatization of religion and the false assumption that the state can be religiously neutral.

The question of whether ecclesiastical marriage can be separate from civil marriage was a question that was recently discussed on Ancient Faith Radio. The downloadable program was called Same-Sex Marriage: Separation of Church-State Issue, or a Moral Problem We Must Oppose? Although the program was addressing the issue in an American context, and from the perspective of the theology of the Eastern Orthodox church, the basic principles touch on many of the issues we are facing here in Britain.

I highly recommend the discussion. Father John Whiteford did an excellent job representing the long standing teaching of the church that civil marriage is a sexual union of a man and a woman. He also gives some very helpful information (grounded in the latest research) about what actually happens when gay people get ‘married.’ Father John also drew attention to the important point that the gay rights community has shifted the goal posts. Once content to be treated well and have equal rights, now their goal is to have their behaviour publicly sanctioned. This relates to a point we have made here and here, namely that what is really at stake in this debate is not equal rights at all, but the type of normalization that can only be achieved by homosexuals appropriating to themselves the powerful symbolic significance of marriage.

Both Father John and Dr. Dunn are Eastern Orthodox theologians and claim to be approaching the issue from the perspective of their church. However, Dr. Dunn is more like a liberal Episcopalian that wandered into the wrong denomination. For example, he argues that marriage in God’s eyes is a purely spiritual reality rather than a civil contract, he implies that the conjugal view of marriage has no natural law basis, and (most shocking of all) he suggests that there is no evidence that it benefits children to have a mother and a father.

Unfortunately, most of the time during the radio program Dunn merely assumed his conclusion, presupposing that gay ‘marriage’ is a coherent concept. However, it would only be a coherent concept if we first assume the civil marriage is either a union of persons or a social construct that can be redefined by the state. If these options be denied, then talking about same-sex ‘marriage’ is akin to referring to square circles or one-wheeled bicycles. (For a further explanation of this, see my Salvo article ‘Apples, Oranges and Gay Marriage‘) That is why I always put the word marriage in quotes when referring to it in a same-sex context since what we are really talking about is an incoherent concept.

Despite the criticisms that can be made of Dunn’s position, his argument is the most compelling presentation I have heard of the new and trendy idea that we can separate ecclesiastical marriage from civil marriage. It is clear from listening to Dunn and reading his blog that he is a thoughtful and reflective thinker, and that is something that counts for a lot when most champions of same-sex ‘marriage’ are content to simply dogmatise and emote instead of constructing rational arguments. Dunn’s argument is intriguing and seems to break down to the following points:

  1. Homosexuality is wrong.
  2. The only real marriages are those which occur as a sacrament of the church.
  3. Civil marriage isn’t a sacrament of the church and consequently it isn’t really a marriage in God’s eyes.
  4. Therefore, it is okay for the state to redefine civil marriage because this isn’t really ‘marriage’ in the full sense anyway.
  5. Because of premise 4 and because of the separation of religion and state, gay marriage ought to occur so that same-sex couples can have the same rights as everyone else.

I’ve tried to condense Dunn’s argument, and I hope he will let me know if I have misrepresented his position.

So, what’s wrong with this picture? First, it is important to remind ourselves that the point about equal rights in premise 5 is a complete red herring. As I recently pointed out in my ‘Q&A at Instant Analysis‘, both homosexuals and heterosexuals already have equal access to the institution of marriage, for no one is stopping homosexuals from getting married, since they are allowed to marry someone of the opposite sex. The fact that they do not want to do this is no more relevant to the question than whether the pope wants to marry. Just as it would be absurd to change the definition of marriage to include celibacy so that the Pope can have ‘equal access’ to the institution, so it is absurd to change the definition of marriage so that homosexuals can begin to want access to it.

But what about premises 2 and 3, which are the crux of Dunn’s argument? In his controversial Huffington Post article, Civil Unions by Another Name: An Eastern Orthodox Defense of Gay Marriage’, Dunn fleshes this out, arguing that marriages outside the church are not marriages at all. “Strictly speaking,” he writes, “our theology does not recognize the legitimacy of such marriages. They are not sanctified by the Spirit in the church.” Elsewhere in the same article he says that the Eastern Orthodox church only “tacitly recognize these civil marriages.”

Don’t be fooled by the subtitle of Dr. Dunn’s article. He understands the implications of legalizing same-sex ‘marriage’ little more than he understands the teachings of his own church, and his errors have been addressed in Fr. John Whiteford article ‘An Orthodox Response to an Anti-Orthodox Defense of Gay Marriage’ in addition to the Ancient Faith Radio interview. In both platforms Whiteford points out that this notion that the civil aspects of marriage can be partitioned off from religious marriage is something that no Christian tradition–least of all the Eastern Orthodox church–has ever taught. Nevertheless, this a-historical myth is picking up traction, for earlier this month an Eastern Orthodox priest said to me on Facebook that even if a man and woman are in a legal marriage, “until they are married in the Church, the two of them are living together, and having sex, while not married.”

This line of reasoning sees religious marriage as a purely spiritual reality and not a civil contract. As Dunn put it in his article Civil Unions by Another Name’, “Marriage, for us, is not a contract or a covenant” and he underscores this later by claiming (rather misleadingly), “We have no vows in our ceremonies.” Since what we as Christians mean by marriage exists on a completely different plane to what marriage means in secular civil society (according to this line of thought), the next step is to assert that it really isn’t any of our business if people in secular civil society want to debase marriage. After all, Dunn reasons, they haven’t got real marriage to begin with anyway.

There are many problems with this line of reasoning. First, as mentioned before, the idea that non-religious marriages are not marriages at all has never been taught, either by the Orthodox or any other Christian group in history. As Fr. John Whiteford pointed out in his refutation of Dunn, Canon 72 of the 6th Ecumenical Council states explicitly that one needs not be married in the church to have a real marriage. Moreover, throughout the Bible it is assumed that non-Christians participate in legitimate marriages.

If we were to be truly consistent with the spurious notion that religious marriages can be completely separated from civil marriages, then we would also have to say that no one was truly married in nations or times of history where there was no church. This is in fact a different species of the same nominalism apparent in those who argue that the state has the authority to define and redefine marriage, for it denies that marriage is a creation ordinance that exceeds and precedes the legal system. The church can take marriage up, sanctify it and turn it into a sacrament only because marriage has a prior existence in creation, just as the church can take up and sanctify bread and wine and turn it into a sacrament because bread and wine first have a prior existence in creation. To say that those outside the church can’t enjoy real marriage is like saying that those outside the church can’t experience real bread and wine. What they don’t experience is the sacramental dimension, but marriage is still marriage even when it is not sanctified by the church, just as bread and wine are still food even when they are not turned into a sacrament by the church.

Jesus taught that marriage is older than the church, being rooted in creation.

Jesus taught that marriage is older than the church, being rooted in creation.

This illustration gets to an important truth. From a Christian perspective–whether Protestant, Catholic or Eastern Orthodox–marriage is a creation ordinance that precedes and exceeds the church even as it precedes and exceeds the state. Marriage is rooted in the creation of the world. As our Blessed Lord said in Matthew 19:4-5: “And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female, and said, “For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh.”

Jesus is recognizing a reality that is older than both the church and the state because it goes back to the earliest days of creation. It is an institution rooted in nature, in the way the world simply is according to God’s design. This means that when civil society recognizes marriage, it is recognizing something that precedes and exceeds itself. This also means that when the church recognizes marriage and sanctifies it as a sacrament (a practice among Anglicans, Roman Catholics and Eastern Orthodox), it too is recognizing something that precedes and exceeds itself because it is rooted in a state of nature. Dr. Dunn de-emphasizes these natural dimensions of marriage by trying to make it something exclusively supernatural, calling it “a miracle.”

One need not be a Christian to recognize that the basis of marriage is a state of nature. As Girgis, Anderson and George point out in their book What is Marriage?, “There is simple and decisive evidence that the conjugal view [of marriage] is not peculiar to religion, or to any religious tradition. Ancient thinkers who had no contact with religions such as Judaism or Christianity–including Xenophanes, Socrates, Plato, Aristotle, Musonius Rufus, and Plutarch–reached remarkably similar views of marriage. To be sure, the world’s major religions have also historically seen marriage as a conjugal relationship, shaped by its social role in binding men to women and both to the children born of their union. But this suggests only that no one religion invented marriage. It is rather marriage–the demands of a natural institution–that has helped to shape our religious and philosophical traditions.” This is an important point in order to undermine the utterly simplistic argument that is often formulated along the following lines:

  1. It would be inappropriate for the state to impose religion on a secular public;
  2. The conjugal view of marriage is a function of religion
  3. Therefore, if the state supported the conjugal view, it would essentially be imposing religion onto the public.

The problem with this argument is that it implicitly undermines the reality that conjugal marriage is rooted in nature and in the fixities of how the world objectively is. The problem with those who champion gay ‘marriage’ is that by granting  the state the power to define and redefine the meaning of marriage, they are implying that marriage does not exist prior to government in a state of nature.

Once we recognize that the civil and ecclesiastical aspects of marriage are embedded in the way the world is, rooted in a state of nature that is older than either the state or the church, we see that it is a false dilemma to sharply distinguish between the civil and the ecclesiastical. Once this false dilemma is out of the way, it is no longer problematic to recognize that Christian marriage is a civil contract (though it is a lot more as well). Indeed, marriage ushers two persons into a web of civil rights, duties, and obligations in public civil society, and this is entirely appropriate. From a Christian point of view, it is appropriate that the family is and continues to be the foundation of civil society, a foundation that would be compromised if the most vital relationships in the family, such as those between a husband and a wife, are deemed to have only a spiritual rather than a civil legitimacy. Non Christians who favor the stability of the family and recognize the economic liability to family breakdown would do well to concur.

Now to be sure, the civil legitimacy of Christian marriage could conceivably be destroyed by a state that redefines marriage out of all recognition, leading to a point where religious marriage has little or no point of contact with civil marriage. Such a situation is possible, and there have been times in the past when this state of affairs has prevailed as Stuart Koehl has shown in a brief historical overview. Some Christians I know who hold ideas about the separation of church and state see this as an attractive solution, while radical libertarians would like to see civil marriage abolished completely so that the states “gets out of the marriage business altogether.” I would suggest that those who take this position have spent insufficient time reflecting on the implications. In their book What is Marriage?, Girgis, Anderson and George suggest some of the consequences that would arise if civil marriage is abolished:

Abolishing civil marriage is practically impossible. Strike the word ‘marriage’ from the law, and the state will still license, and attach duties and benefits to, certain bonds. Abolish these forward-looking forms of regulation, and they will only be replaced by messier, retroactive regulation – of disputes over property, custody, visitation, and child support. What the state once did by efficient legal presumptions, it will then do by burdensome case-by-case assignments of parental (especially paternal) responsibilities.

“The state will only discharge these tasks more or less efficiently–that is, less or more intrusively. It can’t escape them. Why not? Because the public functions of marriage–both to require and to empower parents (especially fathers) to care for their children and each other–require society-wide coordination. It is not enough if, say, a particular religion presumes a man’s paternity of his wife’s children, or recognizes his fights and duties toward their mother; or if the man and his wife contract to carry out certain tasks. For private institutions can bind only their own; private contracts bind only those who are party to them. A major function of marriage law is to bind all third parties (schools, adoption agencies, summer camps, hospitals; friends, relatives, and strangers) presumptively to treat a man as father of his wife’s children, husbands and wives as entitled to certain privileges and sexually off-limits, and so on. This only the state can do with any consistency.

But more than inevitable or necessary, it is fitting that the state should do this. Consider a comparison. Why don’t even the strictest libertarians decry traffic laws? First, the orderly traffic protects health and promotes efficiency, two great goods. Second, these goods are common in two senses; private efforts cannot adequately secure them, and yet failure to secure them has very public consequences. It is not as if we would have had the same (or even just slightly less) safety and efficiency of travel if people just did as they pleased, some stopping only at red lights and others only at green. Nor would damage from the resulting accidents (and slower shipments, etc) be limited to those responsible for causing it. To ensure safe and efficient travel at all, and to limit harm to third parties, we need legal coordination. Indeed, it is no stretch to say that the state owes its citizens to keep minimum security and order: to these we have a right. Finally, unlike private associations, the state can secure these goods, without intolerable side effects. Al this makes it appropriate for the state to set our traffic laws….

If something would serve an important good, if people ha a right to it, if private groups cannot secure it well, everyone suffers if it is lost, and the state can secure it without undue cost, then the state may step in–and should.

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