Campos: A contract called marriage

Published October 31, 2006 at midnight

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One of the bad effects of living in a fundamentally secular culture is that religious ideas don't get taken seriously, even by supposedly religious people. Consider, for example, the claim that marriage is a "sacred institution."

Marriage may well be a sacred institution for some people, but it can hardly be made so through the marriage licenses issued by our thoroughly secular government. Sacred marriages can only be created by sacred institutions. And treating the government as a sacred institution is something that addle-brained secularists are prone to do, not genuinely religious people.

Those who object to the government issuing same-sex marriage licenses should be campaigning to get the government to recognize what they consider "real" - which is to say religiously sanctioned - marriages. And there is a simple way to do this. But doing so would require religious believers to take their beliefs seriously.

Here's the plan: Civil marriage licenses would continue to be issued by the government, to whomever the government considered eligible to enter into that decidedly non-sacred condition. Religious marriages, however, would be a different matter.

Let us imagine that John and Jane decide to get married in the Roman Catholic Church. The following consequence would flow from this: As long as the Catholic Church said John and Jane were still married, they would be considered married by the government.

As a legal matter, divorce would remain a strictly civil rather than religious affair - but it would be available only to people who had either entered into civil rather than religious marriages in the first place, or to those who had been granted permission to dissolve their marriages by the religious institutions that had married them.

The practical consequence of this would be that if John decided he would prefer to enter into a civil marriage with Jackie (or Jack) rather than remaining married to Jane, he would be allowed to do this only if the Catholic Church agreed to release him from his wedding vows. Until then, he would remain married to Jane, and would continue to bear all the legal obligations created by that marriage.

This might sound like a radical idea, but legally speaking, it is merely the standard way in which we treat most business contracts. A friend of mine, law professor Stephen Safranek, is currently making this argument in an Ohio lawsuit involving a divorcing Catholic couple.

As Safranek points out, federal law requires that when a business contract lays out a process for arbitrating disputes that arise about the contract's meaning or enforcement, that process must be honored by the courts. Why shouldn't marriage contracts be treated with as much respect?

The answer has much to do with the hypocrisy of so many supposedly "religious" people in general, and "religious" politicians in particular. To choose an example at random, consider that someone like Newt Gingrich is even now blathering about how electing Nancy Pelosi speaker of the House will impose the degenerate values of the San Francisco Bay on the American people. (Pelosi has been married to the same man for 44 years, with whom she has had five children.)

Meanwhile Gingrich, the stalwart defender of "family values," is famous for divorcing his first wife while she lay in a hospital bed after uterine cancer surgery, and then being divorced by that second wife after she discovered he was having an affair with a (much younger) aide.

This kind of thing happens in part because, in America today, claiming that one believes in "traditional God-centered morality" or "the sacred institution of marriage" has no practical consequences.

Our government can help change that by treating religious ideas with respect. One such idea is that marriage is a sacred institution. Let us offer the people who say such things the legal option of giving those words some real meaning.

Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.

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