the fallacy of the recent legalization of marriage
One defense for the legitimacy of sacramental marriage without a legal marriage certificate is that the civil marriage is a recent invention in humanity's existence. Legality is simple when times are simple, but as a society becomes more complex, new realities arise over time, and more socialist, an entity that redistributes wealth, law must follow to provide enforceable, fair and consistent justice for its citizens. This 2007 NYT opinion piece by Stephanie Coontz sees the same things, but arrives at the opposite conclusion. She opens with this question,
WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.My thinking is that families could enforce the maintenance of justice in the marriage or divorce. Some societies today still use the dowry system as a means of enforcement. Coontz goes on to say the church in Europe also began to fill in for families, but then, unlike today, the church had tremendous political might and could enforce justice, unless resisted by an equal and opposite force, such as Henry the 8th, a certain king of England. A minister today can choose to only marry people sacramentally, but cannot adjudicate a divorce and decide on things like alimony or child support or garnished wages with any authority.
There is no dispute that racism in the United States was a contributing factor in the development of marriage licenses. But states that did not seek to prevent miscegenation were also issuing licenses as well. While anti-miscegenation law is a stain on the history of marriage licenses, it is not the sole reason for marriage licenses. With government benefits come the simplest means to distribute them. Coontz writes,
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.It's not as if these delineations arose out of a vacuum. I know of a situation where a hospitalized spouse was incoherent. Both the spouse of 15 years and romantic interest of 1 month showed up at his bedside. The possession of a marriage license made it simple for proper authorization to partner in medical decision-making. Certainly, the sick spouse made life complicated, but the license simplified it. This serves as one very real counter example to Coontz's penultimate assertion,
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.It's complicated examples like mine that demonstrate this is not simply a "purpose of some moralists". In the 1300's, there were no complicate medical decisions. A spouse got sick and either lived or didn't live. There were, however, inheritance laws that provided for legal children, but not those of extra-marital affairs. The second category of heirs, had to be provided for with prior intention by the father by investment in a last will and testament, which is personalized law.
Coontz offers a couple examples of privileges not afforded to the co-habiting,
A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments."Faithful commitment" is difficult for a court to determine, and, really, an expensive burden on society and taxpayers to invest in determine, when the simple marriage license, inexpensively and simply provides that information. If a co-habitant is unwilling to use the simple acquisition of a marriage license to entwine themself as kin to the other co-habitant, then why should the state assume the reticence was not without cause and therefore not award survivor benefits? But someone who affiliates as kin, is presumed to be mutually committed, and, hence, deserving of survivor benefits. If our society was not as socialist, without the social safety net we currently enjoy, then I could grant Coontz that the country needs to take a step back from licensing. But licensing addresses complexity. Perhaps she would like to see additional licenses, such as the Netherlands, which has three arrangements; marriage, registered partnership or a cohabitation agreement. Again, in a complex society, complex legal arrangements are efficiently offered without a moral component. But it's only amoral in one dimension, gender blind and religious commitment blind, but it's fully moral in how property rights and kinship rights are understood. Morality is an essential part of marriage. Knocking off some moral parts while only keeping others only weakens marriage, as institution, not strengthens it.
If a couple decides to forego the license, when they have it as an option, it declares something about their commitment and trust. They are rejecting the privileges that are legally reserved for each other. They are declaring they don't want to pass on their property rights upon death. They are declaring they don't want visitation or medical direction from their partner when their own health is at great risk. That is their freedom to declare. But why would a Christian deny those privileges to their spouse?