17 September 2006

The State should get out of the marriage business

I recently posted the following paper for discussion in the Christianity and Society forum.

Marriage in South Africa

Marriage and other social and domestic partnerships

Dr Stephen Hayes

1 Introduction

The Constitutional Court in South Africa has ruled that the
Marriage Act is unconstitutional, because it does not make
provision for marriage of persons of the same sex.

There has therefore been a proposal that legislation should be
amended to make provision for this.

The purpose of this paper is to suggest that the Marriage Act be
repealed altogether, and that marriage should cease to be the
concern of the State, but should for the most part be dealt with
by civil society.

One of the main concerns that has led to calls for changes to the
present system is the need for clarity about legal status and
inheritance. In this paper I suggest that these can be dealt with
by new legislation for the registration of social and domestic
partnerships of various kinds.

2 Social & domestic partnerships

Marriage is one of several kinds of social and domestic part-
nerships that can be found in society, and existed in most
societies long before there was any state regulation of it. In
some societies it has religious dimensions, but different
religions have different views about it.

2.1 Different views of marriage

For some, marriage is a union of two people of different sexes.
For others, it can involve more than two people. In both these,
however, one of the purposes of marriage has been the procreation
of children, and this has given marriage a legal and social
dimension with regard to such matters as inheritance. One of the
legal consequences of marriage has been that the parties to a
marriage become "next of kin" to each other. This is important
for such things as intestate succession, and rights of visiting
in hospital when one of the parties is seriously ill, etc.

Because South Africa is a multicultural country, there are many
different views of what constitutes marriage, and any attempt by
the State to regulate marriage too closely will cause dis-
satisfaction among some groups.

2.2 Other social and domestic partnerships

There have been various other kinds of social and domestic part-
nerships that have not enjoyed the legal recognition of marriage.

If the Marriage Act were to be repealed, there should be new
legislation provide for marriage and other social and domestic
partnerships to have similar legal consequences to those that
marriage has had in the past.

Such partnerships include (but are not necessarily limited to)
the following:

* Monogamous marriage

* Polygamous marriage

* Unions of two people of the same sex

* Unions of two or more people of the same or different

* Long-term communities, such as monasteries

* Unmarried siblings who live together

New legislation could provide for the registration of such part-
nerships and spell out some of the legal consequences, which
could, in some cases, be varied as the legal consequences of
marriage can now be varied by ante-nuptial contract.

Registration should be a secular, neutral process, like the
registration of births and deaths. There are no religious birth
or death registration officers. Social and domestic partnerships
should be registered in the same way, and their dissolution, if
it occurs, could be registered in the same way. Provision could
be made, in cases where it might be desirable, for the Master of
the High Court to supervise the winding up of estates of
dissolved partnerships, as is now done for the estates of
deceased, insolvent or mentally incapacitated persons.

Religious or cultural ceremonies could be held to inaugurate any
of these partnerships, some of them, or none of them, Such
ceremonies should not be a prerequisite or a necessary con-
sequence of registration, though evidence that people had par-
ticipated in such a ceremony could, where appropriate, be taken
as evidence that they intended to register their partnership.

Religious and cultural groups should not be obliged to perform
ceremonies in connection with any or all of these partnerships,
nor to approve of all such partnerships, and should be entitled
to urge their members not to participate in some forms of
partnership that they regard as undesirable.

3 Conclusion and recommendations

I therefore suggest that the State should withdraw from the
marriage business altogether, and leave it up to different groups
in civil society, whether religious or cultural, to determine
what marriage is for their members, and what kinds of part-
nerships are acceptable or unacceptable for their members. There
should be no religious "marriage officers" in religious groups
who perform marriage ceremonies on behalf of the state.

The Marriage Act should be repealed, and replaced by legislation
providing for the registration of various kinds of social and
domestic partnerships, and for the legal consequences of such




This post has been linked to the Synchroblog for October 2010: Same-sex marriage synchroblog | Khanya. Click on the link to see the other posts in the synchroblog.


D. I. Dalrymple said...

Father Deacon,

In typical American fashion, I’m not familiar with your situation in South Africa and hadn’t heard about your Constitutional Court’s decision in this matter. Wow.

I know, of course, that the same debate is playing out in many countries of western European heritage today. The issue here in the US has been simmering for several years, as you may know. I’ve heard your basic idea argued here by liberals and conservatives alike, and I largely agree with it.

On the one hand, as nations and cultures are built on families, I think it bodes ill for any society to refuse the exclusivity of traditional marriage. But the reality is that we live in increasingly ‘secular’ and pluralist societies. If the alternative is for the state to compel religious bodies to recognize as a sacrament that which they consider unholy, and to serve the vox populi by the performance of what it consider an illicit act, then we have no choice but to promote such solutions as you suggest here.

The questions, then, are:

1. Does the state or the majority within the state hold to a specific religious form which disallows an expansion of the legal definition of marriage?

2. Does the state recognize the value of the traditional family and the place of marriage in the foundation, stability, and continuance of the society?

3. Does the state have the power to compel religious groups to perform state functions?

…There are probably other questions, too. But you get the idea, if the answer to either or both of the first two is No, and if the answer to the third is Yes, then you’re in trouble and it’s time to sever the cooperation of Church and state in marriage, so as to preserve the prerogatives of the Church.

Perhaps South Africa if further down this road than the US is at present time? (The Constitutional Court’s decision would seem to suggest so.) I wouldn’t be surprised if we in the US find ourselves in the same position within another ten or twenty years. But not yet, I think.

Steve Hayes said...

Thanks very much for your comment.

I think this issue is simply one aspect of the pluralism you mentioned in your blog.

Someone who did comment suggested that my proposal seemed to be going along with the idea that "religion is a purely private affair" and that even in a country where 85% of the population claim to be Christian, the churches should have no voice in the public square.

But I did not see it like that. It is not a matter of "church and state" so much as one of "state and civil society". There are some things, and I believe marriage is one of them, where it is civil society, rather than the state, that needs to define them. And in a plural society, one may have several different definitions. Christianity came into being in a plural society as a minority and it shouldn't be too difficult to live in one now. And, as one Bible commentator put it in commenting on Revelation 13, "What Satan calls from the abyss is not government, but that abuse of government, the omnicompetent state."

When Christians try to get the State to impose their view of something like marriage on the whole of society, they are actually copping out, and accepting that the state has the right to define all things, and handing over to Caesar what belongs to God.

Anonymous said...


I found this post in a roundabout way from someone who linked to one of your other posts, and I just want to say THANK YOU for saying this! People get so bogged down in whether homosexuality is right or wrong whenever they argue on the topic of gay marriage here (in the US) that everyone seems to miss that it shouldn't be the government's business in the first place! I've been trying to say that for a long time, but no one will listen to me because I have no authority in the matter....

Xristoforos McAvoy said...

The church and state should never have been separated. Your view of ending state involvement in marriage is absolute heresy. We must all come to accept that the classical republics, monarchies and empires where the king, duke, emperor/caeser was the partner with archbishop/pope/patriarch was the best system for us who inherit this christian civilization which has almost been destroyed by the western philsophical enlightenment beginning in the scholastic 13th c and culiminated in the revolutionary secular nation state 19th century.

Yewtree said...

I am disturbed that the above commenter feels the need to cry "heresy", which is a response that immediately closes down discussion. Surely it's the business of a council of the entire church to determine what is heresy, and I note that the Orthodox Church has not held too many of those, preferring the autocephalous churches model. (I speak as an outside observer who became interested in Orthodoxy briefly.)

I am inclined to think that separating religious marriage from civil marriage is a good idea - mainly so that those churches who want to perform same-sex weddings may do so.


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