While I don’t live in the Republic of Cambridge, I do spend enough time there that the ruling concerning gay marriage has a personal impact on my friends.
I posted a while ago about how I think it’s a bad idea for the state to legislate morality. There may be arguments for legislating against marriage for same-sex couples, but morality is surprisingly not in the state’s interest. Haroon, from over at Avari-nameh, challenged my basic assumption, and I promised him a good fight, but let it go. Now he’s posting on the same subject, using the same source no less!, so I thought it would be a good opportunity to throw in my two cents again.
This post will actually focus on two separate, but related issues. One is the notion of marriage and sexuality in Islam. The other is about the moral obligation of the state.
Two books I recommend for background on homosexuality in Islam are Islamic Homosexualities and Sexuality in Islam. I’ve also mentioned Al-Fatiha Foundation as well. While the specifics of the interpretations of various groups are somewhat inaccurate, the general ideas are there. I haven’t found a really good, well-researched book on marriage in Islam; suggestions would be much appreciated.
I think there has already been some discussion about the difference between marriage and civil unions, the latter category is what is used in Vermont for legally recognized same-sex relationships. Marriage, of course, has very strong religious connotations, and for some religious traditions is sacramental. In the US, a marriage has to be registered in the civil bureaucracy in order to be considered legal. For this reason, many religious authorities who perform marriages act as agents of the state and simultaneously register the legal relationship. Since the state has different interests in its relationships with its constituents than the church, it is inevitable that there would eventually be a conflict. In my mind, because of the associations with the term “marriage,” the state should not be in the business of marrying people; only the church should marry, the state should recognize unions. I would argue that there should be two separate events, the marriage and the recognition of the legal union. The church can then marry whom it chooses to, much like selection happens in private faith-based organizations. The state recognizes a legal relationship for legal purposes. Since my community does not have an individual who is recognized to perform marriages for the state, I actually have two anniversary dates, a religious and a legal. I know quite a few people who have a similar situation. In addition, at least for Muslims, marriage is strictly a contract; there is no religious quality to it. However, I would argue that the two unions must be separated. Part of the traditional contract between Muslims stipulates support in the event of divorce. If that ceremony is also the state’s ceremony, does the state recognize the contract as a legal document? Especially since most agreements would be considered insufficient when compared to civil law? In the absence of recognition of the various Islamic schools of law, the state can always enforce civil law if there are two ceremonies.
Now, the related question is what is the moral function of the state; more specifically are laws moral. Haroon’s first comment to me was on the Bill of Rights. Any law in a liberal democracy is a reflection of the morés, morals and ethics of the society which produced it. That law, like religious interpretation, can be limiting or enabling (I know I keep changing the terms, but I’m still hunting for a good pair). The US Constitution is an enabling document; it limits the state, and empowers the individual. While granting specific rights to the person, it also says that those rights are listed in totality, and that the individual has more rights. The Bill of Rights gives agency to the individual. You can argue that this text is a moral document, and I do believe it is, but it’s not a moralizing document. The only moralizing, and proscriptive, element of the Constitution was the amendment on prohibition, an amendment which was repealed. [Don’t mention that pesky amendment about income tax. Whether we have a right to money is a different argument.] The document takes Rousseau‘s theory of human nature and applies it to the individual, and Hobbes‘ view of humanity is applied to the government. In such a situation, the state cannot be interested in moralizing, but is inherently interested in the greater good, which often reflects a morality. One of the measures the Supreme Court uses in making its decisions is not on morality, but on public opinion (Dred Scott anyone?), which is supposed to represent American morés.
Our interaction with the state, following Locke‘s model, is not based on mutual moral obligation, but on legal responsibilities. The moralizing state invites theocracy, an idea that used to be antithetical to the American world-view. I do not believe that the state is either immoral or amoral, but neither is it an active moral actor.
Islamicate on gay marriage
Islamicate writes interestingly about gay marriage: Separate marriage from legal unions, written within the context of Hobbes vs. Rosseau….
In Latin America, the civil and religious ceremonies are commonly separate.
Usually the civil marriage happens a few days before the “ecclesiastic” one, at a city hall, civil registry office or the like, presided over by a functionary. Typically, a few friends and relatives might attend as witnesses, usually with everyone in the formal street attire they might wear to church on a normal Sunday.
Often there’s a quiet celebratory lunch or dinner later in the day, with a few more invitees and the bride and groom going their separate ways afterward.
The religious ceremony is the one common in the Christian west, with the bride dressed as elaborately in white as she can afford, perhaps with bridesmaids and so on, there is usually a reception afterward with all the stops pulled out, and at some point the bride and groom leave together to start their married life.
“One of the measures the Supreme Court uses in making its decisions is not on morality, but on public opinion (Dred Scott anyone?), which is supposed to represent American morés.”
I think you need to read a few Supreme Court opinions before saying that.
There’s plenty of moralizing laws, and they’re not just there “for the greater good.” Zoning laws for adult establishments, for example. Or the fact that you can’t go walking around in public with an open container of alcohol. Or “dry county” laws. Or laws outlawing gambling.
As for unions, where does it end (or where does it begin). Why not three-person unions? Or four? Because if that’s what I want, who’s the state to tell me I can’t.
Finally, this following statement is a HUGE stretch and, with all due respect, intellectually dishonest: “In addition, at least for Muslims, marriage is strictly a contract; there is no religious quality to it.”
johne, thanks for the information. You’ll have to forgive my ignorance, but do you know how that separation developed? It strikes me that Catholicism plays a much stronger role in political debates in Latin American countries, than Protestant thought does here in the US.
ris:
Couple of points on the law. I have been corrected privately that Dred Scott was not overturned in the courts, but by Constitutional amendment, so that was a poor example. However, you do not give court cases I should look at to prove your point. If you have been reading the Court’s rulings on the death penalty, particularly with regards to the mentally disabled and juveniles, you will in fact see that part of the debate has focused on acceptability in modern society. Some examples include: (I’ve opted for CNN over Find Law for ease of access.)
source: http://www.cnn.com/2002/LAW/06/20/scotus.executions/index.html
source:http://www.cnn.com/2003/LAW/01/29/scotus.deathpenalty/index.html
You then move into a discussion of laws. I didn’t say that the state doesn’t pass moralizing laws, I argue that it shouldn’t. With the exception of blue laws, almost all your examples can be argued as serving the greater good, including the protection of minors.
As to the point of unions, I’m not actually advocating any type of union in this piece, I’m trying to explain why I think mixing religion and the state is a bad idea in this scenario, and more broadly as well. I think once you separate the two interests in life-time relationships, you actually can get a much clearer picture as to the types of legal relationships the state should and should not recognize.
Lastly, I appreciate you think I’m being intellectually dishonest, but it would be helpful to me if you could point to some practice, text or example that would show me how. A Muslim marriage is literally just a contract. While certain Muslim communities of interpretation may have settled on religious practices, it is not universal across interpretive divides, or cultural divides. Marriage rituals for Muslims are more Islamicate than Islamic; one need only look at the variety of rituals in Central Asia, South Asia or Southeast Asia. Birth and death rituals are far more uniform because of the theological import accorded them, and the fact the Sunnah of the Prophet (PBUH) gives only one example of each. The Prophet (PBUH) was married in a multitude of ways. I also think you’d be hard-pressed to find a Muslim who would argue that marriage is sacramental.
this is from bowers v. hardwick, the 1986 case over a sodomy law:
“Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.”
(though the law changed with that recent case in texas whose name i cannot remember, it wasn’t over these grounds, it was over fundamental rights)
(also, you can get the text at findlaw.com)
as for whether the state should pass moralizing laws, i guess we’ll agree to disagree, because it’s a huge topic and this probably isn’t the place for it. for now, i’d point to that language from the supreme court above, and also say that for some of us, at least, you can’t separate “the greater good” from morality.
concerning what i said on unions, my point was, should the state recognize every permutation of unions? two person unions, three, four, etc. and if you say no, then what are you using to draw the line?
on the muslim marriage contract, perhaps we’re talking about two different things. if you’re talking about how one actually gets married, then yeah, you sign a contract. i was talking about marriage “as institution,” or along those lines. i also meant that you can’t make a jump from the fact that muslims get married by signing a contract to the assumption that it should be fine for us to separate the religious/legal thing and legally recognize unions that we don’t agree with religiously. perhaps you weren’t saying that, in which case i was reading too much into it.
I don’t know the history of separate civil and religious marriage ceremonies in Latin America. Given the contractual nature of marriage in medieval Europe (_pace_ ris), Spain’s forced-draft development of a beauracracy to govern her maritime empire, and the fact that the Council of Trent felt that it was necessary to promote the idea of including a priest in marriage ceremonies as late as the 1560’s, it’s conceivable that the practice is as old as the society.