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.