Now, as a distinguished Catholic friend of mine once said, the shit has hit the fan. The Supreme Court, in Obergefell v. Hodges, has declared that all states must recognize marriages between persons of the same sex. There will, no doubt, be many Catholics and other Christians, and others of good will and good sense, who will strive to overturn it. This will likely be as quixotic a notion as overturning Roe v. Wade has been. In the absence of any likelihood that this regime will end in our lifetimes, what can we do about marriage? I think there are things that can be done in both the civil sphere and in the practice of the Church.
In the civil sphere, we should push to abolish civil marriage in the form it now has. The legislature of Alabama is moving in that direction with a proposal to abolish marriage licenses. Marriage licenses are a relatively recent innovation in this country, having been introduced to prevent marriages between close relatives, to control venereal disease, and, most importantly in many places, to prevent marriages between men and women who were defined as belonging to different races. We don’t need them and we won’t miss them.
What Alabama wants to do is to substitute marriage registration for a marriage license. Persons can go to a state office and formally declare that they are married, without any question as to how this came about—or not, if they choose to live as a couple without any official notice.
I think this would be a good option for everyone to adopt. First the legislature would create a form of contract that would have all the legal implications of marriage. This form of contract could be modified with respect to common property or other features by the parties, or they could accept a default set of conditions established by statute. This contract could be made between any two persons, but for any individual, only with one person at a time. It would say nothing about common domicile, sexual relations, or any other matter. It could specify what will happen when the contract is dissolved, and what the implications are for the estates of each party in case of intestacy. The contract would be registered with a local court, and its dissolution, and the fulfillment of the terms of the contract, would likewise be registered with the court. You could call these acts “marriage” and “divorce” or anything else you wanted, and you could attach any sort of immunities to the participants in such a contract with respect to taxes, court testimony, transfers of property, probate, or anything else.
The big problem when it comes to marriage and divorce today, of course, is the custody of children. However, it is clear to any observer that marriage and the bearing and rearing of children are having less and less to do with one another. We should make provisions for children that are not tied to the contractual relations between the parents—as is true in many cases already.
I propose that all parental rights and duties should begin with the biological parents of the child. All birth certificates should bear the names of both biological (that is genetic, not uterine in cases of surrogacy) parents of the child. Even the names of sperm donors, in cases of artificial insemination, should be listed, although they may be sealed. These two parents (or the mother if the father is truly unknown) should be presumed to have parental rights (and duties—I will simply say “rights” to save words). Each of them can surrender, by legal act, their parental rights, on condition that at least one person will accept these rights. Both parents, in this sense, should have obligations toward the support of the children that are enforceable at law, but these can be adjusted by mutual agreement with the approval of a court, or, in the worst case, terminated by a court in the event of criminal behavior. This would be similar to the disposition of children in cases of divorce, but would not necessarily be tied to the civil partnership described above. It would hold in cases where the biological parents have no partnership, or even in cases where one or both are in partnerships with other persons.
Someone may protest that this will result in children being raised in unhealthy family situations. Alas, this is true; but these unhealthy situations already exist and are multiplying anyway. We can’t prevent the existence of “families” with two parents of the same sex, because now, even where same-sex marriage has not existed, adoption by same-sex couples is legal. Now all limits are gone, and that is unlikely to change.
In the sphere of the Church, the time has come to take some measures that are long overdue. What the civil society means by marriage and what the Church means by marriage have been radically different for a long time; Obergefell just makes it obvious. The Church needs to recognize this by her treatment of marriage.
I would suggest that the Church, first of all, cease solemnizing marriages and signing marriage licenses in jurisdictions that have marriage licenses. This would preempt the coming campaign to force Catholic clergy to solemnize same-sex marriages. Beyond that, I would suggest that the Church should not recognize any marriages that have been entered into purely as a civil contract or celebrated in a church or religious body where marriage is not recognized as a sacrament. This would mean that persons who have passed through a sequence of sacramentally meaningless marriages would be free of these entanglements if they come into the Church. It is true that the sacrament of Matrimony is made by the couple themselves, not by the minister who witnesses it, but given the state of marriage in our society, it is reasonable to assume that the conditions for entering into a valid marriage have usually not been met outside the Catholic or Orthodox Churches. The pastoral issue of how to deal with a couple who are living as husband and wife and both seek to enter the Church as such would have to be settled, possibly case by case.
In the case of Catholic marriages, we need to strengthen the catechesis of marriage in the Church, and provide special preparation for couples who have been raised in a society that does not recognize marriage as Catholics do, so that they realize that the requirements of fidelity, permanence, and openness to life must be fully accepted and lived out. We must also be very sure of the capability and freedom of consent. I hope that the current considerations in the highest levels of the Church will bear fruit that will help that.
Catholics, and other Christians, are and always have been called to be counter-cultural. We do not belong to this world. Sometimes it has not been very obvious. Now it is and those who do not rise to the occasion will be judged severely before the throne of God.