May 19, 1996
The outcome is of more than parochial Hawaiian interest because Article IV of the U.S. Constitution mandates that "[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Thus, a homosexual marriage legally contracted in Hawaii would have to be recognized (given full faith and credit) by other states. The result, it is apparently feared, would be de facto legalization of homosexual marriage in all states, as homosexual couples stampeded to Hawaii and entered into marriages which their states of residence then would be forced to recognize.
In the face of this threat the U.S. Congress is considering legislation, introduced by Rep. Barr of Georgia, which would exempt states from their obligation to recognize homosexual marriages contracted in other states. A number of state legislatures are adopting resolutions calling on Congress to enact such an exemption from the full-faith-and-credit requirement Other states are enacting preemptive legislation prohibiting recognition of homosexual marriage, in the hope that such a prohibition would supersede the full-faith-and-credit requirement of the Constitution.
Neither federal nor state action intended to delegitimize homosexual marriage appears likely to pass constitutional muster. Strict constructionists on the Supreme Court will have grave difficulty with the clear language of Article IV, while judicial activists will be sympathetic to homosexual marriage.
Unfortunately, while feverishly pursuing fatally-flawed and ultimately futile approaches, legislators and other participants in the debate over homosexual marriage have failed to recognize a much simpler approach to the issue, and one on which both proponents and opponents might agree: Abolish marriage as a civil institution.
Prior to the Reformation marriage was not a civil institution and was not governed by civil laws. Rather, marriage fell within the domain of canon (religious) law. Marriage was converted from a religious to a civil institution only as the hegemony of canon law was eroded by religious pluralism and as encroachments of selfaggrandizing nation-states progressively extended the reach of civil authority into what had previously been the domain of religious authority. Marriage has remained a religious, not civil, institution only in a few "backwaters," distinguished primarily by the continued dominance of a single religious authority (generally the Roman Catholic Church).
Ireland is the best known of these backwaters. Jealously guarding its ecclesiastical authority, the Irish Roman Catholic Church governs the institution of marriage through canon law and has prevented the enactment of civil laws regulating either the consummation or dissolution of marriage. An Irish priest performs a marriage by the authority vested in him by the Church of Rome (as representative of God), not by the Irish state. Similarly, only the ecclesiastical courts, applying canon law, have the authority to dissolve (annul) a marriage sanctified by the Church.
The exclusively religious nature of marriage in Ireland does not mean that couples cannot enter into nonreligious unions comparable to civil marriage. However, these unions are governed not by the state but by private agreements, essentially contracts not unlike other private contractual agreements into which two people may voluntarily enter. Similarly, while civil divorce does not exist in Ireland, persons united in an unsanctified, contractual union can dissolve the contract (on terms either previously specified or subsequently negotiated). Of course, couples united in religious marriages cannot separate and then enter into subsequent church-sanctioned marriages without benefit of ecclesiastical annulment. However, although they will suffer severe ecclesiastical sanctions (excommunication and denial of the sacraments), no civil (or religious) authority prevents them from separating on mutually agreeable terms and then entering into subsequent contractual, nonreligious unions with others
Although the Constitution requires that a state recognize marriages sanctioned by other states, nothing requires that the recognition carry any weight. If a state abolishes marriage as a civil institution and removes references to marriage from its civil laws, then a marriage contracted in another state will be without meaning.
While abolition of marriage as a civil institution renders moot the issue of homosexual marriage, the strongest arguments for abolition concern the role of religion and the family in society. Religion can only be debased when it becomes an arm of the state. When the state defines and ordains marriage, religion looses its moral authority in this domain and becomes only a handmaiden of the secular state. Many religious bodies are currently struggling with the issue of the meaning of marriage and preconditions for the validity of marriage. In a pluralistic society, it is precisely the churches and other voluntary social institutions which should grapple with these difficult issues.
In fact, a strong argument can be made that the state action institutionalizing marriage, dictating to churches the terms of marriage and vesting in the clergy the authority to perform marriage represents a fundamental violation of the First Amendment's guarantee of freedom of religion and prohibition of the establishment of religion. The focus of concern here is not formalistic violation of a constitutional proscription but the substantive objection that, by arrogating to itself authority in the domain of marriage, the state has undermined the authority (and meaning) of those religious institutions which give meaning to marriage and the family.
Contemporary divorce rates clearly signal the declining meaning associated with what has become the purely civil institution of marriage. To return marriage from the secular to the sacred domain might well save it from the oblivion toward which secular marriage is rapidly tending.
Stephen P. Dresch, elected to the Michigan House of Representatives in 1990, was an unsuccessful 1992 Congressional primary candidate. A Ph.D. economist (Yale), he is former dean of Michigan Technological University's School of Business and Engineering Administration, research scholar at the International Institute for Applied Systems Analysis (Austria), chairman of the Institute for Demographic and Economic Studies, director of Yale University's program of Research in the Economics of Higher Education, and research associate of the National Bureau of Economic Research.