Get the Government out of Marriage?

by: tim dunkin | published: 06 22, 2014

As so-called same sex “marriage” continues to make its judicially-imposed march across America, it has become increasingly popular among some on the Right to call for “getting the government out of marriage.” This sentiment especially finds support among the libertarian wing, who uses the disturbances to our culture and sense of right and wrong to put forward the notion that if we’re for getting the government out of most everything else, then why not marriage as well? If government isn’t involved in the process of approving or disapproving marriages, then we can’t say that the government is actually “sanctioning” gay unions, an argument intended to mollify those on the “Religious Right” and traditional conservatives in general.

While this argument may superficially carry some appeal with its “get government out of” sentiment (which is typically a good go-to position to take on just about anything), in this particular case, I do not find it convincing.  Indeed, I believe that government has a legitimate interest in sanctioning marriages, based on Scripture and natural law, and hence, the outflowing of these foundations into our constitutional system. 

Our governing system, starting with the Constitution and which should (but often does not) filter down to everything below, is based upon the natural rights philosophy of our Founders. This natural rights philosophy, in turn, was based upon the concept of natural law – a universal set of moral and ethical principles that are accessible by human reason, and which were given by God. In the Founders’ worldview, this natural law was recognized equally by both Christian revelation in the Old and New Testaments, as well as by the more enlightened of the ancient writers, such as Seneca, Cicero, and others. Natural law, in short, was what was in accord with the eternal moral standards and principles of God Himself, as He established them for the universe He had created, and further, for the societies of men which were formed by human beings, created as rational beings in His image, capable of accessing this natural law through reason, and encouraged to do so by both their inner conscience and by the external leading of revealed Scripture. As Cicero said,

“The natural law...is indeed a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. it requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind.” (Cicero, De Re Publica, 1.3)

Cicero further stated the sentiment, largely in his Philippics and in his De Officiis, that laws which do not conform to the natural law really have no force or standing as laws at all, and to enforce them is, in effect, tyranny rather than right rule of law. George Mason echoed this sentiment,

“Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God: A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.” (George Mason, from his argument in Robin v. Hardaway, 2 Va [1772])

James Madison likewise argued for the primacy of God’s law, as natural law, over that of civil societies rules which find themselves in contradiction to it when he was arguing in favor of freedom of religion over and against the prerogative of government to dictate religious standards and practices to the people,

“...because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homeage, and such only, as he believes to be acceptable to Him. His duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.” (James Madison, Memorial and Remonstrance against Religious Assessments [1785])

Another primary source that was highly respected by America’s Founders was the English jurist William Blackstone, whose Commentaries were practically required reading for the members of colonial America’s literati. Blackstone also placed the foundations of law rightly so called on the recognition of natural law as formulated by the Creator. At one point, Blackstone wrote (and which must surely drive modern day libertarians to distraction),

“This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature...” (William Blackstone, Commentaries on the Laws of England, ppg. 40)

Hence, for Blackstone, as well as for the Founders who followed him and who crafted our liberty-centered governing system, even the argument that “I’m not hurting anyone else” was not sufficient to overcome the necessity of being in line with the natural law. 

So what does this have to do with the issue of marriage? Quite a bit, actually. Marriage was established and ordained by God as a primal relationship between one man and one woman, long before there was an government or civil society in existence. In Genesis 2:22-24, the Scripture tells us,

“And the rib, which the LORD God had taken from man, made he a woman, and brought her unto the man. And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.”

This primacy was reiterated by the Lord Jesus Christ in the New Testament (Matthew 19:4-6, Mark 10:6-9), whose remarks upon marriage solely and completely assume the legitimacy only of monogamous, lifelong marriage between one man and one woman (which completely refutes the “argument” by some gay rights activists that “Jesus never condemned gay marriage” - He certainly did by simply assuming that it had no legitimacy of any sort whatsoever). 

This primal character, therefore, completely removes the institution of marriage from being the purely civil creation of government that many who argue for same-sex “marriage” try to claim it to be. Instead, marriage – existing only as a monogamous and heterosexual relationship – is a product of God’s natural law, and cannot legitimately be changed by man’s laws. Simply put, all of the various perversions of marriage that sinful man has introduced through the millennia – polygamy, serial divorce and remarriage, “shacking up,” same-sex “marriage” – have no relevancy when discussing the position of marriage under natural law. They are unnatural perversions of it – their existence is not an argument for their legitimacy. No matter how much his governments may try to do so, man cannot rightly alter what marriage fundamentally is, and expect that to have any force upon those who accept and respect the natural law foundations of American liberty. Simply put, “gay marriage” is an assault on genuine liberty, not an affirmation of it. As I’ve written about before, there is simply no basis for a claim to a “natural right” to gay marriage.

But does all this mean that government should have a role in marriage? I believe it does, since we also find in Scripture that God ordained and established government with the ideal (however often unrealized) goal of maintaining justice and peace among men,

“Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing. Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.” (Romans 13:1-7)

Unlike some Christian commentators, I do not believe these verses are sanctioning any and all governments, no matter how wicked, hateful, oppressive, and unjust. Rather, they are saying that the institution of government, as a principle, has been ordained by God – but it further explains then that the intended purposes of this government is to punish the wicked and give praise to the good, and therefore for these reasons we should not resist just government and should give it our allegiance. Government’s purpose is to maintain the soundness of civil society so that men may live in peace and security with each other,

“I exhort therefore, that, first of all, supplications, prayers, intercessions, and giving of thanks, be made for all men; For kings, and for all that are in authority; that we may lead a quiet and peaceable life in all godliness and honesty.” (I Timothy 2:1-2)

Marriage is a fundamental bedrock of human society. It is the means by which children are to be brought into the world, trained by their parents, and prepared to be just and fit members of larger society. That is definitely a legitimate interest of the government, and justifies the role of government in preserving, protecting, and promoting “traditional” (really, “natural” would be a better term) marriage, and likewise discouraging things that would tend to undermine and overthrow this institution. Doing so is a just, right, and proper role of government (even if not, under the framework of our Constitution, the federal government).

So no, I don’t think we should “get the government out of marriage.” Indeed, while the reasoning put forward for that sentiment is intended to appeal to small-government types, I believe the underlying purpose on the part of social libertarians is simply to get those of us on the Right to go along with the legitimization of unnatural same-sex “marriage.” They know that if we “get government out of marriage,” then it is a de facto legalization and normalization of gay marriage. Even if left solely to the churches and other religious assemblies of the land, they know that the reality on the ground is that there will always be liberal, apostate “churches” that will give their blessing to the unnatural and unjust institution of same-sex “marriage.”

Nevertheless, I’d like to engage in a little thought experiment, throwing a bone to our social libertarian friends. If we were to take the route of “getting the government out of marriage,” then by all means, let’s get the government out of marriage. Completely. Totally divorce the government at any and all levels from having anything to do with marital law or anything even related to it tangentially. 

So how would this play out? Well, first of all, it would obviously mean that the government can no longer legitimize same-sex “marriage” through the force of judicial edicts and lawsuits. But further than that, it also would mean that the government cannot force individuals or businesses to recognize so-called same-sex “marriages” performed by willing religious bodies. Government could not force business owners to recognize gay marriages of their employees. These businesses would be under no legal obligation whatsoever to grant spousal benefits like insurance and so forth to the “spouses” of gay employees. Government would have no basis for requiring any sort of “equal opportunity” or “equal protection” sanctions against businesses that don’t grant gays what they want.

Further, it would mean that any and all laws requiring Christian business owners, such as flower shop owners and bakers, to service gay “weddings” (such as we currently are seeing) would go out the window. No “public access” arguments could then be used to force these business owners to act against their consciences, as we are seeing take place in Oregon, New Mexico, and other states. Further, no church or other religious body could be forced to officiate a gay “marriage,” as is happening in several European nations. 

In short, if someone wants to “get government out of marriage,” then go all the way with it. Nobody who doesn’t want to recognize them or grant privileges to them or perform services for them would be required to do so, unlike the current regimen that we see taking place. 

I have to admit – the above actually seems to be a tempting argument for “getting the government out of marriage,” despite the natural law arguments I made above. After all, if we really did this (though we all know that the gay “rights” bullies and other members of the GayKK wouldn’t go for it for a second), it would end a lot of the assaults on our First Amendmentl liberties – free speech, freedom of religion, freedom of association – that have been accompanying the rise of gay marriage. However, the better way would simply be to affirm natural marriage, reject the privilege of judges to legislate on this issue from the bench in contradiction to the 9^th and 10^th amendments (i.e. the judicial decisions for gay marriage are themselves unconstitutional, and should be considered by the states as automatically vacated), and refuse to allow the gay mafia to force its will off onto the nation at large while violating our constitutional liberties.      

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