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Getting Government Out of Marriage, and Vice Versa

by Benjamin Braude on Dec 13, 2003

Benjamin Braude

According to the opponents of gay marriage, the Nov. 18 Massachusetts Supreme Judicial Court decision legalizing same-sex unions threatens hallowed traditions, firmly established in Judaism and Christianity over thousands of years. However, what opponents take as hoary, biblically rooted practice is more hollow than hallowed. Those claiming to defend traditional marriage forget what those traditions were.

One revered form of marriage — espoused in the Bible — is the polygamy of the patriarchs, Abraham, Isaac and Jacob. In the nineteenth century America’s own Mormons practiced it, and even today some of their successors do as well. Among Abrahamic religions, monogamy is a relatively recent and inconsistent exception to this rule. To this day not only Islam but even Judaism have yet to abandon polygamy.

Jews too could be polygamists. The current Jewish ban against it is traditionally based on the words of a medieval German rabbi and remains restricted to Jews resident in Christendom. No such ordinance exists for the few Jews still living in the lands of Islam. In theory, tomorrow an eminent rabbinic authority in New York could overturn that millennium-old ruling so that all Jews could go back to biblical ways.

The Ten Commandments are mute about gay marriage. Males in a homosexual union are at least less likely than straight husbands to “covet thy neighbors’ wife,” prohibited by the Tenth Commandment. To oppose the Massachusetts court ruling, the Bishop of Boston has twisted the Sixth Commandment — against adultery — into a ban on same-sex intercourse.

To do so he must deny its plain meaning. The same kind of denial is at work with the Second Commandment, “Thou shalt not make . . . a graven image Nor any manner of likeness . . . Thou shalt not bow down to them” – which is violated with practically every genuflection towards the crucifix.

The neglect or selective reinterpretation of tradition in order to accept and even embrace practices that contradict the letter of the received law is essential for the survival of every moral system. Today millions of pious believers routinely violate the biblical prohibition against heterosexual intercourse with a menstruating woman. The biblical prohibition against a man’s lying with a man as with a woman could just as easily benefit from such tolerance.

For better or for worse, traditional biblical morality is not contemporary morality. Matters of moral indifference today aroused deep concern back then. Acts and institutions that we have come to regard with horror — stoning to death for the sin of filial disobedience, separating the slave from his wife as a condition for his freedom and, in general, the elaborate support the Bible offered slavery – were essential to virtue in the world of the Bible. Biblical tradition — more complex and disturbing than its advocates recognize — cannot offer an absolute and literal moral guide, as the Massachusetts court has implicitly recognized.

For millennia, the state kept out of the nuptial bed. On those occasions when couples decided to seek recognition for their union, it was from the clergy, not the government’s fee collector. In the 18th century, state involvement in regulating and recording marriage started to take hold in Christendom. One solution to the current conflict over gay marriage is for the state and marriage to go back to their pre-18th century separate ways. Although not the Massachusetts ruling, that might ultimately lower current passions. It would completely remove the state from the emotionally explosive issue of marriage.

The state should sanction civil unions and disunions for its own social, fiscal and political reasons, oblivious to the many complex and varied marriage customs of the different religions of its citizens. Marriage should be the exclusive domain of the private, the personal and the spiritual, a logical realization of the separation of church and state. Civil union alone — without or with religious marriage — should yield the civil benefits that the state bestows on such partnerships.

That has long been the norm in France and Mexico. In 1999 France went further, allowing civil unions to include other attachments, not only gay unions, but also those between elderly sisters, and celibate priests and their housekeepers, for example.

Marriage should involve the state no more than other sacramental rites of passage, e.g., baptisms, circumcisions, first communions, bar mitzvahs or funerals. The clergy should not cater to the whims of a government bureaucracy or a judge. The state should not arbitrate among competing, contradictory and ever-changing views of the sacred and the profane.