Legal Scholars Beginning to Question Civil Marriage

by W.F. Price on November 8, 2010

Civil marriage is essentially a Western innovation that arose out of European Christian society at the beginning of the modern era. In the original American colonies, it was the Puritans who first instituted the practice, beating even the British to the punch. However, it was John Calvin who, in the 16th century, first decreed that all marriages must be registered by the state.

It seems that the initial drive for civil marriage had a great deal to do with religious competition, as incipient nations in the early modern period were largely divided along religious lines (Protestant and Catholic), and forcing state approval of marriage bolstered the influence of one sect or the other. In time, it had the opposite effect, and as nationalism eclipsed religion in political influence civil marriage came to take precedence over sacramental marriage.

Despite the diminishing role of the church in marriage, which was never clearly based on scripture in any event, Christians found ways to cooperate with the state in promoting civil marriage to the profit of both. Priests and ministers continued to perform the rites, and took on certain duties such as signing marriage certificates. Importantly, churches also contributed to giving civil marriage an aura of validity that surely would have been eliminated by now without some spiritual imprimatur. Perhaps most cynically, the Catholic Church is in the annulment business, which forces Catholics to get a second divorce. Annulments are rubber-stamped, but they still cost around $500 on average — it’s little more than a tax.

Although the state is the most important arbiter of what constitutes marriage today, religions are not without some influence, which is why gay marriage and polygamy are such controversial issues. This is necessarily the case when there exists a symbiotic relationship between institutions, and the institutions overwhelmingly involved in the marriage business today (in the West) are Christian churches.

So, perhaps it is no surprise that one of the more serious, learned voices emerging in opposition to civil marriage is not Christian, or even of Christian background, but rather Edward Zelinsky, a Jewish legal scholar at the Benjamin N. Cardozo School of Law of Yeshiva University.

In a 2008 article published in the Oxford University Press’s blog, Dr. Zelinsky argues that divisions in state courts concerning whether or not the state has the right to regulate relationships amongst consenting adults suggest that deregulation of marriage is the most straightforward approach to solving this problem:

By a 4-3 vote, California’s highest court has ruled that California’s constitution requires the Golden State to legally recognize the unions of same-sex couples as marriages. Supporters of the court’s decision hail it as a victory for equality. Opponents criticize the ruling as unwarranted judicial activism rejecting traditional morality.

I suggest a third perspective: The California court’s divided decision indicates the desirability of abolishing civil marriage. The state should not define, regulate or characterize relationships among consenting adults. By abolishing civil marriage, the law would deregulate marriage. Such deregulation would strengthen marriage as a social, cultural and religious institution while eliminating the divisiveness inherent in one definition of marriage being imposed politically upon a diverse polity.

Although Zelinsky is using the debate over gay marriage to make his point, the other, more important implications are clear:

A world without civil marriage would still be a world with marriage. Indeed, marriage would thrive in a deregulated world. Released from a single, state-imposed definition of marriage, religious, cultural and other groups would promote their respective versions of marriage. Once the law no longer monopolizes the definition of marriage, individuals would contract for their own versions of the institution.


Upon the dissolution of familial relationships, the courts would be required to interpret and enforce the contracts defining those relationships. In the absence of such contracts, the courts would be required to make decisions about income, assets and minor children, just as they do today.

I doubt he would ever admit it on paper, but I am almost certain this Zelinsky fellow holds some views in common with us here at The Spearhead. In fact, I can’t find one single point in his article with which I take issue.

If there is anything about Zelinsky’s idea that is somewhat unsettling, it is that it would be so effective at reestablishing marriage as a cultural norm if put into practice. As I grow more and more accustomed to bachelorhood, I am finding it to be fairly agreeable in many ways, but I suppose men of my generation will never be expected to have anything resembling a normal marriage anyway, so perhaps I shouldn’t worry.

Aside from Zelinsky, I was only able to identify one other legal scholar arguing for the elimination of civil marriage, a Catholic law professor named Daniel A. Crane. Crane’s essay (linked below) argues from a more religious perspective than Zelinsky, comparing and contrasting Catholic, Protestant and Jewish marriage traditions, and suggests that all support privatization of marriage. Those who have a religious interest in the matter would do well to take a look at his paper, found here:


I’m sure there are more out there, and it is encouraging to see that this movement is growing in academia. For those of us here with our boots on the ground it’s time to start giving some serious support to this idea.

Most importantly, conservative Christians who are trying to solidify state control over marriage in order to prevent gay marriage are going to have to do a quick about face and start arguing for the abolition of civil marriage. If they feel uncomfortable with that, they should simply imagine what a liberal regime armed with greater power over “marriage” will do.

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