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A “hubbub” on Marriage with Tony Jones & Lisa Miller

September 19th, 2011 | 7 min read

By Andrew Walker

There is a “hubbub” afoot on whether clergy should perform weddings on behalf of the state.

The “hubbub” is fomented mostly by Tony Jones, who refuses to perform weddings on behalf of the state or have his own marriage recognized by the state, limiting instead such recognition to his church community and friends. He is motivated by a desire to separate “legal marriage” from “sacramental marriage,” and also by an incensed outrage at the majority of states who refuse to grant marital benefits to same-sex couples. Because same-sex marriages are not recognized by his state, he sees no need for his marriage to be either. Here are his objections, in brief:

  1. The sacred ceremony of marriage is far more important to us than the legal contract of marriage.
  2. We don’t really care if the government considers us married.  We’re far more interested in our marriage being solemnized by our family, friends, and community of faith.
  3. We don’t think that we should enjoy the 515 benefits of legal marriage when so many of our friends cannot.
  4. I do not think that clergy should act as agents of the government (as I’ve written before), and I did not want to ask my friend, Doug, to do so.
Religion journalist Lisa Miller responded to Jones in the Washington Post with an article of her own. Miller didn’t respond kindly to Jones’ position, saying:
On closer inspection, the Jones protest is muddled and retrograde. It’s bad for the financially vulnerable partner (historically the woman) and for children. Marriage law has come a long way since 16th century Europe, when men controlled all the property in a marriage and held the legal right to make all the decisions.
Only over the past century have state-issued marriage certificates become a kind of insurance policy for families against the vagaries of circumstance and individual desire, says the  marriage historian Stephanie Coontz. Today, the marriage license conveys benefits — Social Security, pension payouts, health insurance, inheritance — from one partner to the other. By refusing to sign marriage certificates, Jones “penalizes heterosexual couples who are coming to the church without actually winning anything for same-sex couples,” Coontz says.
Jones, in a series of five posts, applies Martin Luther’s two kingdom theology to marriage, arguing that marriage as we’ve known it is evolving, that government has no interest in marriage or sex, that the church does have an interest in marriage and sex. His conclusion is that, given these problems, clergy should not put their name to a state document like a marriage license.

A few preliminary comments:

  • Luther’s two kingdoms theology is a model of understanding how God reigns through different authorities, NOT how the world is bifurcated into hermetically sealed spheres which are then impenetrable.
  • The argument that marriage has a convoluted history and is in the process of evolving says nothing about what marriage ought to be, but only how it has been wrongly incarnated in different cultures. Jones also uses the tired argument that since the state recognizes marriages that are incapable of procreation (the purpose of marriage), then all forms of sexual arrangement (those not given to procreative potential) ought to be given the imprimatur of the state as well. Princeton Professor Robert P. George and two of his students, Ryan Anderson and Sherif Gergis, have soundly rebutted similar arguments that Jones puts forward.
  • Jones states, “As a society, we have decided that the government should stay out of the bedroom.” Really, we have? Jones argument wrongly assumes that state-sponsored sex education isn’t a display of the state’s interest in regulating or at least informing the standards of sexual behavior, and by implication, what would occur in the bedroom.
  • What’s more, government has an interest in what occurs in the bedroom because the outcome of such events has implications for public policy (increased spending on welfare subsidies) and the next generation of citizens. To say that the government is neutral on whether it would prefer for a child to be raised by its parents versus raised in a single-parent household is naive. What occurs in the bedroom, between heterosexuals or anyone else, simply does not stay in the bedroom.  Disease, unintended pregnancies, sexual assault–in each case the state has a vested interest in what transpires, and in the last case, the state sets limits on what is permissible.

Jones states, “the sacramental marriage that is recognized by a faith community has very little overlap with the legal marriage that is recognized and licensed by the state. ” This is only minimally true. Jones’ division between what appears to be a “right” and “rite” obscures marriage’s status as a pre-political institution. The state does not create marriage, but can only recognize legitimate forms and expressions of marriage. Marriage arises regardless of whether the state affirms it.

Yes, marriage does have a legal component for the purpose of conferring benefits, but the legal component, traditionally, has been a shadow of a deeper reality which the state—yes, even secular states like our own—has recognized. Are people just as much married who stand before a judge instead of a priest? Absolutely. But by granting its approval to religious bodies, the state works in conjunction with a deeper reality than itself. And alternately, by the state divesting itself of being the sole grantor of approval for marriage, the state is recognizing a deeper mystery in marriage than is typically found in purely legal contracts.

Marriage is one institution with different aspects. There aren’t “two marriages,” but simply two understandings of the one institution of marriage. Personally, I don’t want to live in a state in which the state does not recognize the religious sanctioning of my marriage. I would of course still get married and it indeed would be legitimate, but in the case of the state failing to recognize my marriage, the state would be limiting itself from recognizing a sphere of authority that has more authority than the state itself. To insist that “legal” marriage and “sacramental” marriage be kept separate is an invitation for the state to assume the totality of the marriage program and to offer dictates as to what constitutes actual marriage within civil society.

But here’s the quandary I’m left with: Even if Minnesota were to grant same-sex couples equal recognition and benefits, why, in Jones’ paradigm, would Christians (or any couple, for that matter) want to go before the state to have their relationship solemnized? If religious sanctioning by his own community is sufficient, why participate in the larger field of marital  benefits that are only, strictly speaking, material?

The state recognizing a church wedding is significant. For in limiting itself, the state is recognizing another authority than itself, and recognizing an aspect of marriage that the state is incapable of bestowing. In fact, the state, the church, and marriages are better off when these institutions aren’t in competition but work in coordination. Alternate scenarios are far more troubling. Philosopher and theologian George Weigel has shown, compellingly, that the classic move of the totalitarian state has been to usurp the institution of marriage away from religious bodies. As he states:

Marriage, as both religious and secular thinkers have acknowledged for millennia, is a social institution that is older than the state and that precedes the state. The task of a just state is to recognize and support this older, prior social institution; it is not to attempt its redefinition. To do the latter involves indulging the totalitarian temptation that lurks within all modern states: the temptation to remanufacture reality.

I would also label Jones’ argument as crypto-statist inasmuch as Jones’ view implicitly grants the state an understanding of marriage that has nothing to do with sacramental marriage. Jones may reply that the church may insist on retaining its own definition of marriage, but in nations where the legal and sacramental are separated, as Jones’ position would require, it has lead to the obliteration of sacramental marriage. The result was a form of “legal” marriage (to use Jones’ terminology) treated by its participants “with such unrestrained if blithe contempt.” George Weigel explains here how in Communist Poland, the call for “two marriages” actually marginalizes both understandings of marriage.

The church is not looking to the state for it to authorize marriage. Marriage exists prior to the state. The state does, however, authorize the the church (or religious body) to perform a function for the state that supernaturally transcends the state.  Which is good.  Whether he realizes it or not, the thrust of Jones’ arguments requires the state to radically alter the definition of “legal” marriage, which will inevitably afflict those with differing views of “sacramental” marriages.

Ms. Miller rightfully criticized Jones’ argument as “impractical,” “muddled,” and finally, “retrograde” (an odd insult for Jones, a self-proclaimed religious progressive). Further, the brief manner in which Jones’ chose to argue his points is an exercise in why condensing complex arguments is often misguided.

Jones says that he and his wife should not have the privilege of enjoying the 515 benefits that legal marriage confers when so many of his friends (presumably same-sex) cannot share in the benefits themselves. But can we infer that Jones will eventually solemnize his marriage with the state if same-sex marriage unions are solemnized as well? But why would he?  If Jones’ position were consistent, then even under the circumstances where the state recognized same-sex couples, there would be no purpose under his paradigm to unite the legal with the sacramental. The argument is more a tantrum about equal benefits and inverting the moral order than it is about navigating church-state contours.

But let’s return to Weigel, who offers this sober warning:

If the state can redefine marriage and enforce that redefinition, it can do so with the doctor-patient relationship, the lawyer-client relationship, the parent-child relationship, the confessor-penitent relationship, and virtually every other relationship that is woven into the texture of civil society. In doing so, the state does serious damage to the democratic project. Concurrently, it reduces what it tries to substitute for reality to farce.

Jones wants marriage in the church to be kept separate from the state. The only problem is that such separation, historically, has led to increased power for the state and decreased religious liberty for believing citizens—a position I hope Jones himself would be against.