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Marriage and religion are public affairs

The National Post, 31 July 2021
 
Should the state get out of the marriage business? That's what Barry Cooper and David Bercuson recently argued in these pages. The state's retention of an interest in marriage, they suggested, is inconsistent with Trudeau's dictum that the state has no place in the bedrooms of the nation. What is more, it violates not only the bedrooms but the churches of the nation, to which marriage questions rightfully belong. Marriage, in other words, is not a public affair, and neither is religion. Leave the one to the other and complete our retreat from the interventionist state.

This argument is being heard more often these days. I suggested something like it myself in this newspaper a few months ago, when I insisted that the abolition of marriage will be the outcome of the government's current course of action. I was taken up (sans sarcasm) by Russell Smith in The Globe and Mail: “Why not eliminate marriage as a legal category altogether, and leave it as a religious one?” asked Smith. “We don't issue legal certificates for confirmations, circumcisions or bar mitzvahs. Why not leave marriage to the churches and temples and covens?” But, with all due respect, the argument that the government should abandon marriage will not stand much scrutiny, for it is built on a series of half-truths.

Let me try to deal with it in the form given it by Drs. Cooper and Bercuson, beginning with some comments on Trudeau's dictum. The notion that the state has no place in the bedrooms of the nation is both true and false. It is true as a matter of criminal justice, which requires a distinction between sin and crime. It is true as a matter of human rights, which include the right to privacy. As a matter of family law, however, it is false. The state has an interest – not a controlling interest but an interest just the same – in family life and human reproduction, for these things belong to the foundations of society. Hence it cannot entirely ignore the bedrooms of the nation any more than it can ignore, say, the private laboratories of the nation where reproductive technologies are pursued; or the divorce courts, where the details of the nations' bedrooms sometimes spill out.

Now, according to Cooper and Bercuson, “interpreting the will of God” is what the marriage controversy is really about. Getting the state not only out of the bedrooms, but out of marriage altogether, will disentangle it from this essentially religious struggle. In taking this view they are echoing that of the Law Commission of Canada in Beyond Conjugality: “Contemporary Canadian understandings of religious freedom and equality require that the state not take sides in religious matters. The history of marriage regulation in Canada has thus been characterized by a progressive uncoupling of religious and legal requirements, reflecting a growing emphasis on the separation of Church and state in a secular and pluralistic political community. Our current understanding of religious freedom requires that laws and policies, including those that regulate personal adult relationships, pursue objectives that can be defended in secular rather than religious terms.”

But this too is a half-truth, however balanced it may sound to the pious secular ear. Whether we like it or not, the state cannot fail to take sides in certain religious disputes. The LCC itself has done so right here, in its own decision to make marriage a sub-category of what it calls “close personal adult relationships.” For to do that is already to disagree with the major religious traditions about what marriage is, and to side with the view of a small religious minority and a somewhat larger anti-religious movement. 

Yet another half-truth is found in the notion that religion, like sex, is not public but private. One of the ironic aspects of this debate, and of our society, is that as sex has been getting more public – a fact that makes Trudeau's dictum increasingly irrelevant – religion has been getting more private. It's okay to stroll down a Toronto street with nothing but sandals on, if you do it in a “gay pride” parade, but not okay to stand (clothed or otherwise) near an abortion clinic and pray to God that people won't kill their babies.

But who says religion is private? Cooper and Bercuson do, though it is not clear to me by what authority: “Religion is, and is accepted to be, in the realm of the private, not the public domain.” Of course it all depends on what you mean by private. Private in the sense that the state can't give it and the state can't take it away, yes. Private in the sense that it is a mode of life not publicly conducted, or that it has no direct bearing on the common good or on public policy, no. Historically, semantically, and philosophically that is less than half a truth. It is no truth at all. Insofar as the state adopts this private view and imposes it on the public, it will find itself more, rather than less, entangled with religion. The people Cooper and Bercuson don't yet see on the streets will be there.

 And here we must identify one more half-truth. Divorcing marriage might simplify things for the feds, but only for the briefest moment, as Beyond Conjugality makes clear. It most certainly will not simplify things for Canadian citizens, who will have to contend with a whole new range of interventionist statutes. Here is one citizen, at least, who doesn't want the government (or the Law Commission) trying to regulate his close personal relationships, thanks just the same! Putting up with the botched job it has done with marriage is trial enough.

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