Untying a civil knot - The Jewish Standard

There is good news on the marriage front: Married couples are finally in the minority in the United States. According to just-released statistics from the U.S Census Bureau, slightly fewer than half the 111.1 million households in this country were made up of couples who have tied the knot, so to speak. (Actually, no one ties the knot these days; the expression comes from the way beds used to be constructed, including the "marriage bed.")

As the bureau counts, about 10 percent of the people living together are unmarried.

It is time to cheer.

Now before you take keyboard in hand to write a condemnatory letter, let me explain. I support marriage and encourage people to marry, I just do not believe marriage is the province of the state, especially in a democracy that prides itself on maintaining a separation between itself and religion.

"Marriage" should be the sole province of the religious sector. The state should stop handing out marriage licenses and start distributing civil commitment certificates.

This would immediately end the debate over same-sex marriage and also resolve the divorce dilemma.

Regarding the latter, "civil commitment" would be a contractual arrangement subject to contract law. It would also redefine "civil commitment," which is a term used for locking up people in jail or a mental institution without resort to criminal proceedings. Use of the term here is not meant to suggest that marriage is a form of imprisonment.

The contract, among other matters, would spell out the exclusivity of the union, how it is to be terminated and what the responsibilities of each party will be at termination and beyond. Divorce attorneys likely will resist any such change, but attorneys who specialize in contract law would probably salivate at the opportunity to craft new legal instruments. Civil courts, meanwhile, would be freed of the onerous task of determining divorce settlements and would be able to rely on what the parties already agreed to in enforcing the contract’s termination provisions.

As for the former, not to allow same-sex marriage is to discriminate on the basis of sexual orientation, which is prohibited by law in virtually every area except marriage, which in itself is discriminatory. The proposed solution offered by those who support a ban on same-sex marriage is to create civil commitment for gay couples. The "separate but equal" doctrine has long been considered discriminatory and should not be revived.

Exchanging marriage for civil commitment, meanwhile, may have a potential additional benefit. Many of the couples who today refuse to engage the state in their relationships may be more inclined to go to an attorney and draw up a contract. The state can still get its "cut of the action" by requiring that the contracts be filed and providing a filing fee. It also can continue to regulate who may or may not enter into such a relationship, although doing so would create a "slippery slope" the state may be better off avoiding.

Supposedly, marriage was traditionally a secular function until the fifth century, when the church decided to get into the marriage business. So, at least, the social anthropologists insist. That this is nonsense is demonstrably provable from the Torah, as well as the sacred documents of other ancient faiths.

Because the Torah is our concern, we will limit ourselves to it and the laws that derive from it. To begin with, marriage is surely meant in Genesis ‘:’4, which states, "Hence a man leaves his father and mother and clings to his woman, so that they become one flesh."

There is no question that marriage is meant in Deuteronomy ‘4:1, which begins with the words, "A man takes a woman and possesses her." We can quibble about what "possesses" means another time; the rest of the verse is about the man’s obligation to divorce a wife he no longer loves and there is no divorce if there is no marriage.

In between, we have Abraham sending his servant to Bethuel’s house to find a wife for Isaac (not to mention marrying Sarah and Keturah) and Isaac sending Jacob to that same house to find a wife for himself. Amram marries Yocheved, Moses marries Zipporah, and so on.

The Torah also has laws regarding levirate marriage, which first enters the picture in Genesis when Judah marries off two sons to Tamar and refuses to risk a third.

And, of course, marriages abound in the rest of the Tanach, as well.

In the Torah, too, there are laws against adultery, which also requires marriage (if a couple is not married, their affairs with others cannot be adulterous), and even laws regarding betrothal and marital obligations. There also exist laws about marriages that are prohibited.

Of course, what the Torah — the written law — mandates, the oral law legislates, and Jewish law has much to say about betrothals and marriage, down to the specific wording that is acceptable in the contracts for each, the nature of the ceremonies involved, the methods for dissolving a marriage, and the wording of divorce decrees.

The last time I checked, the Torah is a religious document defining the obligations of a Jew, while the rest of the Tanach is considered "holy writ." That makes marriage a religious concern for at least two millennia and probably three before the social anthropologists claim religion entered the wedding picture.

It also raises the question of what business a secular state has in deciding who may marry whom. Separation of church and state means the state stays out of the church’s business.

True, under the principle of dina d’malchuta dina, the law of the land is the law, most Jewish authorities have ceded the sanctioning of marriages to the state. Indeed, they will not themselves permit marriages that the state does not sanction but Jewish law does. This does not remove marriage from the religious sphere, however. It merely acknowledges that religion at times must accommodate the norms of general society.

Those norms, however, are what must change.

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