The ghost of civil marriage does not deserve our loyalty. In fighting for it, we are going against the grain of American individualism and goading libertarians to join our enemies—–who will, as always, use them then toss them aside. Instead, we can make common cause with libertarians and invoke for our self-defense some cherished American principles, such as freedom of association, contract, and even religion.
And here is how: instead of demanding that the state enforce a single model of marriage contract—–one that is already hopelessly compromised—–we embrace freedom of contract and insist on it for ourselves. Why is it, we should ask, that Christians cannot draw up a legal contract that binds them as their sacrament says it does: for life? Why can’t we embrace that difficult promise and freely agree to have the state enforce it? Last time I was on a casino boat in Baton Rouge, you could mortgage your house on an ATM—and the state would enforce it. Why is it that Christian marriage remains an unenforceable, meaningless contract? As things stand now, in many states gay marriage is legal while Christian marriage is not.
Let’s abandon the notion of a single, normative marriage contract which is all that the state will enforce. Let private individuals (or their churches) produce contracts that lawyers can vet, which once signed will be enforced by the state. These contracts can be polygamous, homosexual, or celibate for all I care. Christian marriage can be one of those contracts. Churches that are serious about marriage can make signing a really solid (“covenant”) contract a condition of marrying in their place of worship. Every parish can have the boilerplate on its website: sign here or go find another Gothic building for your ceremony. To protect the liberties of everyone involved in this newly pluralist society, certain anti-discrimination laws also must be changed. If a gay employer doesn’t wish to hire Catholics, he should have that right—and the same for the goose as the gander.