Agency, Agency, Everywhere - A Reply to R.R. Reno, Ephraim Radner, and Christopher Seitz

The recent spate of federal circuit courts invalidating state marriage laws has produced renewed conversation among Christians (and indeed, religious of all stripes) as to what exactly churches ought to do when confronted with state marriage laws that permit marriages among not only heterosexual couples, but homosexual couples as well, though even that limit may soon go by the wayside as thruples and other unions seek legal recognition. As many Christian philosophers and pundits have observed, as well as some of the more honest progressives, the legal reasoning behind a finding of “animus” towards homosexual couples (or legislation based on “ickiness”) does not admit of limitation to same-sex couples only. As progressive Kent Greenfield noted in The American Prospect: “You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right.”

Included in the conversation on “what to do” have been a number of voices, often intelligent, discussing the idea of “getting the church out of state-sponsored marriage.” One notable example is that of Helen Alvaré, long a pro-life advocate and lawyer, who recently penned the first in a series of articles discussing the pros and cons of the former case, entitled “Should the church abandon civil marriage?”

It is with this problem that the ever-thoughtful R.R. Reno is concerned in a recent FirstThings blog post entitled “A Time to Rend,” in which he discusses a pledge from Ephraim Radner and Christopher Seitz, and argues that the time has come for Christian ministers to withdraw from acting as agents in state-sanctioned marriage. Reno believes that the state has redefined marriage, “making it an institution entirely under the state’s control,” which is “why it’s now time to stop speaking of civil marriage and instead talk about government marriage—calling it what it is.” In doing so, he agrees with Radner and Seitz, who have formulated a pledge which, when signed, “requires ordained ministers to renounce their long-established role as agents of the state with the legal power to sign marriage certificates.” There are several parts of this pledge with which I am concerned, so here are the excerpted parts, combined:

As Christian ministers we must bear clear witness. This is a perilous time. Divorce and co-­habitation have weakened marriage. We have been too complacent in our responses to these trends. Now marriage is being fundamentally redefined, and we are being tested yet again. If we fail to take clear action, we risk falsifying God’s Word….Therefore, in our roles as Christian ministers, we, the undersigned, commit ourselves to disengaging civil and Christian marriage in the performance of our pastoral duties. We will no longer serve as agents of the state in marriage. We will no longer sign government-provided marriage certificates. We will ask couples to seek civil marriage separately from their church-related vows and blessings.

There is truth in this position – divorce and co-habitation have weakened marriage, as have many other cultural forces, such as pornography and contraception, and yes, court decisions. Our long complacency on many of these issues is a cause for scandal, inside and outside of the Christian churches. Clear action is indeed required.

With that said, I do not believe that the action contemplated is clear and completely considered. First, I am not sure that the reason given for refusing to act as ministers bears scrutiny. Second, in order to maintain coherency, an additional statement must be required. Third, I doubt that the ministers are prepared for the inevitable fallout of this step. Please bear with me as I explain my reasoning, for the issues at hand are bound tightly together, consist both of moral and pragmatic concerns (if such can be divided) and must be teased out carefully.

First, I think it is first necessary to clarify what exactly a minister is doing when signing a marriage certificate. In Indiana, where I practice law, certain persons are granted power by the state to “solemnize” a marriage, including mayors, judges, clerk of court, priests, rabbis, and imams, among others. Prior to marriage, a couple applies for (and usually receives) a marriage license from the clerk of courts, which permits them to be married in the eyes of the law. After the marriage ceremony, the minister signs a marriage certificate indicating that the ceremony was performed, gives an original to the couple, and files a duplicate with the clerk of courts. If ministers were to withdraw from this function, in order to have their marriage recognized as valid, the couple would need to “seek civil marriage separately from their church-related vows and blessings,” to borrow from the Pledge, performed by some other minister (mayor, judge, clerk of court, etc.).

Thus far, Reno, et. al., may be correct (one could make the argument that the minister is instead the agent of the couple in their dealings with the state). For the purposes of this argument, let us assume that the minister is acting as an agent of the state in filing the certificate. What has this minister done, precisely? The minister has reviewed a marriage license which under Indiana law “is the legal authority for an individual who is authorized to solemnize marriages to marry two (2) individuals,” and then signed a certificate that the two people were married by the minister in accordance with the marriage license. It is with that certificate that the minister’s action on behalf of the state begins and ends. While there are different types of agents, depending on the scope of representation, an agent who acts for a limited purpose, for a single task (such as witnessing a marriage certificate), is known as a “limited” or “special agent,” which is found in Indiana law as old as 1872, and in earlier cases back to pre-colonial English law.

In doing so, does the minister approve of any other agencies or actions undertaken by the principal? It does not seem so. The authors of the pledge agree that they will only perform Christian marriages – in doing so, they are binding the government to recognize those marriages as valid, and not reducing the inherent value of those marriages. Even if another minister or agent of the government (e.g., mayor), binds the government to legally recognizing a same-sex union, this does not affect the agency of the minister witnessing a Christian marriage, nor does it require such a minister to agree with or approve the actions of the other agent. Consider the parable of the talents from the Gospel of Matthew 25 (so ancient are the norms of agency law)! The two worthy servants are not bound to act in concert with, nor bound to approve, the actions of the lazy servant.

If the objection to acting as an agent cannot be sustained by an objection that one is approving of the acts of other agents, could it be argued that witnessing a marriage for the government is somehow an inherently immoral act? Reno seems to hint at this when expressing his problem with language used in marriage certificates. However, I think the case that semantic differences affect the marriage or witness somehow is weak – use of the placeholders “Spouse A” and “Spouse B” hardly carries the taint of lie, and is not immoral if the underlying act is moral, which I think both Reno and the authors would agree is the case.

Therefore, according to these agency principles, the minister is neither approving of marriages witnessed by other government agents, nor engaged in an inherently immoral act by following a form prescribed by the government simpliciter (as opposed to, for instance, a Christian doctor forced by the government to provide abortions). If neither the signing of the marriage certificate, nor the form used, nor yet the act itself are immoral, these do not provide support for the minister’s action of withdrawal. There is, however, one additional possibility, which (borrowing from Sherlock Holmes), must be the reason, having eliminated all other possible solutions. This is the idea that the principal is so disordered that to perform any act for that principal entails participation in some form of evil. This would be an extreme and rare occurrence, to be sure - as Solzhenitsyn trenchantly observed, it is rare (if impossible) to simply separate evil ones doing evil deeds from the rest of us. Even an imperfect principal may act justly, especially when the ordered act is just. One has in mind the parable of the talents again, where the servants are clearly acting as agents for a master who admits that he “reap[ed] where I sowed not, and gather[ed] where I did not scatter.” And yet, still the punishment given to the servant who did not use his talents well for such a master is just.

If the belief in the irredeemability of the principal is behind the pledge, it makes the action more confusing still, for the ministers then take the curious position of referring newlyweds to other agents of their principal to have their marriages “legalized.” This arguably violates a classical tenet of moral reasoning – in refusing to undertake an action for another that is immoral, one may not then commend the other to a new source for the immoral act. One becomes thereby an agent of an agent, and a secondary participant in an immoral act. In addition, it makes it more difficult to maintain moral coherency. What would a member of a church think if, in one breath, a minister inveighs against state-sanctioned marriage as inherently immoral, and then in the next, refers the couple to the government to be married? Must the minister not state that, as the government idea of marriage is so inherently flawed, couples must avoid state-sanctioned marriage entirely? If not, what is the justification for refusing to witness marriages on behalf of the state, yet not claiming that couples should avoid the state-sanction entirely?

Or, have I intuited the next step? Are the signers of the pledge preparing to take the step that only church weddings are moral and binding, and that believers of all faiths must avoid government-sanction at all for their marriage, for that would be to cause them to participate in an inherently immoral enterprise? This, then, would indeed be morally coherent, which brings me to my second point.

This step would result in disaster. For better or worse, government-sanctioned marriage places the married couple within a massive legal framework, one within which, to borrow from St. Thomas More, the devil is given protection, but so are heterosexual spouses and their children. For instance, there is a presumption in the law that a divorce results in a division of property equally, absent a prenuptial agreement, with fifty-percent to each spouse. Such a presumption is not present in a “breakup of friends,” which is how a “church only” marriage will be viewed legally in most jurisdictions. When the husband of such a couple elects to take all the assets and abscond with a new wife, there will be no such presumption, particularly if his work provided all of the financial support to the marriage. Or what of the presumptions present in most states that a child born of a marriage is a child of both parties? Without the legal framework in place, those children will not have that presumption. Suppose a wife is unfaithful and admits this to her husband while pregnant. Happily, he forgives her, and agrees to continue in marriage. Some years later, he changes his mind, obtains a DNA test, proves that the child is not his, and abandons his wife to her own devices; no child support will be paid. All of this is to say nothing extensive of the wreck this will make of estate law, where the wife has no legal standing whatsoever to her husband’s solely-owned property without a will, in tax law, where the parties will always file separately and incur additional costs to determine who will have the benefit of claiming the children as deductions, and in any other area where marriage confers legal presumption.

To be sure, there are some legal devices in place which will mitigate these occurrences, particularly in the case of legally unmarried couples with offspring, but they are in their infancy, and designed to deal with unmarried couples and unstable relationships, which is where marriages without state sanction fall. If you doubt the rarity of these occurrences, do not. I tell you this as a practitioner, who has read court cases of couples who have been “together” by their own choices for 20+ years, and at the death of one, the remaining couple finds herself in a legal whirlwind of claims from distant relatives who have legal rights to the property in question under the laws of intestacy.

Some may say that what the couples need is contractual marriage – in other words, the couples write a marriage contract dealing with their relationship and all of its aspects. In addition to having to modify such a contract constantly to deal with new variables, and the additional estate planning necessary to take that into account, will the contracts deal with divorce or abandonment? Aside from the difficulties of enforceability of such contracts for legal reasons of consideration and others, what does one reply to critics who accuse Christians of switching sides on prenuptial agreements to suit their own purposes?

Furthermore, and this is my final point, Christian pastors must realize that, if this step is taken and they are prepared to withdraw from acting as agents of government sanction, then the reverse must also be true, and Christian churches must no longer rely on the government. Many Christian churches have long used the government as their own agent in regulating and granting divorces, without protest, and have willingly remarried those civilly divorced individuals without further action within a church court of some form. If the pledged step is taken, it will not be enough to stop being an agent of the government – there must be a concomitant refusal to recognize the legitimacy of the government grant of divorce. Couples married both in Christian churches and civilly could not be remarried in a Christian church based upon the government’s divorce. It would be strange to insist upon the necessity of refusing to act as a government agent as some form of protest, while at the same time, recognizing divorced granted by the government as binding and legitimate within a Christian setting.

And so, every marriage in a Christian church performed by a “pledged minister” would henceforth come with a disclaimer: “The ceremony we undertake marries you in the eyes of the Church and God – but it does not marry you in the eyes of civil society. You should consult the law and an attorney to learn precisely what effect this will have on your children, your finances, and other areas of your domestic life.” To avoid this would be a dereliction of the ministers’ own agency to the couple in witnessing the marriage, for an agent is obligated to inform his principal of any pitfalls or serious problems which may result from an agent taking any particular step.

Are ministers prepared to take these steps of uncoupling from the state, in both directions? Be prepared – the couples who marry only in the churches, who do not follow through with legal sanction, will be turned loose into a legal no-man’s land, with few protections in the law. And when you have cut down the laws, and the devil turns ‘round on these couples…what will be said to the woman who comes after the service, crying that her husband has taken the money and fled…and the courts offer no remedy?