It is axiomatic that because women have the right to vote, the laws concerning marriage will not be changed for the better. In fact, it’s probably a good bet that the laws will only get worse over time until the system finally breaks. However, there is a way to do an end-run around the legislature through the judicial branch, which is what “progressives” have done for years. There’s no reason that same sheet in their playbook can’t be used.
In civil rights litigation the object is to get the courts to implement a social change that the legislative bodies will not respond to; or to extract cash and prizes from someone in order to teach them a lesson and effect social change. In the big cases everyone has heard about, litigants were using the courts to enact a change by judicial fiat. Think of the civil rights movement, the issue of abortion, sodomy laws, gay marriage, you name it. The idea is to reframe an issue in such a way the court gives you what you want. However, in order to reframe the issue there has to be a goal.
What is the goal with respect to marriage?
Because of the need to tie this down tight under the rubric of religious free exercise, we start with the Bible. Genesis 2:24 and associated passages of Scripture inform us of the standards for marriage:
- The authority to initiate marriage is given to the man, no other.
- The standard for marital commitment by the man is permanent but non-exclusive and the wife gives permanent and exclusive commitment to her husband.
- Consummation creates the marriage, nothing else.
- A father’s permission isn’t required but he can annul the marriage if he doesn’t consent or approve of the marriage when he hears of it (after the fact).
- An eligible non-virgin must consent to marriage in order to be married.
Notice that none of these things has anything to do with the State or the Church. The reason is that God gave the man a grant of authority to create marriage in Genesis 2:24. This authority to create marriage did not include the authority to end a marriage until Moses, who permitted divorce. (see Deuteronomy 24:1-4). The authority of the man within the marriage was described in Ephesians 5:22-24 as being the same as Christ’s authority over the church, because in Genesis 3:16 women were commanded by God “he shall rule over you.”
Quite simply, there is no room for either state or church in this business of getting married or being married.
The State has its job keeping order and governing. The church has its job making disciples of all men. The husband has his job of ruling his own household. Three separate entities, three separate jobs.
The problem is first, about 1500 years ago the church usurped the authority of the man and decided by fiat that the church was in charge of marriage and no person was really married without following the church’s rules and receiving the church’s blessing on the marriage. Following the Protestant Reformation the church lost it’s grip on power and control such that the state seized power over marriage. This culminated in a licensing scheme and rules by the State concerning marriage, specifically regarding the termination of marriage.
You can’t allow the church a voice in this because God didn’t give them a voice in marriage.
You can’t allow the State a voice in this because God didn’t give them a voice in marriage.
The only way to win at a high level is to place the issue squarely before the court in such a way as they cannot dodge the bullet. That means reliance solely on Scripture. The landmark case US v Seeger is helpful in understanding the importance of being congruent. Reading it, one might think it’s about draft dodgers. The subject is a conscience-driven objection to the draft but the issue is religion, and the Supreme Court laid down their test of religious belief in this case.
The individual has the right to choose their system of religious belief, but the court reserves for itself the right to decide if that religious belief is truly and sincerely held.
As soon as one brings a church into this the water is immediately muddied with the teachings of that church, especially doctrine and statements of faith. A family exists within a church in the same way a church exists within a state. Get it? The State doesn’t have the right to dictate doctrine to the church any more than the church has the right to dictate doctrine to the family. Some will howl and scream at that, but it’s true. The church (which includes the families) is required to obey the law of the state. As long as the church is within the bounds of the laws of the state, they have freedom to act. It is the same with the family. As long as they are acting in a moral manner in accordance with God’s Law, the church has nothing to say to them.
God’s Word defines what morality is. As soon as one steps off that rock, you’re on shifting sand. God’s Word and only God’s Word defines morality.
The Bible placed the husband in charge of his family. Full Stop. No other person or entity has MORAL authority over the family other than Christ. The authority to create a family by taking a wife is also the authority to take another wife. Having more than one wife is not immoral because the standard of commitment established by Genesis 2:24 is non-exclusive commitment by the man and the authority to marry rests solely with the man. Keep in mind that a man marries a woman, a woman is married.
Keep in mind also that the church usurped the authority of the man over his family over a thousand years ago. The result of that usurpation of authority by the church meant following the protestant reformation that the (now secular) governments didn’t want the church doing any more social engineering so they too usurped that authority for themselves. Keep in mind, we’re talking about a rights issue. If you go back to the book, God gave the authority to the man, nobody else.
Let’s bring this back to litigation.
The goal is to get families with written, contractual marriages created as a matter of right (rather than privilege) recognized by the courts as being possessed of the authority to define their own standards within their marriage (Yep, that’s right officer, she granted me permission to spank her anytime I think she needs it and we put it in our marriage contract). That’s a tall order.
That’s why this has to start with something so far outside the norm that it only makes sense to “give them what they want” and establish judicial support for covenant marriages that define their own terms. Yep, that’s polygyny. It’s far enough out there it would make more sense for the court to recognize the contract than deal with the fallout of judicially voiding the contract and violating the religious rights of third parties.
Once the concept is established and judicially accepted it should be safe for monogamous marriages, but not before then. I also believe it would be far more difficult for this type of case to be won as a monogamous marriage (and take far longer), whereas with a polygynous marriage the issue could be forced fairly easily due to the nature of the marriage. Sorry, but monogamy just looks too much like ‘same old – same old.’
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