Separating Marriage from the Stage: The Idea of Social Contracts

Marriage is like a pair of shears oft times working in opposite directions, but punishing anyone that comes between them.
—Sydney Smith

The idea of contracts is deeply embedded in Western history and culture. Contracts reflected the Enlightenment ideal of reconciling individual autonomy with social obligations. In 1651, Thomas Hobbes introduced the governing principle of the social contract: “For in the act of our submission, consisteth both our obligation, and our liberty . . . there being no obligation on any man, which ariseth not from some act of his own.” Consequently in the words of one social critic, contracts “are the paradigm of self-chosen obligations—obligations that are not imposed, commanded or chosen, but are freely undertaken.” This theory defines obedience in terms of liberty, making contracts an integral part of the Western tradition of ordered liberty. Ironically, this incorporation of liberty also recognizes a certain equality of individuals—for all persons may enter into contracts. Thus, contracts are also instruments of egalitarianism.

For centuries, contracts have ratified the cooperation of private parties and resolved conflicts between individual interests and communal concerns. The flexibility of contracts derives from their utility as a system of insuring the exchange of goods—whether material or intangible—such as commitments. In the context of politics, the social contract establishes the consent of the governed as a principle for the legitimacy of government authority, and in the sphere of economics, private contracts create a series of mutual obligations among individuals. And in modern politics, contracts exercise a power beyond their strict legal parameters—as demonstrated so effectively by Newt Gingrich’s “Contract with America.”

This historic function offers a potential solution to the gay marriage debate. This past summer, the U.S. Supreme Court overturned a Texas sodomy law, invalidating similar laws in 12 other states and provoking social conservatives to decry the decision as nearly destructive as Roe v. Wade. This reaction soon coalesced into the Federal Marriage Amendment, which is slowly making its way through Congress. These developments foreshadow what may be one of the most fiercely contested battles in the culture war: gay marriage. The contractarian approach may avert such a “clash of orthodoxies,” by preserving the rights of homosexuals as individuals and respecting the cultural prerogatives of social conservatives. Such a solution would classify “civil unions” as a social contract as distinct from “gay marriage.”

This argument may seem dependent on semantics, but the use of the term marriage is critical. “Marriage” has been used for millennia by different cultures to mean a variety of sexual arrangements. Once solely performed by religious institutions, marriage is now supervised by the government, even though the problems with mixing church and state are supposedly precluded by the First Amendment. Perhaps laws relating to marriage do not rise to the level of “respecting an establishment of religion,” but determining how such a traditionally religious and immensely ambiguous term shall be defined and used for government purposes remains problematic. The contractual nature of civil unions divorces the issue of gay rights from this perilous debate over the meaning of marriage.

Indeed, even more worrisome than the government’s employment of a word with variable meanings is the fact that government is attempting to regulate a voluntary agreement between mentally competent individuals—something that is clearly beyond the state’s jurisdiction. Our government needs to heed the words of Jesus: “Render therefore unto Caesar the things which are Caesar’s; and unto God the things which are God’s” (Mathew 22:21). Let the state issue contracts, let the church define marriage.