Church and State and Marriage and Divorce

To hear some people say it, we have to follow god’s law, especially in regards to marriage, otherwise Western Civilization will come crashing down.  Unfortunately, especially when it comes to divorce, what god intended is not altogether clear.  Or to put it another way, which religious tradition should we give priority to as they all have different teachings.

Since Christianity is the dominant religion here in the US, let’s take a look at what Jesus said about divorce:

3 Some Pharisees came to him, and to test him they asked, “Is it lawful for a man to divorce his wife for any cause?”
4 He answered, “Have you not read that the one who made them at the beginning “made them male and female,’
5 and said, “For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?
6 So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”
7 They said to him, “Why then did Moses command us to give a certificate of dismissal and to divorce her?”
8 He said to them, “It was because you were so hard-hearted that Moses allowed you to divorce your wives, but from the beginning it was not so.
9And I say to you, whoever divorces his wife, except for unchastity, and marries another commits adultery.”

Now, I am no biblical scholar, but as I read this passage, it seems to me that Jesus says that god intended that there be no divorce, but that he had to allow for it because of people’s “hard hearts.”  So, men can divorce their wives (no mention of wives divorcing husbands!) but unless she cheated on him, if he remarries he commits adultery.   So, Mr. or Ms Lawmaker, there is your biblical basis, write your state law.

Well, if you want to get technical, it would go something like this, “A man can divorce his wife for any reason and can send her away.  But if the reason is anything but unchastity (whatever that is!) if you remarry, we will have to stone you to death for adultery.”  A few minor issues with this, obviously it is a bit one sided and there is no provision for what to do with any children in the marriage.  Surely Jesus is not being so immoral as to propose that men can send their wives (and children?) away for any darn reason to fend for themselves and as long as they don’t remarry things are good.   And he also does not define “unchastity” which apparently does not mean “adultery.”  Since he elsewhere defined “adultery” as simply looking lustfully at someone else, who knows what “unchastity” might be or how the soon to be ex-husband can show his soon to be ex-wife did that so he can remarry without getting stoned.

Since I am not a biblical scholar, maybe the churches can help write our state law.

The Catholic Church™, Inc. sees the divorce part as an addition by Moses and therefore does not allow divorce for any reason.  No divorce, no remarriage.  However, the church does allow for annulments which means that a “valid” marriage never took place.  Which if you think about it is a strange thing for a church or state to allow.  “We went to all the trouble to get you two married, but it seems that was all a dream, just kidding.”  In practicality annulments work like a divorce, but at the state level causes more problems than it solves.  If they were never married are the children illegitimate? If they were never married, who gets what stuff?  And so on.  I don’t think the Catholic model will work for a state law.

Unfortunately, looking at other Christian churches doesn’t really help.  This list pretty well sums up the problem:

Common Protestant views:

  1. Neither divorce nor remarriage are allowed.

  2. Divorce is OK, but not remarriage.

  3. Divorce is OK; remarriage is OK in cases of adultery or desertion.

  4. Divorce is OK for many reasons; remarriage is OK.

In other words, pretty much every possible position is taught in Protestant churches in this country.  Just for comparison’s sake, here are positions that tend toward the extremes, but both argue from a biblical position. Here is the liberal view and here is the conservative one.

And that does not even include the Jewish or Islamic points of view.

And none of this, although it may be covered in other places in the religious traditions or even the bible, says what to do with any children from the marriage or the property of the couple.

Now, if I were a legislator (and thank goodness I am not!) it seems to me that the best course of action is to allow a fairly liberal set of criteria that protects the interests of all the parties.  So, we don’t want people to able to simply walk away from their marriage and family, but rather put in place a process that provides protection especially to vulnerable parties, children and stay at home parents.  A process that assigns financial responsibilities, allocates accumulated assets and allows people to start over again with remarriage if they so desire.  Oh, and also provides for the process to be gender neutral so that wives can divorce husbands as well as vice versa.

The religious traditions can and will certainly shape the legislation, but there is obviously much that the religious traditions don’t cover, so the laws will be in much more detail than the religious teachings, but that is to be expected.

Those who feel that the law is too liberal are certainly free to hold themselves to whatever “higher” standard they would like.  Those who feel that divorce is always wrong can simply not get divorced.  Nothing in a liberal divorce law impinges on the religious freedom of those who want stricter standards, they can find those in church.

However, moving in the other direction can impinge on religious freedom and therefore must have a very good reason.  For example, making divorce all but impossible would be against the religious traditions of many Jews, Muslims and Christians.

This is not to say that the religious practices can never be over ruled by the state, sometimes they can.  For example we don’t allow child abuse just because the bible said, “Spare the rod, spoil the child.”  In the past, I feel the Supreme Court has done a good job of balancing religious freedom within the needs of modern society.  Some of their more recent rulings, like Hobby Lobby, I feel have missed the mark.

Conservatives sometimes feel as if their position is the “traditional” one and many times that just is not so.  It is more generally true that there have always been a range of positions, and this is certainly true in the case of marriage and divorce.  Trying to institute “traditional biblical values” in secular law generally runs roughshod over the religious freedom of believers and non-believers alike.

Ironically this is what makes a secular society a bastion of religious freedom.  A liberal secular society allows for a wide range of religious belief and practice.  A theocracy (or any strict ideological system) shuts down religious freedom by only allowing the “right” kind to be practiced.  So while you may certainly feel that secular society doesn’t reflect your religious beliefs, you can thank the founders that you can express your discontent and believe what you want.


3 thoughts on “Church and State and Marriage and Divorce

  1. Agellius says:

    You have a bit of a misunderstanding of the part about Moses. The Pharisees ask Jesus why he forbids divorce, in light of the fact that Moses allowed it. Jesus replies that Moses allowed it (centuries before) because of the hardness of their hearts, but that God never intended it and he himself forbids it.

    The word translated “unchastity” is “porneia”. You’re right that this word doesn’t mean “adultery”, but rather “unlawful sexual intercourse.” For this reason the Catholic Church doesn’t believe that Jesus is allowing divorce in cases where wives commit adultery. If that were the case, then Jesus would have used the word for “adultery” which is “moicheia” (see e.g. Mark 7:21, in which both “porneia” and “moicheia” are used, the former usually translated as “fornication” and the latter as “adultery”). Rather, he was contrasting authentic marriages with relationships in which people were committing “unlawful sexual intercourse”, or in other words, invalid marriages. The point being that if you leave your legitimate wife and marry another then you’re committing adultery, but this doesn’t apply in cases where the woman is not your legitimate wife, in which case you can marry another.

    An annulment means that the conditions for the sacrament of matrimony were not fulfilled. Conditions include such things as both parties being free to marry, and freely giving their consent. Thus, if one of them is already married then he can’t marry again. If he does, then the second marriage is not a valid marriage. Similarly, if someone marries under duress, for example under threat of some kind, or while suffering from mental illness, then like any contract, it’s invalid. I think it would create far more problems if the annulment process were not available in cases like this.

    And by the way there are such things as civil annulments, which are granted for many of the same reasons.


  2. You and I both know that annulments in the church are essentially divorce. I know people who have obtained annulments and they were not coerced into marriage or marrying a bigamist. And yes, I know there are civic annulments, but I don’t have the time to investigate different state requirements for them and how they answer the questions of children and property, etc.


  3. Agellius says:

    “You and I both know that annulments in the church are essentially divorce.”

    You may know that but I don’t. Divorce and annulment are essentially different. If they weren’t, then they would have the same grounds. But even civil annulments have different grounds than civil divorce. You can divorce civilly simply because you’re not happy together, but you can’t annul your marriage on that ground, either civilly or ecclesiastically.


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