I think you're on to the right track.
When I said kinda in the last email (other forum) I did not have time to go into detail.
The concept is simply called organizational coverage. Muslims, and the homosexuals, and other non-legalized or non-government recognized unions have something that too few have today in Christianity, a trait called "SO WHAT IF YOU GET GOVERNMENT BENEFIT FOR YOUR RECOGNIZED UNION. WE ARE JUST FINE WITHOUT IT AND DON'T NEED IT"
In short these groups understand marriage to be a
private contract between either the members in the family or each other. Many do not care to receive government recognition. They have their own private unions within their own religion or families and they see this as enough. They can make up the other benefits in other ways largely through wills, life insurance policies, personal retirement accounts, etc. However, there is still to a degree some disrcimination that can still be resolved if the law will go far enough just to recognize all unions as either personal or corporate. I'll explain further below.
Now please know that I'm not trying to be critical of your efforts to get a legalized union for polygynous couples. I applaud your zeal and efforts in this. Your efforts along with many others is based on the right heart motives. I am very grateful for you in many ways. Plus, your a fan of Sproul!
That certainly is a great quality about you.
But, there may be a better way, a way that existed for 1900 years before the 20th century made marriages a public legal matter instead of a private relational matter between the adults and families.
In law there are numerous types of law that all flow from two angles or two spheres: (1) civil law and (2) criminal law. Then there are nuances, or spheres, of law within those two broad categories. There are types or perspectives of where law develops and how to view law. Natural law theory, positive law theory, as well as actual legislative law, along with case law. Then there is common law, that sometimes matches natural law and sometimes does not.
Now the idea that we ought to "create a law" through legislation or through case law by court decision to "make polygyny legal" follows a "
positive law" approach instead of a natural law approach. Positive law theorists believe that laws are created by governments instead of discovered by governments. Today's laws on "marriage" have largely grown to be a "positive law" approach instead of a natural law approach. Even conservatives have fallen into this trap.
Now that moves me to the point I was making in the other post about the boxer who goes out into the street to fight and one who goes into a ring to fight. One is punished the other is not.
The key it seems is to get the legal systems to recognize
voluntary associations between
consenting adults based upon the
pluralism law of the 1st admendment. If people assemble themselves, especially in regard to their religion, and their religion brings people together into a union in a peaceful way (honoring essence of criminal law where there is no violence) and this union calls for each member to be responsible towards the other party on a contractual agreement (honoring the essence of civil law) then the law does not need to define the union beyond the idea of it being a "personal union." Civil government does not need to determine if it is marriage or not a marriage any more than they need to determine if a Baptist Church is truly Baptist or Pentecostal because of their view of the Spiritual gifts. The public law only need to protect the individuals in the contractual union and they, or the religion they are in, or the family they are a part of can title it whatever they want just like religious organizations title it whatever they want when they form a union together (an assembly).
The government ought to recognize unions in only one of two ways: (1) A personal or religious union, (2) a corporate or business union.
What we now have though is a mixture of both positive law protecting what is a natural law and natural right, though since it was created it does not perfectly represent the entire natural law. By that I mean this: natural law says a male and female can join together and produce children and be a functional family. No legislative act or case law or civil government is needed for this to take place. It is natural. The innate desire for a man to mate with a woman shows this to be a natural law. Place humans together in a place where there is no civil government and the males and females will mate together by nature.
But then around 1920 or so legislation through positive law did more than recognize and protect the rights of humans to mate. It enacted other laws that define and license and govern who could and could not mate. This then produced a two tier system that is now full of bits and pieces of both natural law along with positive law, which now conflicts with each other in some spheres. Thus we have conflicting court rulings.
As it seems to me then the best scenario is not to join in the fight to make polygyny or any other marital system legal or illegal. Again that would be to revert back to the idea that we need to create a law to make something that is already natural a law. But by virtue of something being natural it is not the government's place to create the law but to only recognize it. Thus, our goal should be to get government to defend individual liberty in his or her choice to mate or not mate with another. And then if you have a religion with clearly defined statements of faith that cover this topic that religion can then be a organizational cover that provides a two level sphere of protection to the people who practice it. The first level is the right of people to peacefully assemble and associate together for a common purpose (i.e. in this case a family) and then in tier two there is organizational protection legally because the assembling together of the partners is protected by their religious right if they are within a religion or church or denomination that clearly spells out their belief on what constitutes a union. Of course the government would not need to then define the union beyond it being a personal union, but only to recognize the union as a legitimate religious or personal union.
As for the government benefits that is still an issue that would have to be worked out. But if the laws were brought into consistency then the government would only see (1) personal unions or religious unions, and (2) corporate or business unions. They would not get involved into gender of the personal unions any more than they get into the gender of those who start a business together or those who form to start a church together. They would not care as that would be a protected right within the concept of natural law or even within the category of civil law. So long as the union is done civilly (they do all they promise to do for one another and do not break their promises) and so long as their is no force against any person's will (criminal law) then the partners can assemble themselves (bind themselves together, contract together, dedicate themselves to one another, marry one another, etc) together however they see fit with whatever terminology they see fit.
I'm not in front of this resource at the moment but one author has written a 1200 page book on the history of marriage. Suprisingly marriages up until the last hundred or so years was never a public legal issue. It was always a private matter with families or even just the two individuals.
Furthermore, there was no such thing among the early Christians as a "legal marriage." They believed in marriage but it was not a license issue or an issued to be governed by King or government bodies. They simply followed natural law which harmonized with biblical revelation.
I think if Christians were to return to the two tier level of protection: (1) Personal right to contract together with whomever they so desire, and (2) a legal protection to practice their religion which is specifically spelled out in their doctrinal position which includes their definition of how the males and females contract together then there would be a stronger case to be made that has much to support it.
There would certainly be judges who would rule to protect this type of union because it would be in line with the right to contract together and the right to practice one's religion. Not to rule that way would by logic also undo every personal contractual union and thus the burden would be hard to counter.
The problem is when we begin to define something that is a private term to a civil public government sphere. Currently, because of our caving into positive law theory instead of upholding natural law, the word "marriage" has been basically copyrighted by the civil government. Because we gave to them the right to "license" a marriage they now own the "term marriage." This was a bad step. What the civil government needs to do is see only "unions" or "contracts" and allow the term to be set by the people in the contract. As I have been saying, we do this all the time with churches and religious groups. The civil government does not care if they call themselves the "Mully Dully Sullies" or "Baptists, Cahtolics, etc." All they see is a corporate non-profit entity that has decided to assemble together for a common purpose that THEY DEFINE according to their own beliefs.
But because so many have run to the positive law side (republicans and democrats both) this is what we are left with where marriage is a "created right" instead of a natural right through the idea of the freedom to assemble together.
People rush to the polls to push for the right to marry as homosexuals. So one party barely gets 51% of the vote and then they push the bare majority onto the rest who resist. They on the other lossing side then get upset and rush to the polls and they fight and push to win with 51% and now they push to protect "traditional marriage" and traditional marriage license laws. But the the other side gets upset and they push back and we have this never ending saga of two parties or two ideas trying to force a bare majority view onto everyone else.
But it looks like to me if we would treat this like we do with Hindus, or with Judaism, or with Christianity, or with Scientology, through the 1st amendment all of us could then get along and co-exist. We don't rush to the polls to make a law (positive law) that says a Scientologist cannot assemble together with another peacefully and practice their religion. Why? Because we have accepted a natural law that all people have a right to worship as their own conscience guides them so long as the assembly is done peacefully and without force or violence. We honor the natural law and we use the SWORD only to defend their right to practice not to define them or make them practice. Likewise, we use the SWORD to protect the right of Christians to assemble and practice their faith. But we do not use the SWORD to make one a Christian or to go to a Christian church.
The point is then this. Marriage as a term and act should be left to the natural law realm. It is a fundamental right as much as the right to worship as the conscience guides. We may fight, differ, and evangelize one another in the private sector on what is a true marriage, what is holy or unholy, and what it should look like (just like we do with various religions), but we should use the SWORD (government power of force)
to defend their right assemble together as they so please. Government should see all assemblies of two or more people either as a "personal or religious union" or as a "business corporate union" and then treat them like they do with the religions by letting them define themselves.
This is exactly how courts and the civil government sees religions today. They see them as non-pofits corporations. It does not matter if it is Jewish, Christian, Hindu, Islamic, etc, the government (at least when functioning properly) sees them all as the same: corporate assemblies that join together for a religious cause. The same could be done if we go back to make marriage or the right to personally assemble a natural law issue and not one that has to be defined and determined by civil government either locally or nationally.
If you have a moment read the "taking marriage private article" I posted in one of the recent forums. Many historians agree with this as the answer. Furthermore, the 3rd largest political party in America supports this idea as well. It has gained attention as well by advocates like Glen Beck on Fox News and even John Stossel as well of Fox News.
I know I've written a lot here but in a short summary it means this: The right approach is to root marriage in the 1st amendment. But if it is rooted in the 1st amendment because it is a natural right then the government cannot create positive laws for that. It is something that people are born with and thus the government should act to defend the right to assemble but not define what the assembly should be called. We protect the right of all religions to peacefully meet but we as a government do not tell them what they must call their religion. Likewise, there is a degree to where government should be involved in the sphere of personal unions, but the degree should not be based upon positive law but upon natural law and thus the right must be to protect their right to assemble civilly and without criminal violations, just like people in religions can assemble civilly so long as it is without force. The personal unions or the private religions can define the personal union however they see fit by their conscience. As far the government is concerned it could be called UMFIZIPAKAKI for all they care or it could be called a marriage or whatever.
When I get back in front of my notes I'll email to you the massive book that covers so much of marriage history not just in our country but in other countries for hundreds of years. I think you'll love to read it. With your knowledge and passion to make this subject a legal issue I think you'll love this work. It is not a light read but with your perspicacity you'll be right at home with it.
Dr. Allen
