An Ancient Jewish Take on the Role of Government - Part I, Marriage

This is the first of 5 commentary pieces that will explore ancient Jewish wisdom in a modern context. Please check back each Thursday for the next installment.

This article was mostly taken from my recently released book, Uncommon Sense, which offers solutions to modern political conundrums based on ancient Jewish wisdom. This article is based on the chapter that discusses, “What is the proper scope of government – how much of society should it control?”

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The foundational idea expressed in that chapter is that government should control civil but not moral and ethical matters.

Examples of civil issues are road building and protecting people from violent and white collar crime. Such activities as sponsoring a museum, a university liberal arts program, or a stop smoking and eat healthy campaign have to do with morality - the conviction that they enrich and better peoples’ lives. Government should be involved in the first category, but not the second.

I would like to offer a modern explanation for this reasoning of the ancients.

The government must control civil matters because, by definition, private individuals cannot. Many can pay for their own doctor’s visits or auto repairs, but launching a program to weed out incompetent or dishonest physicians and repairmen requires the funds and authority that private individuals do not have. In the same vein, private citizens are incapable of organizing a police force and army, building roads, discerning sophisticated financial scams, and so forth. Very obviously, these civil matters must be handled by government.

Assigning to government the role of promoting ethics is very different. If government controls morality, it must first determine what constitutes morality. To illustrate, funding a museum in the name of the public good requires a grave moral judgment - what exactly constitutes “public good,” and which museums satisfy that objective and therefore deserve government support.

Many politicians are fine and sagacious people. Elections, however, are often won by media advertising and good looks, combined with fundraising and campaigning skills. These qualities have little to do with the extremely difficult task of determining what the country’s moral values should be. Selecting a version of morality by a majority vote of the public, by majority religion, or by the courts would also be improper. This would trample upon the freedom of religion, the freedom to abide by the morality or immorality of one’s preference so long as others are not harmed by the choice. This freedom is a central tenet of democracy. For these and other reasons mentioned in my book, “morality by government” is generally a bad idea.

Based on this core idea, my book goes on to discuss five sample areas that should be controlled by government and five that should not. Marriage is in the “should not be controlled by government” category.

The U.S.’s Judeo-Christian tradition views marriage as a (hopefully) lifelong monogamous heterosexual union that is consecrated in a religious ceremony. Obviously, many modern couples reject this long-established paradigm. Living together and even raising children out of wedlock is commonplace, and the acceptance of gay marriage is on the rise.

As the U.S. separates church and state, the government cannot dictate what constitutes a religious marriage. What about dealing with the matter from a secular and legal perspective? Should the government be determining (as it now does) when a relationship is deemed a legal marriage?

At its core, marriage is a matter of personal choice rather than a civic issue. As such, in the system of thinking that is being proposed, government should be totally uninvolved in this arena. Instead, individuals should be free to marry based on their personal religion, moral code, or other considerations. One’s personal marriage arrangements should be no more the government’s concern than one’s religious affiliation. The government plays no role in one’s religious choices, which therefore have no legal status whatsoever. In the same vein, one’s marriage should be disassociated from government and have no legal status as well.

A welcome byproduct of this approach would be saving the U.S. from the rancorous debate over whether to sanction gay marriage. In this system, no marriages would have any status in law.

Some legalities such as alimony claims are now determined by whether or not a couple was married. In the system advocated herein, this protection would have to be secured through a mutually agreed civil alimony agreement at the outset of the relationship, and when a couple separates, the courts might have to resolve disputes over shared wealth and shared children, just as they now do. My book also discusses some of the tax ramifications of getting government out of the “marriage business,” but those issues are too detailed for an article of this type.

Speaking personally and as a rabbi, I feel that the institution of marriage should have a traditional religious context. I furthermore believe that, as a rule, traditional marriages work best and last longest. However, as far as the law of the land, all individuals should have the right to live, sans government interference, with whomever they please and in a union that is informal, civil, or religious.

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