I want to answer two very basic questions. Lets all wish me luck. First I want to define marriage what is marriage anyhow? and I want to explain why the answer to this first question is any business of the civil magistrate. The two matters are wound tightly together, as we shall see.
I have defined marriage before in at least a couple of places.
“A common error among Christians holds that if the sexual act is completed, then the couple are married ‘in God’s sight.’ Many destructive complications occur in contemporary culture because we have adopted the idea that people can be married in God’s sight without being married. It is hard to say where this idea originated, but it has caused a lot of damage . . . Marriage is scripturally defined as a sexual relationship within the boundaries of a covenant commitment that has been formally ratified. The sexual relationship by itself does not constitute marriage” (Her Hand in Marriage, pp. 28-29).
“The first is that you must have an explicit covenant surrounding a sexual relationship. Not everyone who is sexually united is married, and not everyone who has exchanged vows is married. The covenant exists when the two elements are there together: covenant vows surrounding a covenant union” (For a Glory and a Covering, p. 33).
Thus far the assertions. Why do I believe that the two essential elements in a marriage are sexual union (of the sort that could result in pregnancy) and a publicly recognized covenant? To use the language of the philosophers, these are necessary conditions but not sufficient conditions. A necessary condition means that without it you do not have the thing in question. A sufficient condition means that with it you will have the thing in question, of necessity. Thus the presence of oxygen is a necessary condition for a blazing fire but not a sufficient condition.
You cannot have a marriage without old school heterosexual copulation and you cannot have a marriage without a covenant. Nevertheless you can have a covenant without a marriage and you can have sexual intercourse without a marriage.
If a covenant alone can constitute a marriage, then homosexual marriages are marriages, not mirages. If sexual intercourse alone can constitute a marriage, then a man who has visited every woman in five brothels is married to all of them, and all of them are married to every john who has ever been with them which is absurd. Yet Paul acknowledges that the one flesh union occurs in an encounter with a prostitute, which is why doing so is such a significant sin. “Or do you not know that he who is joined to a prostitute becomes one body with her? For, as it is written, “The two will become one flesh”” (1 Cor. 6:16, ESV). But those Corinthian men who were still visiting temple prostitutes are rebuked and told to stop it and walk away. They are not told that they are actually married to all the women they have been with. They are part of a one flesh union with these women, but are not married to them. They had no business partaking of a one flesh union without marriage, but it has happened now, and the solution is repent and flee. Run away. Two verses later Paul tells these men precisely what to do. Flee fornication (1 Cor. 6:18).
But if sexual union by itself creates a marriage in Gods sight, then a man could continue to visit the prostitute to whom he is now married. A man could continue to maintain and visit his mistress and so on. This is not what repentance looks like, and because repentance looks like breaking it off entirely, we see that sexual union by itself does not constitute a marriage.
So what is my basis for saying that a covenant is also necessary? The answer is simple the Bible teaches that a mans wife is his wife by covenant. “But you say, “Why does he not?” Because the Lord was witness between you and the wife of your youth, to whom you have been faithless, though she is your companion and your wife by covenant” (Mal. 2:14, ESV). This is speaking of men who were being treacherous to the terms of that covenant, but it speaks of the marriage relationship as having been established by covenant. The same thing is true of a treacherous wife. “Which forsaketh the guide of her youth, And forgetteth the covenant of her God” (Prov. 2:17). Marriages are formed by covenant, and they are a covenant that surrounds an inaugural act of heterosexual intercourse, to be followed by many more such acts.
If a personal covenant between persons sans sex were sufficient to establish a marriage, then David and Jonathan were married (1 Sam. 18:3). If sexual activity of any description between two persons is sufficient to establish a marriage, then this world would be a literal pandemonium of marital relations. But Paul tells men to flee the prostitutes, which ought not to be understood as fleeing your wives.
Now a covenant is a solemn bond and it is publicly enforceable. Covenants have sanctions. When Billy is whispering to Suzy in the back seat of a car that he will love her forever and a day, that is not a covenant. That is what Suzys mother described, later that same evening, as a sweet-talking lie. A covenant is made in the public eye, and the surrounding society stands to witness to the terms of the covenant and to ensure that it will be kept. Different cultures have different customs that establish a covenant bond God once made a covenant with Abraham by cutting animals in two and passing between the pieces. We dont have to do that at our weddings. The particular form the marital covenant takes does not matter what matters is that the society within which the covenant is being established recognizes the speech/act in question (I now announce that you are husband and wife) and recognizes any attendant symbols (with this ring I thee wed). Other societies can accomplish the same reality with a different set of words and symbols. That is fine. What has to be constant, however, is the fact of sexual intercourse and the mutual and public obligation of both parties to each other.
What about Adam and Eve? Were they married by this definition? Yes, they became one flesh (Gen. 2:21), and their union was recognized by the whole world. In fact, at their wedding, the entire human race was present. Moreover, their union was the paradigmatic union for all subsequent marriages, meaning their union had to be a marriage as well (Gen. 2:24; Matt. 19:5).
So then, what business does the magistrate have in all of this? There are three aspects to this answer. The first concerns what ought to be when a society is well-ordered in the sight of God. The second concerns what the church ought to do when they are ministering in a culture that is not at all well ordered. And the third has to do with the current propensity of many Christians to give up the good fight far too early.
First, one of the most obvious things about sexual intercourse is that, while it is much more than just an economic transaction, it is also at least that an economic transaction. Feminists have made cheap points off of this reality by describing marriage as glorified prostitution. Actually, the comparison runs the other way prostitution is a gross parody of marriage.
Marriage is a sublime and wonderful thing, but there are monetary realities necessarily involved in it. Urgent young men with screaming hormones and medium-sized paper route need to be told that a woman is expensive, son. We even get our word economy from the Greek word for household.
Sex necessarily involves issues of property and custody of children, and inheritance, and houses, and cars, and so on. These things cannot be separated from the way God designed sex to function. Marriage therefore needs to be recognized by the magistrate so that everybody beforehand has a good grasp of how these things are going to be adjudicated. We need to agree on the rules beforehand. We need to understand what the weights and measures actually are. I would rather abandon the language of marriage licenses as though the state has the authority to tell John and Mary, an ordinary couple, whether or not they can get married. But we need something like marriage registrations, and the magistrate has the authority to refuse to receive or file them under certain circumstances (non licet), as when a brother and sister try to file one, or two homosexuals, or a man and his llama.
What does and does not constitute a well-thought-out sexual union is very much in the interest of the civil magistrate because the magistrate will have to sort out the ones that were not well-thought-out also. Should a one-night-stand biological father have to pay child support? How about if she lied to him and said that her tubes had been tied? How about if they agreed beforehand that she would have an abortion if she needed to, and then she changed her mind? Should a husband have the right to veto an abortion, contra Roe v. Wade? Whenever men and women have sex, they are betting with real money. Disputes will inevitably arise. Since the magistrate is authorized by God to deal with all property issues (Rom. 13:4,9), the magistrate therefore has a solemn obligation before God to know what a real marriage is. The magistrate is the one, the only one, who can effectively police the property-related boundaries of a sexual union.
The second thing is that of course the church should supply whatever accountability they can when the culture has abandoned its appointed role. But this will always be a makeshift affair. Suppose you have a society where slaves are not legally permitted to marry, but a Christian man and woman who are slaves want to marry. It is appropriate for them to exchange vows in the eyes of the church, and for the church to bless their sexual union. But if that man later abandons his wife and children, and runs away, and the most the church can do is excommunicate him, there are still injustices that need to be rectified and which only the magistrate is authorized to fully rectify. When men and women wrong each other with marriage as the instrument of their sin, there are certain things that cannot be put right unless physical coercion is involved. The church does not have, and ought not to have, that kind of power. The magistrate does, and under such circumstances ought to wield it. And when the magistrate acts in coercion, we should all want their standard to be biblical. Otherwise, everybody is hosed.
This means that when the church sets up covenant marriages, over against our current same sex parodies, as we ought to be doing, we may only do this as a testimony against the magistrate abandoning his God-given function, and we should do this as a way of calling the magistrate back to his duties. If the church acquiesces in the idea that marriage is merely a matter of private, religious conviction, then this only means that the church has joined the magistrate in the general dereliction.
And last I will be brief with this one to have as many Christians as we have in this country throwing up their hands in despair, saying that maybe the definition of marriage is not a concern of the magistrate anyway, is a testimony to our loser eschatology. Loser eschatology is a particular kind of future orientation that pampered Christians have developed for themselves but the only thing that ever gets fulfilled is its own prophecies, tailor-made for all Christians who have no stomach for a fight. But nothing biblical gets fulfilled by them.