The State and marriage: How can God hate divorce yet allow it?
Atty. Jeremiah Belgica
Last of three parts
HAVING the State regulate marriage is like having the Church regulate barangay elections. This does not mean that the State has totally no participation in the preservation and protection of marriage but nonetheless, it must be made clear that marriage is not a State creation.
Just as the Church institution is an integral participant and influence in any electoral or political exercise in any Philippine community, its participation is limited to just that. It is only "a participant" and not the author or the manager of any political exercise or institution.
The relationship of the State to institutions like marriage has the same limited nature. The State may and should recognize the creation and existence of marriage, although it did not create it.
Now, this principle of the limited function of government is an important point for us who seek to continue living in a free society to understand and advocate for. The State government has no absolute power to create anything under the sun because of its limited nature. It cannot create man, animals, trees, land, water and other natural resources but can only, in fact, recognize, register, develop and cultivate these things. The act of recognition and registration is the work of bureaucracy, and the development and cultivation of it is the work of the economy supported by legislation. It is important to note that the State and law did not create these things, much less have original ownership over the same, especially over man.
This limitation in function and power of government may also be seen in private transactions and obligations. Every freshman law student who has taken up the study of the law on Obligations and Contracts would tell you that there are five sources of obligation, and they are the following: law, contract, quasi-contract, delict (crime) and quasi-delict.
Without going through an in-depth legal discussion on the sources of obligation, it is apparent that law (created by Congress/State) is only one of the sources or "creators" of what citizens are obliged to do, not to do, or to give or not to give something to another. The other four mentioned sources or "creators" of obligations are privately initiated without government participation, especially in contracts. This means that an obligation is created by a private agreement or initiative, and society protects that created obligation by law and government for enforcement.
This is much more applicable in the marriage institution. As mentioned in the previous article, marriage is a divine covenant that the Family Code calls a "special contract" that the government needs to protect.
Today, the States and governments of the world have overstepped the limits by giving themselves the power to officiate and define marriage. Today in the Philippines, we have civil officials (mayors and justices) officiating weddings, which traditionally was not the case as weddings were normally understood to be officiated by priests or ministers who represent the Church as a religious institution.
Also, people from religious organizations and ministers are not allowed to officiate weddings without licenses and allowance from the government today. I know firsthand of incidences of established pastors and ministers who have spent 20 to 30 years in service having difficulty renewing their licenses to officiate weddings because of excessive bureaucratic requirements. Government now rationalizes the tight regulation by saying that it is merely ensuring that fake and nuisance ministers are not given the right to officiate. However, the effect is the opposite because those who are legitimate are the ones prevented, while the fraudulent ones are able to fake their way to a government license.
Finally, allowing the government excessive intrusion over the marital institution would also mean that we are giving it the power and right to "define," "re-define" and "terminate" marriage. The talk on divorce is just one thing in the Philippines, but the re-definition of marriage, which allows same-sex in their definition, is the greater situation in the global community today. This re-definition of marriage is surely going to be an issue to be faced by our children and future Filipinos.
I have mentioned in the first part of this series that the talk of whether to allow divorce in the Philippines is a bit late, as we have already recognized it in a limited way for our Muslim brothers. The basis of that is their religious belief as concretized in the Sharia law. If government allows Sharia law followers on the basis of their religion and culture, then government must likewise be consistent in allowing or prohibiting others based on their religious beliefs.
My point is that if an individual chooses to be married, government must only step in to recognize what the churches or religious organizations have established. If termination, annulment or divorce has been allowed by those religious institutions for that couple or individual, then the State must merely register or recognize it. However, a person may not terminate their marriage outside the religious institution or church where they were wedded because to seek divorce elsewhere would result in a conflict and violate the separation of Church and State. This will challenge everyone who wishes to be married under their religious organization to really consider if they subscribe to the teachings and beliefs of their church on the sanctity of marriage even before they ask for the blessing and officiation for their marriage. In my opinion, couples would really be forced to introspect on their basic belief and commitment to God and each other before committing themselves to the lifelong bond of marriage.
For those who are less religious and who do not have any religious church or affiliation, entering a civil union or legal partnership for purposes of their properties and civil life will always be available. They can choose to bind themselves to each other in perpetuity and with all the legal benefits of couples who have been "religiously married" without calling it marriage since marriage per se is of religious and divine (not secular) origin and creation. Should they choose to enter a marriage vow, then they should still be allowed.
Respecting the independence of the marital institution from State intervention is important for the preservation of the family institution, and establishing a fair system for the treatment of marriage and divorce is central to this.
In sum, love and marriage are the two most permanent things in life and history. Marriage is intended for life, but love of God is for eternity.
Lawyer Jeremiah B. Belgica, REB, EnP, was the first director general of the Anti-Red Tape Authority (ARTA). He is a founder and co-managing partner of Belgica Aranas Baldueza de la Cruz and Associates. He is also a pastor and a sought-after speaker for Christian biblical law and policy.