Posted on 06/04/2014 10:19:50 AM PDT by Iced Tea Party
Cultural civil war can be avoided by getting government out of marriage
There is no question that the media, political, and cultural push for gay marriage has made impressive gains. As recently as 1989, voters in avant-garde San Francisco repealed a law that had established only domestic partnerships.
But judging by the questions posed by Supreme Court justices this week in oral arguments for two gay-marriage cases, most observers do not expect sweeping rulings that would settle the issue and avoid protracted political combat. A total of 41 states currently do not allow gay marriage, and most of those laws are likely to remain in place for some time. Even should the Court declare unconstitutional the Defense of Marriage Act, which defines marriage as between a man and a woman for federal purposes, we can expect many pitched battles in Congress. The word “spouse” appears in federal laws and regulations a total of 1,138 times, and many of those references would have to be untangled by Congress absent DOMA.
No wonder Wisconsin’s GOP governor Scott Walker sees public desire for a Third Way. On Meet the Press this month he remarked on how many young people have asked him why the debate is over whether the definition of marriage should be expanded. They think the question is rather “why the government is sanctioning it in the first place.” The alterative would be to “not have the government sanction marriage period, and leave that up to the churches and the synagogues and others to define that.”
Governor Walker made clear these thoughts weren’t “anything I’m advocating for,” but he gave voice to many people who don’t think the gay-marriage debate should tear the country apart in a battle over who controls the culture and wins the government’s seal of approval. Gay-marriage proponents argue that their struggle is the civil-rights issue of our time, although many gays privately question that idea. Opponents who bear no animus toward gays lament that ancient traditions are being swept aside before the evidence is in on how gay marriage would affect the culture.
Both sides operate from the shaky premise that government must be the arbiter of this dispute. Columnist Andrew Sullivan, a crusader for gay marriage, has written that “marriage is a formal, public institution that only the government can grant.” But that’s not so. Marriage predates government. Marriage scholar Lawrence Stone has noted that in the Middle Ages it was “treated as a private contract between two families . . . For those without property, it was a private contract between two individuals enforced by the community sense of what was right.” Indeed, marriage wasn’t even regulated by law in Britain until the Marriage Acts of 1754 and 1835. Common-law unions in early America were long recognized before each state imposed a one-size-fits-all set of marriage laws.
The Founding Fathers avoided creating government-approved religions so as to avoid Europe’s history of church-based wars. Depoliticizing religion has mostly proven to be a good template for defusing conflict by keeping it largely in the private sphere.
Turning marriage into fundamentally a private right wouldn’t be an easy task. Courts and government would still be called on to recognize and enforce contracts that a couple would enter into, and clearly some contracts — such as in a slave-master relationship — would be invalid. But instead of fighting over which marriages gain its approval, government would end the business of making distinctions for the purpose of social engineering based on whether someone was married. A flatter tax code would go a long way toward ending marriage penalties or bonuses. We would need a more sensible system of legal immigration so that fewer people would enter the country solely on the basis of spousal rights.
The current debate pits those demanding “marriage equality” against supporters of “traditional marriage.” But many Americans believe it would be better if we left matters to individuals and religious bodies. The cherished principle of separating church and state should be extended as much as possible into separating marriage and state. Ron Paul won many cheers during his 2012 presidential campaign when he declared, “I’d like to see all governments out of the marriage question. I don’t think it’s a state decision. I think it’s a religious function. I am supportive of all voluntary associations and people can call it whatever they want.”
Supporters of traditional marriage know the political winds are blowing against them. A new Fox News poll finds 49 percent of voters favoring gay marriage, up from just 32 percent a decade ago. And among self-described conservatives under 35, Fox found support for gay marriage is now at 44 percent. Even if the Supreme Court leaves the battle for gay marriage to trench warfare in the states, the balance of power is shifting. Rush Limbaugh, a powerful social conservative, told his listeners this week: “I don’t care what this court does with this particular ruling. . . . I think the inertia is clearly moving in the direction that there is going to be gay marriage at some point nationwide.”
But a majority of Americans still believe the issue of gay marriage should be settled by the states and not with Roe v. Wade–style central planning. It might still be possible to assemble a coalition of people who want to avoid a civil war over the culture and who favor getting government out of the business of marriage.
— John Fund is national-affairs columnist for NRO.
You’re welcome. Anytime.
Opinions vary.
We are no longer governed by those constrained by the Constitution let alone any Natural Law or even the 10 Commandments. We are now subject to the whims of populism. There is nothing more revered to those who govern then their own selves and ideology.
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I get this. I do.
But because this is so, you wanna argue that we should “follow along” and surrender our values and beliefs on tradional marriage to those bastards who are not governed by the Constitution, Natural Law or the 10 Commandments?
Not me. Hell No.
I am well aware that the 14th Amendment has long been a thorn in the sides of libertarians, but this very much DOES make it a federal issue.
Moreover, it is quite arguable if the states have the legitimate authority to regulate marriage -- you see, marriage is not a right, but a rite
What exactly DO you think the states have a right to regulate?
If you want to cite marriage in America as having Judeo-Christian roots and assert [implicitly or explicitly] the import of the ceremony then you have to explain the marriage of Isaac & Rebekah
You mean a marriage that occurred BEFORE God gave Moses the Law?
even a constitutional amendment defining marriage is dangerous this way: because once it is accepted as legitimate then it may be altered the same way it was created and, having ceded the power to define it, you no longer have a valid objection to the state defining it.
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I get that argument. I do. But its wrong. Here’s why.
History proves that for over 200 years the government had control and power over marriage. They defined it. And yet it worked. America and our families grew and prospered.
Until LBJ came along. So. Would you argue that our Constitution and our laws for over 200 years were wrong in the first place? That LBJ proved it doesn’t work?
I wouldn’t.
>> surrender our values and beliefs on traditional marriage
Actually, the motive is just the opposite. The goal is to change the ground rules by eliminating the third party enforcement of govt.
I actually have no problem with this — a sort of sucks to be you
can be applied. (Parallel idea: you don't get retirement packages from companies you don't work for — you don't get them at all if you're unemployed — does this mean that retirement package qualifications are unfair? // Likewise, if marriage is a religious institution then by rejecting all religion you reject also all benefits thereof.)
LBJ was a blight upon this country.
Well, it’s no longer a Constitutional govt that properly recognizes the found morality through which it was created.
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Yeppers. I can agree with that. But how? How will we ever return to a Constitional (Moral) foundation if we can’t even agree on basic fundamental values like marriage?
It is totalitarian states like the USSR that "creates" and lists the rights of individuals. That is why the first Ten Amendments are not a "bill of rights" but an expressed sampling of God-given rights already there. That is why the words in those amendments say things like "Congress shall not abridge" or "the right shall not be violated".
In totalitarian countries, State creates rights, the State then expands its power to enforce, and the State may take away those rights at any time. America is exceptional because it acknowledges the beginning point in the affairs of man as the INDIVIDUAL's God-given (not man-given) unalienable rights.The Constitution is aimed at binding the federal government to ensure it stays within those LIMITED rights and powers DELEGATED by the Constitution via the states and the people.
So, if we already had a totalitarian government that intruded into the most private affairs of citizens, there would be no demand to make it even bigger?
My brain hurts....
I hope he’s rotting in hell. Even B. Hussein Obama isn’t as bad as Johnson.
He’s close. He may overtake him. But LBJ so far is America’s worst president ever.
Agreed.
Absent such a role by the state, in many instances, the stronger person in the marriage will tend to exploit and harm the weaker, especially when the marriage breaks down. In addition, the weakest of all -- children -- are especially vulnerable to mistreatment, abuse, and neglect.
For example, children are especially vulnerable to abuse when they live with their mother and an adult male sexual partner who is not her husband. In most instances, the best outside advocate for that child is a vigilant father and ex-husband who is alert to and ready to intervene if there are indications of harm to his child.
The better route is to preserve traditional marriage as exclusively and uniquely between one man and one woman, while also providing for the courts to determine disputes that arise out of other personal relationships by adults living together. In such cases, the courts should look to what the parties have agreed to and to traditional principles of equity.
Thus gay marriage and other relationships can be defined by the participants with the assurance that the courts will enforce such agreements and resolve disputes. A general domestic partners registry also makes some sense as a way to put such relationships on the public record without the full effect of marriage.
So LBJ signed the first no-fault divorce bill into law? And I imagine he nationalized child support enforcement, subsidizing the divorce industry when his party took over congress...right? I knew LBJ was a son of a bitch, but I didn't know he did all that.
Just because X wasn't abused for Y years doesn't mean that X won't be abused.
Just because Z didn't manifest as a problem for G years doesn't mean it's not a problem.
Some of our problems predate LBJ — the regulation of monies (which is authorized to Congress) is one example, and its apparently unaccountable delegation to the Federal Reserve is one example. (IMO, it would be better to amend the Constitution to [a] remove the power to regulate the Dollar from congress, [b] have a particular amount of gold of a particular purity associated with the Dollar, [c] reiterate b in a different set of units so as to protect the amount from tampering via Congressional control of the weights-and-measures.)
Another item [from the original/unamended constitution, which is still unamended] that has to be stopped is the unlimited incurrance of debt — this could be rectified by amending the constitution to [a] tying the amount of all debt which can be assumed to the amount of gold physically possessed, and [b] denying the validity of any unfunded liability
or imposing a requirement on the states w/o funding it.
Note that these monetary issues didn't crop up for centuries, even though the seeds [powers] were there all along. Likewise is marriage — actually I believe that pushing marriage into the FedGov domain is the worst idea possible: given the indoctrination that federal trumps state [in all matters]
a single loss here is a loss in all 50 states, whereas keeping it in the bounds of the states [if it really is a governmental issue*] keeps it from being corrupted in one fell swoop — or are you going to assert that it won't play out like abortion? If so, why won't it?
* Proposition 8 is an interesting/illustrative case here — the people decided to define marriage in the State's constitution, and yet the amendment has been blocked by federal courts and then the USSC denied the people of that state any standing to see their Constitution so amended despite the states own supreme court certifying the standing of the people.
Fine with me. If five want to form a partnership, it’s okay with me just don’t ask the state to call it marriage.
None of us should be married by the state; marriage, as a sacramental state should be handled by clergy.
Wags, Good to see you are back at Free Republic and back in form.
>> if we can’t even agree on basic fundamental values like marriage?
If by ‘we’ you mean the Country as a whole, I don’t know.
As far a FR goes, I think the moral attitude on abortion and marriage is uniform. How to best achieve the outcome, however, is obviously in dispute.
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