Latter Day Federalists

The Weekly Standard ^ | March 29, 2004 | Maggie Gallagher

[GoLightly]

Among the nearly 30 wives of the Mormon Prophet Heber Chase Kimball was a 6 year old girl.

That said, I'd like traditional churches to begin to consider refusing to fill out anything for the government. The couple would be married in the traditional sense, but the state would lose having any say about it.

[ThJ1800]

Why is monogamy both the legal and social norm in America? For one reason only: Between 1862 and 1887, Congress repeatedly passed laws designed to stamp out polygamy in U.S. territory.

I suppose if one considers the states as territories, rather than sovereign entities, one has no problem with Congress stampimg their will on the states. Rasing the issue of marriage to a constitutional issue concerns me, since I do not believe this is an issue the federal government should have jurisdiction over. However, there is an activist Supreme Court, who finds whatever justidication they wish for any act, to be considered. Would such a court respect the decisions of states' to ban same-sex marriages?

[GoLightly]

Rosie O & her new "spouse" live in Florida. They flew into California to get married. After they get back back home to Florida, based on the way the law is currently written, Florida will *have* to recognize their marriage.

[Destro]

The problem is that the State instead of sanctioning marriage by clergy of all accepted faiths decided to get in the marriage business and marry people via justices of the peace. Is a marriage performed by the same office that hands out parking tickets a valid marriage? The marriage of people by municipale authorities is a recent creation.

We should define what marriage is by law (The Supreme in Reynolds Vs USA - the Mormon case - has already given Congress the power to define marriage) then grant licenses for marriage but let the religious institution do the marrying.

The Supreme Court decision mentioned above allows congress to regulate religion in such a way.

When the state allowed traffic clerks to marry people it got into the religion business and set up the secualr state as a religon.

No one has ever viewed marriage in such a way. When Bush talks about constitutional ammendment for marriage he is talking about civil marriage. Marriage should never be performed by the state it should only regulate it.

End all civil marriages. The mayor or local dog catcher should have no ability to join anyone in matrimony-period!

[RWR8189]

I suppose if one considers the states as territories, rather than sovereign entities, one has no problem with Congress stampimg their will on the states.

It was unclear to me if the author was referring to "territories" or states.

Because if it was territories, then Congress has sole juridiction over them.

[ThJ1800]

After they get back back home to Florida, based on the way the law is currently written, Florida will *have* to recognize their marriage.

What law? Florida's law? If state law does not recognize same-sex marriages, I am under the impression the state is not required to recognize such a marriage, per the Defense of Marriage Act. I could be wrong about this.

[ThJ1800]

It was unclear to me if the author was referring to "territories" or states.

I was under the impression she was comparing Congress' power over the territories in the case of polygamy to the current siutation of states in the case of same-sex marriage.

[GoLightly]

It's a fair faith thing. Territories give up a portion of state sovernty (sp) to become a state, a member of the whole & how they deal with differences is spelled out in the Federal Uniform Codes. The feds stuck their noses into marriage ages ago & there is a lot of case-law in all 50 states to show that all 50 have allowed them to do it. Defense of marriage may not be sufficient to exempt Florida from recognizing the California marriage. IMO, it's feel good legislation to quiet the concerns of the masses.

Gay adoption is big cause of Rosie's. She's adopted some children...

One of the cases the gay rights community is jumping up & down about is a custody case involving a couple of lesbians that split up. One partner had been allowed to adopt the natural child of the other, without forcing the natural mother to give up her parental rights. After they "divorced", the adopting parent sued for enforcement of her parental rights. I think the case crossed state lines. Regardless, the state that made the ruling was Missouri.

Defense of Marriage muddies the water, rather than making it all more clear. The only way to make sure the Supreme court knows which way to go is an amendment to the Constitution.

[LibertarianInExile]

Amen! Preach on, Brother Destro!

Oops...er...

I meant BUMP. :)

[GoLightly]

Not to bring up Prophet Kimball again, but his marriages were not limited to the Utah territory. At least one was in New York. Most of the rest of them were in Illinois & all of those happened well after Illinois became a state.

[GoLightly]

Not to bring up Prophet Kimball again, but his marriages were not limited to the Utah territory. At least one was in New York. Most of the rest of them were in Illinois & all of those happened well after Illinois became a state.

[ThJ1800]

The feds stuck their noses into marriage ages ago & there is a lot of case-law in all 50 states to show that all 50 have allowed them to do it.

However, it is the the perogative of the states to define who may enter the marriage contract, not the perogative of the federal government. Do you have some examples of the case law? I would like to look them up and study them, so I learn a little more about this issue.

Defense of marriage may not be sufficient to exempt Florida from recognizing the California marriage.

But it has never been challenged (to my knowledge), so no one really knows what it may, or may not do.

[GoLightly]

If the clergy did as I said, all of the divorce lawyers in the country would discover religion.

Your idea is good, cept it would be challenged & prolly lose under the first ammendment. Also, keep in mind there are already some gay activist churches. As long as you recognize any kind of licensing right by the state, you'll find yourself right back where we are right now.

[GoLightly]

I don't know any of the case-law, but I know it's there. Some states were allowing marriages of 12, 13 year olds, while others had an older age requirement. After the couples moved to a state that had an older requirement, they were discovering their marriages were no longer being recognized & I'm sure statatory rape laws were getting triggered.

[Destro]

Mormon churches can't marry more than the current couple. Polygamy/bigamy are outlawed by the federal govt and local govts are they not? Utah is no longer a territory - and Mormonisim was founded in upstate New York. So why can the govt regulate the number involved in a marriage but not the sex of the married?

The classic era Athenians were pro homosexual - even considered homosexual relationships better then heterosexual ones - and they were pretty libertarian in their rulings on many issue (not all) but they strictly regulated marriage - even passing penalties on single men. Marriage can be regulated by the state and it can be shown regulated heterosexual marriage and hetero marriage only - is as old as democracy.

Religions can not create institutions that are contrary to the laws of the land. If they could Muslims could marry more then one wife as could Mormons.

So license religous authorities that meet such defenition for tax purposes to perform marriage and never allow city or state or federal officials - office clerks - judges - mayors - to marry people of the any sex.

What's next? The mayor's office can circumcise and baptise children?

[GoLightly]

I don't like state's having the power to license the clergy. The state should get out of the marriage business, though they might wanna create civil union laws to replace their marriage laws.

Marriage remains a rite of faith. Poligimist Mormons currently get around the legal ban via serial divorces. Laws haven't stopped it.

[Destro]

Clergy are already "invested" by the State to perform marriage that the state recognizes. All I am saying is that they should be the only ones with that ability.

[nopardons]

Then what would happen to atheists or couple from two different religions, who can't find a member of the clergy to marry them?

And historically speaking, " THE STATE" has been involved in marriage, from the beginnings of nationhood. Rome was, ancient Israel was,as were most others you'd care to name.

This is far more complex thing, than you're willing to admit.

[GoLightly]

Right, which is how we got where we are. People wanted the marriages performed by their clergy to get recognition by the state. The states set up the rules & as new things came onto the scene (Mormons), they put limits on which marriages they would recognize & at the same time, made some forms illegal. Federal law trumped state law & removed the power over marriage from the clegy in the process. Traditional churches didn't squawk, cuz they weren't affected by it & in fact, most prolly saw it as a good thing.

Throw in some later things, child support enforcement & jurisdiction of "marital property" sitting in a place outside of a state's jurisdiction at the time of a divorce. Family law judges "needed" to have their rulings recognized & enforcable in other states. Federal power over marriage became codified.

It's time for traditional churches to make a stand & to stop recognizing the states power over them on this issue or eventually they will be forced to perform marriages against their faith.