Why Not Separate Marriage and State? ZOT! And ZOT Again!

National Review ^ | 3/29/13 | John Fund

[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 As recently as 1989, voters in avant-garde San Francisco repealed a law that had established only domestic partnerships.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.

[trisham]

I hear you.

[griswold3]

Marriage is a sacrament, a gift from God.
As far as the state recognizing the ‘contract’, I do believe it should be put in writing just like a business. If you understand what you’re getting into, you’re more likely to be serious. It lessens the emotional toll, saves so much time in the courts,and a lot of taxpayer dollars.

[OneWingedShark]

You're certainly correct in that the federal government shouldn't be involved in marriage (the 10th amendment makes this clear) because the States never delegated that power to it. 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 [and that's debatable]:

rite

1. a formal or ceremonial act or procedure prescribed or customary in religious or other solemn use: rites of baptism; sacrificial rites.
2. a particular form or system of religious or other ceremonial practice: the Roman rite.
3. (often initial capital letter) one of the historical versions of the Eucharistic service: the Anglican Rite.
4. (often initial capital letter) liturgy.
5. (sometimes initial capital letter) Eastern Church, Western Church. a division or differentiation of churches according to liturgy.

right

18. a just claim or title, whether legal, prescriptive, or moral: You have a right to say what you please.
19. Sometimes, rights. that which is due to anyone by just claim, legal guarantees, moral principles, etc.: women's rights; Freedom of speech is a right of all Americans.
20. adherence or obedience to moral and legal principles and authority.
21. that which is morally, legally, or ethically proper: to know right from wrong.
22. a moral, ethical, or legal principle considered as an underlying cause of truth, justice, morality, or ethics.

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:

(Gen 24:61-67)
Then Rebekah and her maids rose up, mounted the camels, and followed the man; thus the servant took Rebekah, and went his way.

Now Isaac had come from Beer-lahai-roi, and was settled in the Negeb. Isaac went out in the evening to walk in the field; and looking up, he saw camels coming.

And Rebekah looked up, and when she saw Isaac, she slipped quickly from the camel, and said to the servant, “Who is the man over there, walking in the field to meet us?”

The servant said, “It is my master.”

So she took her veil and covered herself. And the servant told Isaac all the things that he had done. Then Isaac brought her into his mother Sarah’s tent. He took Rebekah, and she became his wife; and he loved her. So Isaac was comforted after his mother’s death.

Pretty light on ceremony there… plus the portions immediately prior indicate much more that it was more a social arrangement than any sort of religious rite.

[Responsibility2nd]

I’ve been arguing for years now that the govt no longer belongs in the marriage business. This positioned managed to upset a few.

____________________________________

Count me as one who is upset by your argument.

I’m sure you’ll agree that the government used to have a valid place in the marriage business. As marriage and The State functioned in harmony for 200 years and as a result; America was a healthy growing society.

So what changed Gene? Why now do you believe tbe “no longer belongs in the marriage business”?

[wagglebee]

Conservatives and libertarians NEVER had much in common other than a belief in the 2nd Amendment and a dislike of taxes.

[ctdonath2]

The state has an interest in hetero marriage as being by far the best institution for procreation, insofar as a pool of healthy well-adjusted citizens and taxpayers is maintained and grown. Homo marriage does not facilitate this, the only contribution thereto being sporadic adoption (which is an attempt to make better a broken situation). Hence the carrot-and-stick legislation encouraging hetero marriage, denying those benefits (and related penalties!) to couples utterly incapable of procreation.

(BTW: there’s a difference between “the plumbing is there but damaged/unused” vs “non-sequitur”.)

[Gene Eric]

My issue is the reliance on govt for determining the morality society should live by.

I don’t understand the fear of leaving marriage to the domain of faith/religion. The govt has become the arbiter of marriage and that’s heresy in my opinion.

[Oliviaforever]

“But if parents teach their children that two men or women cannot be married in the eyes of God, isn’t that likely to carry more weight than what two people in any relationship call themselves? “

But then the kids go off to college and in college the ideas of homosexuality and gay marriage are forced upon them by the professors and the liberal students.

[Orangedog]

Do conservatives and libertarians have less and less in common as time goes on, or were their actual beliefs less discernible in past years?

libertarians hold up a mirror that is very uncomfortable for conservatives to look into. Mostly I think some of them are upset when it is pointed out that all the talk they had for a long time about getting government out of our lives and within the confines of the constitution was nothing more than lies that they keep telling themselves.

[Ohioan]

That’s what happens when you let the government intrude into (and inevitably mess up) a societal institution.

But Government at the State--certainly not Federal--level has a quite clear role, here. It is not the same role as that of Religion.

The role of religion goes to the spiritual sanctification of the union. The role of the State goes to such things as rights of inheritance; rights to civil protection for the privacy & the aspects of a marriage that relate to a certain level of legal autonomy.

In the one case, are considerations of all things that pertain to the spirit; in the other, to all things which relate to the social & economic order. They overlap; but they are not coextensive.

William Flax

[griswold3]

I agree with Gene about the government losing moral authority to manage marriage.
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.
As I have quoted Tom Wolfe, ‘We lost this country when the 10 Commandments were removed from the town square.’ Without such agreed upon basic laws, anything goes now.

[Ransomed]

They would never give it up at this point. The state needs a way to manipulate the culture, conditioning people to rely on the state to define marriage for them allows that. The homosexualists need a way to punish those faiths who are never going to buy into it, so they need the state involved. What’s probably going to happen is that those faiths that don’t take their marching orders from the state will stop acting on the state’s behalf civilly, and just take the punishment for not going along.

Pope Leo XIII warned about the dangers of state involvement 130 years ago, in the context of divorce and remarriage. He was obviously a well known raging libertarian atheist who only wanted to advance the homosexual agenda. It’s the only thing that makes sense.

Freegards

[Ted Grant]

If marriage is exclusively a religious feature, how would non-religious people that aren’t a member of a church get married, considering the government-sanctioned course wouldn’t exist.

[Coronal]

That is the way of the world, always has been and always will be. Parents raise their children as best they can, teach them right and wrong. But they will encounter others who hold different beliefs all throughout their lives. They will change their views on some things, hold to what they were taught on others. It’s ultimately a question of how much faith one has in the raising of their children.

[OneWingedShark]

Liberals and those who argue against marriage in our laws and in our courts are the ones to blame.

The big problem in allowing the courts to have a say in marriage is that this cedes to the government the ability to define marriage — 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. (i.e. like the Constitution only mattering when it is beneficial but ignored when it is cumbersome or would prevent things that are now done by tradition [like asserting the interstate commerce clause allows the regulation of intrastate commerce [and non-commerce] to support the War on Drugs].)

[dead]

Why Not Separate Marriage and State?

I've been asking that for years.

Marriage is a religious institution. There is no role for the Federal Government.

Defend the 10th amendment.

[trisham]

Unfortunately, many continue to believe that conservatives and libertarians do have much in common, and it’s not healthy for us.

[Responsibility2nd]

Thank you so much for letting us conservatives know what is wrong with us.

So tell me. What else are conservatives doing wrong? What else are we stupid at?

Never mind the fact this is a conservative site - just go ahead and list all the stupid stuff those conservaties are doing wrong.

Thanks again.

[trisham]

I don’t agree.

[Gene Eric]

Well, it’s no longer a Constitutional govt that properly recognizes the found morality through which it was created.

Right now, the govt process is heaping pile of dung that requires a legitimate reset. I’m doubtful, however, it will ever shrink to the levels I’d prefer.