Kmiec: Time to get government out of the marriage business

posted at 10:12 am on May 28, 2009 by Ed Morrissey
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I don’t agree with Douglas Kmiec often, but this may be the exception … maybe.  With all of the various legal and legislative challenges to the definition of marriage in states across the nation, Kmiec tells Catholic News Agency that government should restrict itself to enforcing contract law and leave the question of marriage to the churches.  Robert George, a highly respected Constitutional scholar and fellow Catholic, vehemently disagrees (via The Corner):

Doug Kmiec, a prominent Catholic who backed Barack Obama’s presidential bid, has endorsed replacing marriage with a neutral “civil license,” a proposal law professor Robert P. George called a “terrible idea” that would make the government neglect a vital social institution.

Speaking to CNSNews.com, Pepperdine University law professor Doug Kmiec said that although his solution to disputes over the definition of marriage might be “awkward,” it would “untie the state from this problem” by creating a new terminology that would apply to everyone, homosexual or not. “Call it a ‘civil license’,” he said.

“The net effect of that, would be to turn over–quite appropriately, it seems to me, the concept of marriage to churches and a church understanding,” he said.

George counters:

“It’s a pre-political institution,” he said. “It exists even apart from religion, even apart from polities. It’s the coming together of a husband and wife, creating the institution of family in which children are nurtured.”

“The family is the original and best Department of Health, Education and Welfare,” he continued, saying that governments, economies and legal systems all rely on the family to produce “basically honest, decent law abiding people of goodwill – citizens – who can take their rightful place in society.”

“Family is built on marriage, and government–the state–has a profound interest in the integrity and well-being of marriage, and to write it off as if it were a purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake,” George told CNSNews.com.

“I don’t know where Professor Kmiec is getting his idea, but it’s a very, very bad one.”

Normally in any debate between Kmiec and George, I’d rely on the latter, especially on matters of faith.  However, in this case, Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago.  The advent of no-fault divorce, in which one party can abrogate the marriage contract without penalty or consideration of the other party, has completely destroyed the notion that the government plays a role in protecting “integrity and well-being of the family.”  In fact, I’d argue that serial marriers of the kind seen in Hollywood (or in Washington DC) do more to undermine marriage than single-gender unions would ever do.

The state could get out of the marriage business entirely, and have its citizens enter into partnership contracts instead.  That might have the salutary effect of putting mechanisms into place for dissolutions that would keep divorces from dragging on through the courts, but also give the state more ability to enforce the terms of the contract than government is willing to do with marriages that lack pre-nuptial agreements, especially on penalties for abrogation.  That would also give the courts an opening to finally get rid of “palimony”, that noxious avenue where the courts have to make determinations whether contractual relations exist between people who neither execute a contract or take wedding vows.

Churches could then recognize marriage along their own precepts.  Catholics who want to get married in a Catholic church would still have to be a heterosexual couple above the age of consent, at least one of whom is Catholic, without issues of consanguinuity, but would have to also sign a partnership contract for the civil recognition of the relationship.  It would be little different than the current requirement of getting a marriage license now, except that the agreement would have more detail on the partnership than the current marriage license provides, although even that could be more or less boilerplate for many couples.

Would the public accept the withdrawal of government from the blessing of marriages?  Not at first, certainly, but the public also won’t back a revocation of no-fault divorce, either, which strongly implies that a government imposed “integrity of marriages” solution won’t be popular at all.  I’d expect this to be the eventual solution to the definition-of-marriage argument.

Update: Green Room contributor Pundette disagrees with me.  Be sure to read why.

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