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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The evidence says you are wrong. California civil unions give equal rights to all groups that being married give. So why the fight over prop 8?
Because they want to be able to call themselves married.
If you are against gay marriage, this gives it to them.
broker1 on May 28, 2009 at 11:26 AM
Sure, at a theoretical level, the Prof. may be right. Maybe society would be better off–maybe…
Problem is, constitutional law professors don’t get to decide this–the people do. If Kmiec is taking part in that discussion, so be it. Frankly, though, my concern is the tendency of so many folks to seek change from the top down (i.e., by judicial fiat from SCOTUS) that the hair sticks up on the back of my neck whenever this sort of topic comes up.
After all, States are in the marriage business because people want them to be (and, to a certain extent, this is the result of customary practice, etc.). The last thing we need is a pointy-nosed elitist (who also happens to think we have a pro-life president) telling us how it should be.
cackcon on May 28, 2009 at 11:26 AM
Also, what happens to community property states? Tenancy by the entireties? Joint property? Everything destroyed to tenancy in common?
So far I see a lot of guys saying “Great! My wedding won’t mean a thing anymore! Wonderful idea!” Ladies, what do you think of this move to destroy marriage?
Vanceone on May 28, 2009 at 11:26 AM
Are you suggesting that we have BDSM cops?
If someone is stupid enough to knowingly agree to go into a relationship to get abused should be allowed to be that ignorant.
Further, I don’t see how they couldn’t leave that relationship. They would still be granted their individual rights that the Constitution gives them. They’d have to file for divorce I suppose.
There’s no difference between this and someone that (without a contract) knowingly consents to abuse.
Upstater85 on May 28, 2009 at 11:27 AM
Baahhhh! No, its not a brave new contract view of marriage. The brave new contract view of marriage took place when the government involved itself in the business to begin with in order to prevent black people from marrying white people. Nothing will change, in regards to marriage, other than the wording on the top of the certificate that the state puts its stamp of approval on. That is it. Marriage will still exist as it is in every possible way.
Zetterson on May 28, 2009 at 11:29 AM
and don’t forget, the government being involved in marriage also outlaws poligamy.
That will go away as well.
broker1 on May 28, 2009 at 11:30 AM
And Vanceone, we already have civil unions and nothing like that happens. And you can’t write a practice into a legally binding contract that is illegal. ie battery.
Zetterson on May 28, 2009 at 11:32 AM
They can call themselves married now if they want to.
It is more than just that. They want to force the meme that “homosexuality is normal” down our throats, when it clearly isn’t.
That’s what it’s actually all about.
wildcat84 on May 28, 2009 at 11:32 AM
Major revisions of property law would be inevitable. Consider the ramifications to property law of if there were more than two parties to one of these contracts, too.
Wethal on May 28, 2009 at 11:32 AM
Upstater: This is different. How many people know how to really read a contract?
Let’s say I say, “dear, let’s get our civil contract. Here are the terms… I provide for the family, a home, and 2 weeks in cancun a year. If we have kids, I’ll provide for them too. In exchange, I get to do whatever filthy sex acts I want. I can beat you, sell you into prostitution, etc. If you try to back out, All the property you now own or will acquire during the marriage is mine. ” And the woman is drunk or whatever, thinks it’s a great idea and agrees.
Under a regular marriage system as now, she can file for divorce if it gets too much. Under your new idea, what can the state do? She agreed to it! What can she do? Become penniless? As long as he brings home a paycheck and takes her to cancun for two weeks, he’s got her over a barrel.
Well, you say, she agreed to it! Maybe…. what if it is in the fine print? That’s enforced now–so now what?
I suppose this is like a permanent prenuptual situation. Which, of course, are NEVER, EVER abused.
Vanceone on May 28, 2009 at 11:33 AM
I’ve only been proposing this for years now.
Aside from the government having absolutely NO business supporting social things like marriage via the tax code and other things, it would remove 98% of the argument about same sex marriages since they’re all over the TV talking about the “benefits” of marriage through the government.
I’ve always railed against the discrimination of single people because of all the government meddling in marital affairs, end government involvement in marriage and a lot of problems evaporate.
What? Less government? Noooooooooooooo
Spiritk9 on May 28, 2009 at 11:33 AM
Here’s your argument.
Here was my change of wording…
If a certain institution doesn’t APPEAR (at least in your eyes) to have the will to hold up it’s values, doesn’t mean that the government should come in and change things or try to uphold those views.
No, that institution better start fighting harder. So in many ways the two above statements are very similar. You are assuming the Church is all but dead and will never be able to revive itself … therefore here comes big gov’t to protect our morals…
My statement would suggest that Constitutionalists don’t have a lot of clout these days (which under Barry they don’t appear to have). Therefore, maybe it’s time to move on. Let the government decide what is and isn’t
ConstitutionalRight/Legal/Moral/Empathetic…Upstater85 on May 28, 2009 at 11:33 AM
Thats the beauty of this idea. It makes it impossible for them to complain about anything anymore. Their only point of contention from that point forward would be with the Catholic Church who won’t marry them. Good luck to them with that.
Zetterson on May 28, 2009 at 11:34 AM
The evidence suggest that there is a fascist minority in California that demand that their marriages be recognized by EVERYONE and EVERY INSTITUTION…
Upstater85 on May 28, 2009 at 11:35 AM
I love it when The Other McCain agrees with me.
broker1 on May 28, 2009 at 11:35 AM
True. Sounds horrible. Doesn’t mean it will actually happen. It seems divorce would be more than legal and possible (heck, we don’t have a problem with bankruptcy…)
Further, this assumes that no one is currently getting the raw end of the stick in their divorce hearings. People loose money all the time. I’d say it’s the drunk chicks responsibility to know what she’s signing… That said, she still can call the police &c.
Upstater85 on May 28, 2009 at 11:38 AM
Oh, and I’m assuming the County Clerk would realize she wasn’t sober and could force her to wait until she was… Kind of like what they do with people wanting to get tattoos.
Upstater85 on May 28, 2009 at 11:39 AM
The same reasoning doesn’t apply to the constitution because a) the constitution does have authority and influence and b) there isn’t a viable alternative that can provide the same benefits that the constitution does.
RightOFLeft on May 28, 2009 at 11:39 AM
IANAL, but since it’s more often than not the power of state (or the threat thereof) that enforces contracts, how does defining marriage as such “get government out of the marriage business”?
Hesiodos on May 28, 2009 at 11:22 AM
Rocks on May 28, 2009 at 11:39 AM
Are you sure about that? For that to be true poligomous relationships would have to be recognized either by the Church or by the civil license contract. I don’t know that either of them does.
Zetterson on May 28, 2009 at 11:40 AM
What was marriage before the courts stepped in an made marriage a civil sacrament? It was a contract. Father gives 10 goats and his girl to the son of the local tent-maker who gives the parents a new tent and one to the young couple. They have been contracts all along. It is only our sleepy-eyed romantic society that wants to see them as something else.
So I agree with Kmiec, get the government out of the marriage business all together.
Vanceone, the way you prevent abuse is simple. Contract law. Maybe you don’t realize this, but crazy people draw up “slave and master” contracts all the time. Do a quick google search and you are bound to find one. Basic fact, battery is illegal and a contract to commit an illegal act is not enforceable.
darcee on May 28, 2009 at 11:40 AM
*shudder*
The thought of people having sex with more than one person… Who would have thought… /s
Upstater85 on May 28, 2009 at 11:40 AM
They don’t. Consider how many people got into adjustable rate mortgages, and didn’t look at what “adjustable” meant. Same thing with credit card contracts. Read the fine print and you’d know the bank (until the recent change in the law) had reserved the right to raise rates.
As far as your example goes, not all contracts are enforceable. There are ones that are void (slavery), and others that are voidable by a court if challenged.
One basis for a court setting aside a contract is if the terms were “unconscionable,” i.e., they shocked the court’s conscience. (And no, there isn’t a single measure for that). The parties were on very unequal bargaining terms when the contract was made is the common situation. Classic case is Williams case from DC. Woman bought several pieces of furniture on installment plan, and when she defaulted, it repossessed everything, even though she’d paid an amount over the price of the first piece of furniture.
Proof of intoxication (if it could be later proved) would also possibly be grounds for voiding certain terms.
Wethal on May 28, 2009 at 11:41 AM
Not just that, there’s also a concurrent meme of “homosexuality is not immoral,” or “homosexuality is not unreligious,” “homosexuality is Christian,” etc.
I’m just saying that I think it goes a little further than “normal.”
Exit question: What will be “the next big civil rights issue?”
thebadoutlaw on May 28, 2009 at 11:43 AM
Bigamy?
Wethal on May 28, 2009 at 11:44 AM
Vanceone, I’m sure that man would have been a wonderful husband if only the government stamped the marriage certifice instead of the civil union certificate.
Zetterson on May 28, 2009 at 11:44 AM
I’ve thought for a while that the government should provide a “civil union” that is available to all couples while maintaining the current marriage laws. This would allow the legislature to specify exactly what benefits and responsibilities were involved while not applying all of the case law around “marriage” that was designed for the nuclear family to a potentially different situation.
Given time, the two forms might well converge. Or not. But we’d eventually work it out.
Bill Roper on May 28, 2009 at 11:45 AM
I didn’t say The Constitution as a group of people… I said Constitutionalists. Further, it would appear that the Constitution is losing some love on the left… I’ve heard they want to start citing international law. Sounds like the Constitution is being chased after just as hard by the left as the traditional church.
Finally, I believe the Pope has authority (on some level) and he most definitely has influence. Perhaps the Church isn’t as dead as you claim it is. Oh, and that’s only one church. I’ve heard those crazy Evangelicals are growing and producing like nobody’s business.
In the end though, if you think something is failing (whether it is or not), then we better call in the moral cops (i.e. trusted gov’t)…
Hmmm sounds almost like an Obama bailout.
Upstater85 on May 28, 2009 at 11:45 AM
Well, a civil partnership license ought to be between consenting adults with no genetic relationship (to some extent.) Whatever extent that needs to be to prevent genetic defects, is up to people who know that stuff.
Wouldn’t this scheme require either a Constitutional amendment, or changing the law of both the Federal government (in as far as it confers privileges to married people,) and State governments.
Keith_Indy on May 28, 2009 at 11:47 AM
One has to realize that getting the government involved when its philosophy is close to yours also means that at some point the government will be involved when elections have brought in a government not close to your philosophy. Better to get all government out of this (and other) issues. Limit the power of the government and it has less influence (good or bad) over you life.
dpierson on May 28, 2009 at 11:47 AM
Good points.
Upstater85 on May 28, 2009 at 11:47 AM
It doesn’t because it will have no material change on how the marriage is treated by the government except to not use the word marriage. No one is going to go for the actual use of contract law for these unions. It’s just redefining marriage to any 2 people instead of only a man and a woman.
Rocks on May 28, 2009 at 11:47 AM
So? Do you realize that at this point, you can live with several women, take care of their children, be in a commited relationship, and even have them take the Fathers name through a simple name change form? Through powers of attorney you can have medical rights to make decisions…
Heck, you can even claim them as dependents on a Tax form if you do it right (and they are the Father’s kids anyway… check out Head of Household definitions).
You can have a defacto polygamist relationship WITHOUT getting a marriage license anyway… so your arguement is about nothing more than a word…
So please, if Polygamy is your only argument with this… its pretty much a non starter…
Romeo13 on May 28, 2009 at 11:47 AM
I support this tactic completely. In the long run this is the ONLY way social conservatives can win AND it’s a solid way of mending fences with your other republican allies.
Look, get the government out of it and NO ONE is married according to the government. Marriage becomes an entirely private affair. Thus, if you’re against gay marriage you win. You don’t have to recognize anyone’s marriage. All you have to obey is contract law which is no different then it’s been for the last 400 years… that is if you sign certain rights and privileges to someone else then they generally have them.
Period. That’s nothing new and if government doesn’t marry people then that document won’t be marriage. It will just be a contract granting rights and privileges. No different from giving a lawyer power over your estate or a doctor power over your life support machine.
it also lets you set up marriages to be whatever you want them to be. Look at all the problems we have with divorce? Well, by taking it out of the government’s hands our marriage contracts won’t get changed after the fact. All contracts that accompany marriage will in effectively be prenups. You could set up all sorts of punishments for infidelity or make dissolution of the contract more or less painful. In effect you could have much stronger contracts.
AND if written properly you could avoid lawyers in the event of divorce by putting in the contract that it will be handled by a mediator.
Karmashock on May 28, 2009 at 11:49 AM
See I thought big government was fine under Bush, but this Bambi guy really gives me the hibbie-jibbies… /s
Upstater85 on May 28, 2009 at 11:49 AM
Heh.
MadisonConservative on May 28, 2009 at 11:49 AM
Another way to stop polygamy is to raise the legal age to be allowed to marry to 18. That takes pressure from the parents over the child to let them get married to some guy out of the picture.
dpierson on May 28, 2009 at 11:50 AM
Zefferson:
Your analysis of the reason that the state got involved in marriage is ahistorical and nonsensical. State involvement in marriage predates the existence of settlements in the New World. In England marriages fell under the authority of the Church which was a State institution. This is also true throughout Christendom. Even if you go back to biblical Israel the religious authorities were also state functionaries. This role of the Church lives on in the English speaking world though the State conveying JP powers to ordained clergy.
The French Revolution and Otto von Bismarck began the European tradition of Civil Unions in the late 18th and mid 19th century respectively. The Revolutionary French did it in spirit of anti-clericalism and Bismarck did it to clip the wings of the Roman Church in the newly established unified state of Germany.
This debate is being conducted with a lot of ignorance about historical and legal traditions. As I said above turning marriage into a civil contract greatly expands the role of the state in interpretation of the contract. The existence of a legally defined state of matrimony actually minimizes state influence in marriage by laying a basic framework that all parties sign up to. Statutory rules reduce conflict and therefore the need to refer disputes to the courts.
jerryofva on May 28, 2009 at 11:50 AM
Absolutely. Otherwise the Libertarians and classical liberals will break off. The SoCons will be alone with some of the Republican Traditionalist. And the Hawkish Right will flounder around – maybe flirting with the SoCons… Moderates/Indies will probably flock to the Donks.
Upstater85 on May 28, 2009 at 11:51 AM
I agree that family is the bedrock of society and that stable and good families are essential to a good society and that this is of vital concern to all of us. I disagree that this of concern for the government but rather this is of concern of the community.
I’m fine with the idea that government shouldn’t be in the marriage business as it were but to suggest that government is going to let go of it is naive. It’s a nice idea but it’s a pipe dream. Not even the vocal gay-marriage advocacy groups don’t want this – if government is out of the marriage business then how can they mandate acceptance?
So we have a situation in which government is going to be involved in marriage so the only real question that exists is what will that involvement be? Will it support traditional marriage or will it be used as a bludgeon to enforce liberal ideals of ‘tolerance/acceptance’ and social engineering?
gwelf on May 28, 2009 at 11:51 AM
Wethal, I know about contract law. I have my own law degree as well. But trying to show unconscionability or incapacity such as drunkenness is a heck of a lot harder, I know that. Or trying to get out of an adhesion contract.
Sure, I know that some “marriage contracts” would be clearly and easily tossed out. No problem on some of them. But how about sharia ones? Or others that, just like most insurance contracts, give MOST of the power to one side or another?
What about mandatory arbitration? I contract to have my marriage law heard in “Wife-beaters Forever court of arbitration!” As long as occasionally they hold for a woman in that court, it’s a choice of law and forum–especially with the recent trends for forcing mandatory arbitration.
If some “standard” contract is released by various groups, it will be carefully drawn up and be some 30 page document. All it would take is some guy just picking from a list to make life hell for his wife–and she can’t do anything. Mandatory arbitration. At her own expense. In some “court” somewhere that is usually stacked.
I recall trying a case on title insurance with a mandatory arbitration clause, where the arbitrators were selected from a board picked by the title companies. Think my client had much of a chance? Think the judge let me out of mandatory arbitration? Nope!
Same thing will happen in this new marriage system.
Vanceone on May 28, 2009 at 11:53 AM
No mention of the Progressives I see…
Also, when two people got married without witnesses, do you think the Catholic Church forced them to remarry? Historically speaking.
Upstater85 on May 28, 2009 at 11:54 AM
What is the idea here? Just renaming marriage a “civil contract” and that’s it? The same bundles of rights and privileges apply? Or going full force and the UCC? Contract whatever you want?
What’s the proposal, people?
Vanceone on May 28, 2009 at 11:57 AM
Wow, you could not possibly overanylize this anymore. Call me crazy/nonsensical but I think these civil licences have an actual purpose. The purpose being, grant homosexual couples with the same rights under the law (hospital visitations, tax benefits, etc) as straight married couples.
Zetterson on May 28, 2009 at 11:58 AM
Summary:
The marriage debate is hard. It makes people uncomfortable and politicians don’t want to deal with it.
I know! Let’s just get rid of marriage! It hasn’t meant much to us, anyway. Problem solved!
obladioblada on May 28, 2009 at 12:00 PM
Here’s the best argument I can come up with to support the Kmiec position:
As long as the government has the power to define marriage, it has the power to define it however it chooses. If Christians and conservatives ever become a permanent minority, which is unlikely but possible, do you want the government that cares little for christian tradition to be defining marriage? Marriage in the way many on this board want it to be WILL BE DESTROYED if it is allowed to die by the thousand cuts of democratic preferences. If you care about this cultural institution, work to strengthen it in the CULTURE. Relying on the government to uphold this institution only abandons it to the whim of the mob.
LockeFox on May 28, 2009 at 12:00 PM
Totally agree. And for those worried about plural marriage, there is a simple, common-law reason to limit such a contract to between two individuals: The prevention of fraud.
Let’s face it, for every serious poly, there will be 10-20 people who would try to use legalization of multiple partnerships as a doorway to such things as green card fraud, abuse of spousal privilege in criminal cases, and other such reasons for a sham marriage.
Sekhmet on May 28, 2009 at 12:01 PM
They way I understand it is that its renaming what the state currently recognizes as marriage. New name, civil license. Marriage does not become redefined as many of us on the right fear will happen as a result of “gay marriage”. A straight person does not have their definition of marriage changed while the gay community has access to the same state issued rights and perceived equality.
Zetterson on May 28, 2009 at 12:02 PM
It’s just changing the name and somehow that’s billed as getting the government out of marriage.
Rocks on May 28, 2009 at 12:03 PM
Ed’s wrong. The government has a duty to support a healthy society by favoring responsible behavior. That’s why “married with children” has been and should increasingly be supported by tax law. If anyone here read Spengler’s piece on US demographics in First Things they’ll see clearly what calamity awaits a nation that decides to not breed and grow.
Marriage and family are a blessing to the nation. We don’t give in. We fight any way we can until we win this.
There’s a similar lunacy involved in the refusal of urban, educated Americans to breed and their “open-minded” acceptance of homosexuality as a God-given right blessed by our founding Declaration and Bill of Rights. If these same people call themselves Christians as does Kmiec then they are hypocrites and worse, heretics. They create a law above that set forth by their God and pervert the foundation of the nation.
There should be no compromise nor accommodation that can be interpreted by either party as equality in the eyes of the law.
rcl on May 28, 2009 at 12:03 PM
Exactly. If the right’s main goal is to protect the sanctity of marriage it is far better to put it in the hands of the church which will never change it. The government will change marriage as we know it. Straight marriage advocates lose nothing by putting it in the hands of the church, in fact they gain.
Zetterson on May 28, 2009 at 12:06 PM
Actually it does get redefined. It’s redefined simply as a union of 2 people, at least by the government. If you going to dump the word because it’s morality and traditions mess with progress then you need to dump the morality and traditions too and not just the word. Until then the government is just as much in the marriage business as it ever was they just won’t be calling it marriage.
Rocks on May 28, 2009 at 12:06 PM
You don’t see a problem with that?…just let the lawyers wing it?
Itchee Dryback on May 28, 2009 at 12:06 PM
Bigot!!!!!eleventy!!one111!!!!
I’m not really calling you a bigot but if were going to treat ‘marriage’ as a fundamental right, an issue of equal protection, etc then denying it to polygamists is just as egregious as it is denying to homosexuals.
gwelf on May 28, 2009 at 12:07 PM
rcl, marriage will be destroyed if you have your way. The government will chip away at it one piece at a time until its completely meaningless. Please understand, this proposal to put marriage in the hands of the church is a far safer senario for your stated concerns.
Zetterson on May 28, 2009 at 12:08 PM
Isn’t this position premised upon the women being completely unconcerned with the specific marriage contract they enter and the men, who presumably intend to marry the women, also for some odd reason wanting to screw the women over?
With title insurance, there’s a clear reason to set up the arbitration clause that way. Someone’s going to try to collect, it’s guaranteed, so you’ve got to cover your ass for when that happens. It seems odd to assume that men enter into marriage expecting to get divorced and choosing, before getting married, to make sure that process would be as bitter as possible.
It’s a legal agreement. Yes, if one person entering the contract is entering a bad contract s/he is screwed, but how the hell is that any different from entering any other contract now? Obviously you know more about this than I do, but it seems your position is founded on a counterintuitive premise.
galenrox on May 28, 2009 at 12:09 PM
Please point out where, in the Constitution, the Government is given this duty, and the authority to enforce THEIR view of “responsible behaviour”?
Romeo13 on May 28, 2009 at 12:09 PM
Marriage in itself is an issue of equal protection: It protects both spouses in the event something unfortunate happens—establishing presumptive paternity of children, the right to make medical decisions in the event of one spouse’s incapacity, the right to inherit, etc.
Sekhmet on May 28, 2009 at 12:14 PM
You think that would solve the problem?
The problem is in the minds of the gaystapo. They don’t want civil unions.
If the compromise is to have all couples be in “Civil Unions”…and then go to a church in order to have it called “Marriage”…nothing has changed. In their minds the gay militants would still see themselves as being deprived of some “right”.
Whats being described is what you have in Cali. Did it work? Did they finally STFU and go about their lives? ./…uhh, no.
Itchee Dryback on May 28, 2009 at 12:14 PM
This, and Kmiec’s argument is facetious. Government already did radically change marriage to favor women and children.
If Kmiec was serious about this then he would also advocate dropping those laws too but he’s fine with government using the civil unions to make the same changes that it would for marriage. In other words all he’s advocating is for the government to stop using the word marriage.
Rocks on May 28, 2009 at 12:17 PM
just tossing this out there…probably wrong document, but…”Provide for the common welfare”
Itchee Dryback on May 28, 2009 at 12:17 PM
Exactly. The only way you can ensure your own freedom is to ensure the protection of everyone else’s freedom from you. We’ve been seeing this for years, the exact same way government was once used to force anti-gay positions on others it is being used to force pro-gay positions on people now. The photographer in New Mexico who got sued and actually LOST because she didn’t want to photograph a lesbian wedding, that’s how it works. Unless the consensus is you do whatever the hell you want and we’ll do whatever the hell we want, the urge to use government to make your own views the legal consensus will go both ways and someone else will use it to force their own views on you.
galenrox on May 28, 2009 at 12:17 PM
Galenrox: It’s a valid point that most people love the person they want to marry, and won’t try to screw them over.
That said, however, if you are going to have to have a prenuptial anyway (as a full fledged contract view of marriage is basically going to be), you might as well protect yourself, right? I know I’d have thought that way before my wedding.
Let’s face it–men are, usually, the worst ones. There’s plenty of room on both sides however to screw this up, or take advantage. And the last thing any romance needs is bickering over contract terms.
Should I expect to get divorced? No, but how many marriages last today?
And one other thing: What’s to stop “contract expiration” dates? Where you marry for 5 years or whatever then it just automatically expires? I know a heck of a lot of people who might want to try that. Forget “til death do you part” it’s now “til in 5 years you part.” There’s no provision for that in our current marriage system, but this idea would allow it. Good or bad? Well, frankly, it seems a great way to trivialize the concept even more.
Vanceone on May 28, 2009 at 12:18 PM
How so? Marriage is a social, religious, spiritual and/or legal union of individuals (one man and one woman) that creates kinship. This union may also be called holy matrimony.
All of that remains. A couple goes to the church and gets married. Then the couple goes to the city hall to get the state approval which would now be called a civil license. The civil license grants them certain rights such as hospital visitations and tax benefits. Everything is the same, only difference being gay activists no longer have anything to complain about.
Zetterson on May 28, 2009 at 12:19 PM
My bad about the constitutionalists. In my defense, it’s kind of hard to parse the original argument after you’ve played mad libs with it.
Moving on. I’m not saying Christianity is dead, just that it can’t offer the same advantages in marriage that the U.S. government can. The pope may be powerful and influential, but he has no authority under our constitution to enforce things like inheritance, visiting rights, tax incentives, child support, custodial arrangements, or any of the other rights and obligations people expect from a marriage. The typical Easter-Christmas Catholic will only take his marriage as seriously as he takes the religion backing it. He (or she) can back out at any time, and the worst thing that will happen is he might have to switch churches.
RightOFLeft on May 28, 2009 at 12:19 PM
Another question for you “contract” people: Parents have the authority to contract for their children. Isn’t this an opportunity for lots of abuse? Parents decide to marry their daughter off to someone when she’s 17, she can’t stop it. Terms of the contract are set up so that she’s stuck with severe penalties if she backs out once she’s of age. Parents get whatever they want.
In essence, a return to the old dowry/feudal days. Good idea, or no? I will say that parents would have veto power over kids running off and getting hitched, which could be okay in some situations too.
Vanceone on May 28, 2009 at 12:23 PM
“They” are us.
Over the course of the evolution of the socienty WE have determined what makes up a healthy social order. Things just evolved into what they are.
Itchee Dryback on May 28, 2009 at 12:23 PM
No, their point of contention is that the state stamps a marriage licence for you and your wife. Meanwhile the state says, “because you are gay you cannot get that license. For you we have the civil union license.”
This proposal removes that point of contention. You and your wife can still get joined in holy matrimony at your church. Marriage has historically been a religious institution. And that will remain the same for you.
Zetterson on May 28, 2009 at 12:24 PM
And we’re better off as a society for the existence of no-fault divorces. Yeah.
Your whole argument smells like you’re just walking away from a distasteful subject. Meh, you want to sacrifice the last vestige of social cohesion and institutionalize “Heather Has Two Mommies” for the sake of avoiding unpleasantness, go ahead.
Just don’t whine about the heat when the melting pot falls apart and spills all over you. Our culture is about everyone getting what they want at the expense of any discernible common moral sense. When all those moral barriers are gone, you won’t like what you’ll get: a government that is run by those least likely to take a moral stand on anything.
spmat on May 28, 2009 at 12:26 PM
And again, the gay community may/will always see themselves as being deprived of some “right” but from now on they won’t be able to complain to the government about it. They will have to take their complaints to the Catholic Church who now owns marriage.
Zetterson on May 28, 2009 at 12:27 PM
Easy fix… put in a stipulation that these contracts cannot be entered into until they are 18…
ie… if we do not trust you enough to vote, you probably should not be making this type of major life decision…
Romeo13 on May 28, 2009 at 12:28 PM
I agree with Zetterson. Under this arrangement, you can’t sue a church for not marrying you any more than you can sue them for not baptizing you.
Sekhmet on May 28, 2009 at 12:28 PM
We would simply have to abandon the idea of joint ownership of property. He has his, she has hers, and if they do want to jointly own something, they have to make a contract specific to that something. Confusing? A boon to the lawyering business? Yes. Potentially devastating when the “something” is a child.
People keep referring to the past when common law worked well enough. In the past, however, there were customs and expectations that governed. A man was expected to take care of his wife and children and if he didn’t, the community interdicted. Does anyone imagine that that is going to happen now? We have a fractured, “mind my own business” society.
This idea will only hurt the vulnerable, especially mothers and children.
evergreen on May 28, 2009 at 12:30 PM
Exactly, it takes away the gay activist’s legal avenue for attack. Its the current legal avenue (activist judges) that currently endangers marriage as it has traditionally been.
Zetterson on May 28, 2009 at 12:31 PM
To add to my last comment “This idea will only hurt the vulnerable, especially mothers and children”… thus we come back around to the reason we have civil marriage in the first place. But if we’re going to harm it to the point of meaninglessness, I guess I can agree that it’s time to get rid of it altogether.
evergreen on May 28, 2009 at 12:33 PM
Actualy? No. This country was founded as somthing of a social experiment. The Founder’s wanted the MOST Freedom, and least amount of rules which would allow a functional government. Think Realistic Libertarianism. Then give the PEOPLE, the INDIVIDUALS the Freedom to live as they wish, as long as they do not hurt someone else.
Its interesting to me that the Gay Lobby, and Social Cons, are interested in the same thing, pushing others into THEIR view of how society should be, and using the Government to enforce it.
I don’t want EITHER group to have that “authority”… thus this elegant solution… getting the Government out of somthing they probably should not have been involved with in the first place.
Romeo13 on May 28, 2009 at 12:34 PM
Getting rid of what altogether?
Zetterson on May 28, 2009 at 12:35 PM
Or put in a stipulation that these contracts are only valid between one man and one woman, over the age of consent and meeting specified conditions of consanguinity.
Regardless, you’re defining marriage by limiting the terms under which this contract can be entered into.
In other words, yours is a de facto argument in favor of homosexual marriage. Quit trying to obfuscate that with pseudo-agnostic language. The point is you don’t care if they get “married” or not. The issue of the fundamental rightness or wrongness of it is not relevant to you.
spmat on May 28, 2009 at 12:40 PM
Unlikely, if they SoCon’s refuse to work with anyone that does not submit entirely to them… then they’ll isolate themselves into political irrelevance. The libertarians, FisCons, and small government factions in the party have always been strong and they all work together well. If anything persists it will be them.
The irritating thing here is that this solution gets the SoCons the best deal they could hope for… and one that would last. Any outright ban on gay marriage is going to fail eventually. It can’t be defended with anything but consistent political will and you just can’t keep that up forever.
It is at this moment when we can bargain for a solution that will last. If we wait too long then this moment will be lost and we’ll get a much worse deal. The choices are NOT between banning it and opening it up entirely. The choices are between a more clever and lasting defense… or defeat.
it’s really that simple. On top of that it makes the other coalition members happy and they need a gesture from the SoCons at this point. They’re very nervous about this militancy and hostility. We all serve each other’s interests by providing a unified front. But that only lasts for as long as it is unified. No one is saying you have to change your opinions or wishes. But we’re a team. That means half the team can go running off in a completely different direction whenever it feels like it. It opens a gap in our defenses and we lose. They don’t need to compromise with the democrats. They need to compromise with their fellow republicans so we can hit the issue with a unified front. Anything short of that is going to fail eventually because the democrats have no disunity on this issue in their ranks.
Karmashock on May 28, 2009 at 12:41 PM
Romeo13: Your idea of making marriage only for adults won’t fly. If kids can get abortions at 13… why not marry at 16? Indeed, most states allow 16 and up to marry with parental consent. You are proposing to destroy that?
Let alone destroying the honorable thing to do–if you get the girl pregnant, you should be a man and marry her. Goodbye to that! So, explosion of single teenage mothers–by law. Great idea, Romeo.
Vanceone on May 28, 2009 at 12:42 PM
It’s a good idea but it won’t fly with the liberals.
The attack on marriage isn’t about marriage at all.
It’s a tactic to undermine the family unit so that the state can weaken the most powerful social unit that can provide alternatives to the state’s absolute authority.
That’s what feminism is about, it’s what abortion-on-demand is about, it’s what “no private education” is about, it’s what “gay rights” are about, it’s what welfare is about, and it’s what no controls on the media is about. Each of those political tactics attacks the importance of a family unit or damages a family’s ability to influence it’s members, which then increases people’s dependence on the state. The state ultimate intends s that people be entirely isolated and completely dependent on the state for everything. With no social networks left, the state’s power is absolute.
Russia did similar things to destroy families and other social groupings like the Orthodox Church. If it weren’t for the United States, Russia would control the world today, because inside that country, there was no longer any significant means to resist the state.
notagool on May 28, 2009 at 12:46 PM
How so? It will be so because this civil license will allow the government to enforce a common morality established by from marriage.
What happens with people who marry and never get a civil license when they separate? Is the government going to not apply civil union laws and rules? Of course they will. In effect having marriage without “marriage”.
What happens when people who do get a civil license but enter into a contract too? The same, they will get the government’s version of “marriage” called a civil union. Prenuptials are routinely thrown out. Do you think a judge is going to enforce a clause which states if one of the parties is adulterous they will suffer penalties including loss of primary custody of the children? Do you think a judge will enforce a clause which states one party can not hold the other financially responsible for children shown not to actually be theirs?
How is the “right” or “conservatives” or “churches” supposed to protect and defend a mrriage if the government is able to control every facet of it even though they stopped calling it marriage? They can’t defend it because what they have is the word alone.
Rocks on May 28, 2009 at 12:47 PM
I’ve often wondered whether taking government out of the marriage definition business might be the only way to solve the gay marriage issue.
As most Americans understand on some level or another, gay marriage is more about achieving legitimacy in the eyes of society than any thing else. In other words, gay marriage is a strategy designed by people who think government has the power to legislate right and wrong (if gay marriage is legal, it must be right; if abortion is legal, it must be right, etc.).
By taking government out of the defining marriage business, we should be able to satisfy those who object to gay marriage on religious grounds and gays who insist that they only want the same legal recognition as traditional marriage.
Anyone who disagrees with this solution, whether on the left or the right, would seem to want the government to either bless gay marriage or condemn it. Why do so many Americans think of the government to act as some kind of big moral referee?
Infidoll on May 28, 2009 at 12:47 PM
very well said
Zetterson on May 28, 2009 at 12:48 PM
Mr. Morrissey, The Gay community will not be happy with any deal they get until they have smashed or perverted all religious institutions, and anyone else that disagrees with their sexuality. Giving into these groups is like giving into Hamas, you give up something then the next day they are firing missles into your neighborhood. How many laws have been passed already to try and appease these groups, and every time it happens the people that oppose on moral grounds are left standing more reviled then before. I mean just look at Ms. Prejean, she was merely stating her personal beliefs and the HATE directed at her was disgusting.
SGinNC on May 28, 2009 at 12:52 PM
Why do some people seem to think that if the US government stops issuing marriage certificates, that marriage will not go back to being what it’s been for however many thousand years that the government didn’t issue those pieces of paper?
MadisonConservative on May 28, 2009 at 12:53 PM
Zefferson:
I was responding to you contention that the state got into the marriage business to prevent interracial marriage. All I was doing was pointing out how nonsensical that was. You seem to be putting too much into my critique. Perhaps you do so because I pointed how stupid your contention was.
jerryofva on May 28, 2009 at 12:55 PM
When they actually do any work.
spmat on May 28, 2009 at 12:57 PM
How cute. Marginalize yourselves even more.
MadisonConservative on May 28, 2009 at 12:59 PM
Madison:
The state has always sanctioned marriage. As I have pointed out to Zefferson, religious institution that had sanctioned marriages for a couple of thousand years before the current era were also state institutions.
If we left the sanctioning of marriage up to religious institutions today then the marriage would have no legal standing since they are no longer organs of the state.
James Madison would find your use of his name to make such argument an insult.
jerryofva on May 28, 2009 at 12:59 PM
That’s right Dougie - throw out the institution at the center of Western Civilization to make your homosexual friends feel better.
corona on May 28, 2009 at 1:02 PM
Because the marriage was never what the government has made it into. Fault in marriage had a basic and fundamental place. The government stopping issuing paper is not going to make marriage what it always was. It’s simply going to allow them to change who they issue the paper too. We will still have government “marriage”. “Empathy” filled judges will void contracts whenever they see fit regardless of the legality and enforce the government’s views.
If the government wants to do marriage then they need to stick to the definition of a marriage which is and always has been a a man and a woman. If the government truly wants to get out of marriage then they need to drop marriage based morality laws and enforce whatever contract the parties agree to using contract law in addition to not using the word marriage.
Rocks on May 28, 2009 at 1:05 PM
Not my fault the city I live in, in Wisconsin, was named for him. Leave your outrage by the door.
Again, the only precepts of marriage that need sanctioning by the government are legal implications of dissolution of the marriage, and potentially tax benefits. Neither of those require the labeling of the arrangement as “marriage”. Since so many people seem hung up on the definition, primarily based on their faith, the answer is to leave the definition up to their faith, which the government is not supposed to endorse.
MadisonConservative on May 28, 2009 at 1:07 PM
Okay, so which of those is more practical from the standpoint of a free nation? Hint: not the former.
MadisonConservative on May 28, 2009 at 1:09 PM
I’m really having trouble pinpointing your concern. If people, for some strange reason, get married in a church and then don’t go to the state for their civil license get seperated… well, they’re no longer married. They’d get a chuch issued divorce or something. I guess they will be forced to solve other issues the old fasioned way. Like before lawyers got involved.
And Rocks, why can’t that happen today? What if people got seperated after having been married for 10 years, what would become of them if for some strange reason they never bothered going down to city hall to get their marriage license? Its no different. How would that be handled? Of course that would never happen though.
The legalities of the contracts would be no different then they are today. Judges would skew their decisions to favor women. Either way, its judges doing what judges do and lawyers doing what lawyers do. That much would remain the same, I can promise you that.
Zetterson on May 28, 2009 at 1:11 PM
Easy there jerryofva. I mean no offense. You are obviously well versed in historical facts. If I was incorrect about our government’s origial purpose for sticking its nose into the business of marriage I will concede that point without hesitation. But please, go back to the begining of this thread and read the comments throughout. The point I was making about the progressives wanting government involved in order to prevent interracial marriage was made by others as well. Somehow I’m not alone in that belief which, by no means, means I’m right. Just that I’m not alone in it for whatever reason.
Zetterson on May 28, 2009 at 1:16 PM
MB4 on May 28, 2009 at 1:16 PM
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