Kmiec: Time to get government out of the marriage business
posted at 10:12 am on May 28, 2009 by Ed Morrissey
Share on Facebook | printer-friendly
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.
You must be logged in to post a comment.
Blowback
Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.
Trackbacks/Pings
Trackback URL
Comments
Comment pages: « Previous 1 2 3 4 Next »
This canard of marriage is just a religious thing is a joke.
If marriage came solely from religion then we would have many definitions of what marriage is as we have many religions. We don’t. Marriage as a man and a woman is universal across time, place and religion. From an anthropological standpoint one can only conclude religions co-opted marriage the same way governments did. The definition of marriage as a man and a woman is just as much cultural as it is religious.
There is nothing illogical about an atheist being against calling the same-sex union a marriage than there is of him being against calling copper gold.
This solution doesn’t “leave the definition up to their faith,”. It simply says the government will use their concept of marriage to apply to anybody and not what the “faith” or person of faith agree for their marriage.
Rocks on May 28, 2009 at 1:20 PM
lol. Kmiec’s “argument” is to kick the can over to the neighbors.
MB4 on May 28, 2009 at 1:20 PM
I have been saying this for years, unfortunately the snakehandlers were too smug over their comfortable majorities of the past to look at principle and it looks like they squandered their political capital by selling low, at least for the few that have come around. I learned that marriage was a sacrament carried out in shrines to a fictional skygod. Let them have that craziness to themselves and let people who cohabitate do whatever they want to do relationship-wise and allow them protections like hospital visitations, inheritance, etc.
LevStrauss on May 28, 2009 at 1:24 PM
Or a car an airplane. Or a backhoe a frontloader.
MB4 on May 28, 2009 at 1:25 PM
Yes, but the problem now is that they are able to use a perceived missing civil liberty as a springboard to launch their attacks against the church and its traditions/institutions. They are like non-uniformed combatants on a battlefield. This proposal to put the institution of marriage into the hands of the church rather than the hands of the government is akin to putting them in uniform. They will no longer be able to wage their war from the shadows. They will have to immediately become clear about their goals and their intentions and fight the church head on. That is a battle they can never win.
Zetterson on May 28, 2009 at 1:27 PM
It’s “their” concept of marriage, but not actually marriage?
Then what are you worried about? Your concept of marriage will be preserved by your church. Again, you claim a threat to your faith by the government backing off and not claiming to define what your faith sees as marriage.
MadisonConservative on May 28, 2009 at 1:28 PM
Not sure how I fall but this is an interesting read.
http://www.gemworld.com/US-MarriageLicense.htm
PrincipledPilgrim on May 28, 2009 at 1:28 PM
I agree with George.
However, Kmiec’s solution would be better than allowing the government to continue pervert marriage further and further away from its focus on family and children.
Sackett on May 28, 2009 at 1:37 PM
Anything more than the most cursory examination of Doug Kmiec’s thimblerig proposal reveals it to be worse for proponents of real marriage than the nationwide equating of gay “marriage” to real marriage would be.
MB4 on May 28, 2009 at 1:42 PM
Maybe. But does that mean we should capitulate or fight back? That is, the fact that the state gave up protecting the family previously is not necessarily an argument for complete withdrawal now.
PersonalLiberty on May 28, 2009 at 1:43 PM
Even if they were to get this so called missing civil liberty, they will wield it like a sword to destroy any critics of Homosexuality. This war is deeper than their lusts for the same sex, it is also for the hatred of a God that says what they are doing is an abomination in his eyes.
Homosexuals will not be happy until they strip God’s words from his own book, and convert God’s faithful. The Bible is already being re-written in other so called “Progressive” countries and it can also happen here. Who would have thought that we would have Gay preachers in America twenty years ago?
SGinNC on May 28, 2009 at 1:45 PM
Why is that MB4? I find myself in a rare position of disagreement with you. Curious to know your reasoning for that statement.
Zetterson on May 28, 2009 at 1:46 PM
Zefferson:
Just because Progressives wanted to use marriage law to prevent interracial marriage doesn’t mean that was the origin of government involvement. The Governments have been involved since man left the state of nature.
If you want the government out of marriage then all laws relating to marriage should be repealed leaving relationships up to individuals without recourse to the law. Civil Union by contract doesn’t end or reduce government involvement in marriage, it increases it.
jerryofva on May 28, 2009 at 1:53 PM
Are the Gay preacher’s Catholic? If not I’m not entirely sure where the problem with that is.
My point is, both you and I know what the true agenda is for the gay activists. Its to destroy the Catholic church and demand not just the same legal rights as straight people but to be viewed by all as at least equal at best exceptional. Their ability to use this very powerful weapon (activist judges) is their only weapon. Take that weapon away from them in regards to marriage. If its in the hands of the church activist judges are immediately powerless to attack it.
Zetterson on May 28, 2009 at 1:58 PM
My “church”, or just me for that matter, will never be allowed to preserve a concept of marriage. No judge is ever going to enforce religious based, or my own, concept of marriage even if my spouse agreed to it. I’m not claiming a threat to anything. I’m claiming I’m being sold something I am not getting it.
Rocks on May 28, 2009 at 1:59 PM
Fair enough. Good point.
I’m curious as to know why you think that is. Please explain.
Zetterson on May 28, 2009 at 2:02 PM
Ed, I respect your insight on marriage issues and the damage done by our contemporary society with divorce, etc. I’ve got to disagree with you on this issue for several reasons, though.
First of all, “marriage” has a specific meaning within our culture. While damaged and changed by some cultural issues, the basic concept of marriage remains one of the few defining pillars of our society and families. This pillar cannot be removed or shifted around more without adversely impacted the stability of our society.
Second, many of the needed “gains” for same-sex couples are already available. Tax benefits and health insurance are two exceptions- Availability for same-sex couples is often nonexistent or less favorable. On the other hand, inheritance, hospital visitation, Healthcare Power of Attorney and similar issues are currently available through existing legal frameworks. While these rights are more “automatic” for married couples, and it is some additional work for unmarried people, IMO these are often strawman arguments. Filling out a will or a POA is not prohibitively difficult.
Third, the inevitable complexity will cause disruption. There are many documented problems with current divorce laws, child support, etc. This will not be helped by an even more confusing array of personal contracts and religious ceremonies.
At least, that’s my opinion.
cs89 on May 28, 2009 at 2:04 PM
Why do you think you would never be able to preserve a concept of marriage? What is it that you believe you are being sold?
Zetterson on May 28, 2009 at 2:06 PM
It devalues marriage as churches have far less standing than government and with churches on the decline and government on the rise that is becoming ever more so.
MB4 on May 28, 2009 at 2:19 PM
No judge is going to force you to recognize anyone else’s concept of marriage, either.
MadisonConservative on May 28, 2009 at 2:24 PM
Hey…I know this is a thread about gay marriage, but try not to be so descriptive, OK?
James on May 28, 2009 at 2:27 PM
I read her post and still have no idea why. She just quoted other people. Does she outsource her opinions?
orange on May 28, 2009 at 2:33 PM
I’m with you all the way, Ed.
One of the unfortunate trends in the US is the loss of civil society. Progressives, and especially Obama, want civil society gone in favor of government. Conservatives have been falling into the trap that everything should be about government and legislation.
No, we should be promoting the power of churches, charities, civic organizations and movements (Tea Party) as setters of standards and as robust extensions of and even counterweights to the authority of government. A society that feels only the constraint of law and not of morality or benevolence and consideration for others is paupering itself.
Chaz on May 28, 2009 at 2:41 PM
Because any judge is going to throw out a clause of a contract which is based solely on religion when one spouse claims to no longer be part of that religion. Adultery is a grievous fault under most religions but it’s meaningless for no fault marriage. If I were partners with a guy in business and he went around doing our business with someone else it would cost him in court but not so for marriage.
In marriage no part of my personal earnings during the marriage are exempt in divorce proceedings but yet no judge would ever suggest a partner has to give half his vette to his partner if they split. These things will take precedence over my or a religions concept of marriage even if agreed to by both parties.
I’m being sold the idea that I or religious adherents will get marriage as they agree to and instead all I see is the government saying now marriage means any 2 people. This isn’t freer, it’s just the government now saying we will treat a union of any 2 people as if it were marriage.
Rocks on May 28, 2009 at 2:47 PM
Really? If I decide to offer family health insurance only to my employees married in the Catholic Church the state is going to allow me to do that? Or will I now be forced to recognize all civil unions? Will I be allowed as a Muslim Doctor to refuse fertility services to unmarried, as I define it, couples?
Rocks on May 28, 2009 at 2:55 PM
A parent raising kids has to worry about keeping their job (probably 2 jobs), paying property taxes, and helping their kids through school. Today jobs are less secure, education is more expensive and all levels of government look to increase taxes.
If a politician tells a parent that in return for the tax dollars he’s protecting their family by stopping the gays, it isn’t credible. Married gays aren’t anywhere on the list of worries for parents who navigate, sometimes precariously, through the challenges of helping their children grow and succeed.
dedalus on May 28, 2009 at 2:55 PM
So you’re basically saying the pro gay marriage loonies should stop whining and get out of the marriage business and go civil union?
I agree.
Why do you think they are such whiney,stopmy spit-bubblers?..is it just attention they want?
Itchee Dryback on May 28, 2009 at 3:27 PM
And if one of those parties decide the want the state instead of the church to settle matters then the state will just tell them no way? Yeah right. In other words they are in a civil union because the state is going to apply it to them anyway.
In a common law state they will be treated as married and will be treated as civil unioned after the state stops using the word marriage. This is what the problem is. I am going to get the state’s definition of marriage (now called civil union) whether I want it or not. The only thing being left to me or my religion to preserve is the word marriage to use as I see fit personally.
Yes, they won’t change, that is the whole problem. I am being sold the concept that marriage legalities will be left to the individuals and treated as other contracts instead I will get state defined marriage instead.
Rocks on May 28, 2009 at 3:27 PM
To subscribe the definition of marriage to either a religious belief or legal secular matter is a dishonest, disingenuous argument. Consult any dictionary from the scholarly Unabridged Oxford to any handy Webster and it is clear that ‘marriage’ is the act of becoming man and wife,some spell it out more definitively as a joining of a man and a woman. It is becoming obvious that words no longer mean what they actually mean but in this wacky Alice in Wonderland linguistic world of Humpty Dumpty “”When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.”
Patrick49 on May 28, 2009 at 3:28 PM
First rule of manipulating a population…First seize the language..then change the meaning of the words.
Anyone see any of that going on lately?
Itchee Dryback on May 28, 2009 at 3:38 PM
Corrected post:
o subscribe the definition of marriage to either a religious belief or legal secular matter is a dishonest, disingenuous argument. Consult any dictionary from the scholarly Unabridged Oxford to any handy Webster and it is clear that ‘marriage’ is the act of becoming husband and wife,some spell it out more definitively as a joining of a man and a woman. It is becoming obvious that words no longer mean what they actually mean but in this wacky Alice in Wonderland linguistic world of Humpty Dumpty “”When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.”
Patrick49 on May 28, 2009 at 3:59 PM
Judging from the comments, I think there is some need for some intellectual separation between “defining marriage” and removing marriage from the hands of the federal government. The debate here is not whether marriage should be inclusive of anything someone can dream up (from same-sex to polygamy to incest and bestiality) or restricted to a man and a woman; the question is whether we want there to be one, single unifying definition of marriage or if we would rather have multiple, competing and equal visions of marriage. If the government is going to use its power to impose a single definition of marriage that you don’t like (and it very well may do just this eventually), I’m not sure why you would want to keep relying on the government to fix marriage the way you want it to be. By removing marriage from the government’s hands, you preserve it to way you and your church think it ought to be.
The ability of the government to issue “partnership licenses” attaches no social acceptance or moral vision to the act. I don’t see why two really good but platonic friends couldn’t enter into such an agreement, not to have children and raise a family but to create a partnership of mutual support and cooperation. If these friends wanted to be able to visit each other in the hospital, share a tax return, etc., I don’t see how that fundamentally harms society. You can already do that if these friends are of the opposite sex (there are plenty of platonic marriages out there), why not same sex? What harm is there in that to heterosexual marriage, if marriage is able to be defined by religious establishments rather than the state?
Some one above said this solution is like “taking your ball and going home,” i.e., just quitting because you don’t like how the game is turning out. If the options are 1) the other players destroy your ball and decide to change the game midway through or 2) keep you ball by “going home,” I’ll see you at home.
LockeFox on May 28, 2009 at 4:25 PM
I’m willing to compromise. Let’s just get the federal government out of marriage. How’s that for middle ground?
JohnJ on May 28, 2009 at 4:36 PM
Hospital visits: As I keep saying, fill out an advance directive/POA, and anybody you name there can visit and/or make decisions for you if you can’t.
Tax return: The stated purpose of the marital/family tax benefits is family stability/support for children. We can argue about whether this is correct, or if these benefits should be abolished. Be very hard to get rid of the child tax credits, etc. practically. This is also one of the unintended consequences of the “partnership” contracts- might encourage people to enter into contracts more for economic than relationship reasons.
While marriage has suffered many problems as an institution, opening it up to “multiple, competing” definitions would have the effect of diluting any coherent sense of what a marriage means. Wouldn’t result in anything like several “equal visions of marriage,” IMO.
cs89 on May 28, 2009 at 4:37 PM
Jill Stanek mentioned that Robert George and Doug Kmiec will be debating today, 5p to 6:30p EST at the National Press Club:
She plans on live blogging. I don’t know if they’ll touch on marriage, but George is an absolutely brilliant guy.
Conservative Heavyweight: The Remarkable Mind of Robert P. George
INC on May 28, 2009 at 4:37 PM
You can also do that now..thru the same means. A lawyer.
So whats the problem? Why all the vile rantings attacks and smear campaigns by some of the militant gays?
They don’t want what you’re suggesting…Polly don’t want that cracker.
Why do you suppose that is?
Itchee Dryback on May 28, 2009 at 4:40 PM
Allahpundit, explain what the federal government did to the Cuban boy who survived the swim though his mother didn’t into Florida where his family was raising him according to his mother’s wish.
Allahpundit, explain please Branch Davidians at Mt. Carmel outside of Waco, TX. Before that there was Ruby Ridge, and the century of conflict between the federal, state and territorial governments prosecuting American polygamists.
Again, Allahpundit, explain what the state government did to the fundamentalist Mormons in Eldorado, TX a year ago.
You fabricate arguments based simply upon your own prejudice, as if ignoring the very current events that don’t fit into your own atheist pigeon hole. You don’t want religion around, it hinders your simplistic parameters; therefore in your argument you simply don’t acknowledge the reality of historical record and current events. But leave the traditional terminology of sacred marriage out of perverse revisionist clutches.
If there is to be new vocabulary introduced into contract law, it needs to avoid disrupting what marriage has always been and still is, the union of a man and a woman. You want to champion a new term that can apply to homosexual unions, go for it.
It is not the obligation of the heterosexuals to define what homosexuals are, just as it is not the right of homosexuals to presume that they are both special, different AND the same. They celebrate their differences. They got bored being “life partners” and “significant others”. Let them dig out whatever Greek words would specifically codify homosexual unions, or fabricate whatever syllables referencing homosexuality.
maverick muse on May 28, 2009 at 4:47 PM
I have wondered about this option too.
I do not doubt that same sex couples have high regard for each other and that sometimes that relationship may last a lifetime. But that is not the primary purpose of marriage. In fact it misses the point altogether.
Same sex relationships are between two people who are the same in every way. Their brains function the same. They have the same life experiences. They have the same body parts. The do not have to guess how the other feels they know from personal experience.
It is the same as if they married themselves. There is no basis on which they are different. No attempt to discover things about humanity they don’t know naturally. And because of that a same sex couple can never be complete. It is only half of a marriage.
The only thing same sex relationships have in common with marriages is that they have sexual relations with each other. So what. Sex does not a marriage make. You can have sex with yourself for that matter.
If “marriage” legally applies to this very different human relationship then we need another way to describe the completeness of what happens when the two essentially different parts of the human species come together in a life long commitment. A man and a woman add what the other cannot to a family.
Maybe this sort of nuclear option is the only way to preserve the basic building block of humanity as distinct from all other human relationships.
petunia on May 28, 2009 at 4:48 PM
I don’t understand what “government getting out of the marriage business” means, especially when government is still going to be involved in partnership contracts. All government is doing is getting out of one business and into another. Moreover, it means that government is tacitly sanctioning all sorts of unions and effectively treating marriage as an open-ended concept. The fallacy in Kmiec’s position is that he thinks that to leave the definition of marriage open-ended is to offer a neutral solution to the “problem” of who can get married.
Bill Ramey on May 28, 2009 at 4:57 PM
petunia on May 28, 2009 at 4:48 PM
“Same sex relationships are between two people who are the same in every way.”
No, not in personality, and not necessarily in upbringing. Perhaps you need to get to know more homosexuals to understand.
maverick muse on May 28, 2009 at 5:11 PM
But it’s not the ball that is the problem here, it’s the rules. The ref is not allowing people to take them home, just ripping out the page that says only a man and woman get to play and writing any 2 people can play. They will take the word marriage off the book of rules, but they are keeping the book and only what their refs say count in the end.
You wrong here. If you can rip out the first and most fundamental rule in the book, the one the very game was founded on, what logic is there to stop the refs from making any changes they wish to? Why must there be only 2 players? Why can’t a dad play with his daughter? There is no reason.
It’s not a question of harm and what is stopping the state from doing all this now, with it’s own rules, and keeping marriage just between a man and a woman?
And the state will enforce what I or my church think it ought to be in a court of law, saving only a violation of basic civil rights, no matter what the state or society thinks of it if the couple being married agreed to it at the time they married?
Rocks on May 28, 2009 at 5:15 PM
On the expiration date thing, I see it completely differently. As I see it the trivialization of marriage stemmed from people getting married who didn’t take marriage seriously. It was just the next step, we’ve been dating for X period of time, so we either have to take another step or break up, regardless of whether either party is actually interested in being with this person until one of them dies. This provides an alternative, let’s get “married” for 5 years, and see where we go from there. It makes it so that the “til death do you part” isn’t a joke, it only has to be there if you want it there, “til death do you part” would cease to de facto mean “til death do you part or whenever the hell you decide it’s time to wander away”.
And on the screwing people over, people screw each other with marriage already, so yeah, those seeking to do so will have a broader array of options. But, it’s like what you said, there would more than likely be standardized marriage contracts, people obviously would be free to alter them as per their own specific agreements, but in general if my girlfriend and I decided to get married, we could pick a standard contract that fits what we’re looking for and no further haggling would be necessary. Now if one of us had a bunch of money there would likely be more haggling, but that’s how it is anyways.
galenrox on May 28, 2009 at 5:17 PM
Yes let’s bring the time limit into marriage law. What reasoning then is used to say to a guy and a pro in a bar that you can’t enter into a marriage contract for a couple of hours?
Rocks on May 28, 2009 at 5:24 PM
A solution in search of a problem.
Civil unions.
Marriage.
Whats the problem?
Itchee Dryback on May 28, 2009 at 5:32 PM
While we’re at it, let’s throw out most of the laws in every state in the country that rely on man/women marriage and cause legal chaos so we can redefine a 5000 year old institution.
TTheoLogan on May 28, 2009 at 5:43 PM
maverick muse on May 28, 2009 at 5:11 PM
Maybe you need to know more women. They don’t think like you.
petunia on May 28, 2009 at 5:46 PM
You mean the Brittany Spears law?
petunia on May 28, 2009 at 5:46 PM
maverick muse on May 28, 2009 at 4:47 PM
FYI, this is an Ed post.
cs89 on May 28, 2009 at 6:03 PM
Lets give up a winning issue to pander to the left
PrezHussein on May 28, 2009 at 6:37 PM
PrezHussein on May 28, 2009 at 6:37 PM
!
entagor on May 28, 2009 at 6:46 PM
I beg to differ. You and I are both women, and I can assure you that our brains do not function in the same way (no two people’s brains do, not even identical twins). In fact, I’d say that my brain is more similar to my husband’s than yours, as we’re both non-neurotypical (unless you’re on the spectrum as well, then I’ll take that back). It goes without saying that nobody has the same life experiences as another. Sure, same-sex people have the same parts, more or less, but things can differ wildly between individuals. As to guessing how the other one feels – well, that would be a matter of being in tune with one another.
I look at it this way – in each of us, there are both male and female aspects (yin and yang). More yin in females, more yang in males, which is why men and women together make a balanced relationship. A male/male or a female/female relationship is still possible, but it wouldn’t be in harmony. Balance is ideal, but imbalance is possible and quite common in people generally. So yes, same-sex relationships are between similar people, but they are not similar in every way – it’s a bit disingenuous to state that.
Anna on May 28, 2009 at 7:46 PM
Exactly. How is this an argument against the government involvement?
radiofreevillage on May 28, 2009 at 7:49 PM
Itchee Dryback on May 28, 2009 at 7:54 PM
What we have here is convergence of radicalism which seeks to abolish marriage and the family and neo-libertarianis that seeks a governmentless society. Both want to return to an idealized state of nature that they see as superior to a rule/custom based society organized around a social contract.
Removing the government from the marriage equation will not lead to the flowering of human relationships. It will result in social anarchy and the destruction of modern society. I recommend a visit to a failed state like Somolia to see what happens in the state of nature. It is the war of all against all that Thomas Hobbes wrote about in Leviathan.
jerryofva on May 28, 2009 at 8:37 PM
Stop making sense.
Try to be more abstract and thinky.
Furrow your brow and subtly nod your head while placing two fingers on your chin before you post.
Just trying to help.
Itchee Dryback on May 28, 2009 at 9:11 PM
That’s a laughable argument, Ed, when just about every leftist political policy proposal in this country is framed as being “for the children”.
Even in a narrower sense, every County government in the State of New York has a large section of its Social Services Department devoted to Child Protective Services.
The “State” has never given up on protecting children, quite the contrary, in fact.
Kmiec’s argument is sophmoric, too clever by a half, and lacking in depth, as usual (how in the Hell was this guy ever a respected legal scholar?). Others here (and Robert George as well) have done an excellent job of poking holes in it.
I could be a true cynic and postulate that the real reason Kmiec threw this nonsense of a policy proposal out there was to give his new God, Obama, a political “out” so that he doesn’t have to continue to choose between keeping the masses happy on one hand, and keeping his core constituency happy on the other. A good little servant, that Kmiec.
And isn’t it time that Kmiec drop the pretense that he is a Catholic? Not because he works in the service of a pro-abortion President, nor because of his stand on gay marriage, but because his devotion to Obama is obviously so great as to violate, in fact, flagrantly violate, the First Commandment, a situation that to my understanding is incompatible with Christianity.
There’s nothing “Classically Liberal” about throwing away an institution that has been a cornerstone of civilzation as long as civilization has existed. And anyone who thinks that making such a one-sided “compromise” with the left will settle this matter for good-ask yourself this: Has that ever worked before?
Dreadnought on May 28, 2009 at 9:39 PM
I usually agree with you, but why on earth would you want the government to enforce even more dictates(”more detail”) on marriage? That’s the last thing I would want.
I’m married in the eyes of the government, and that’s fine and good, but I sure as heck wouldn’t want them forcing some sort of pre-marital contract on me in order for me to be married in the eyes of the law.
Just give them that chance – they will be happy to decide all kinds of things for couples, in advance!
You say, “Would the public accept the withdrawal of government from the blessing of marriages?” I never did think I was getting the government’s blessing by getting married. All we got from the government was a paper saying we were legally married, that’s it. What blessings we got were from the church, the clergyman who married us, and from God.
I don’t think what you are suggesting would have anything to do with “blessings.” (Perhaps you really meant something more along the lines of “legitimizing,” but they already do that.)
Instead, it would simply create more marriage licenses (contracts) than it does now, including as it would homosexual couples and whatever other types of couples, or triples, or whatever, that would qualify for the license in the future.
I don’t really care what they do. But I really, REALLY don’t want the government taking it upon itself to write up a more detailed marriage (or pre-marital) contract for me, that I would have to sign in order to be legally married.
But – I’m sure they would love that.
Alana on May 28, 2009 at 11:48 PM
Sure, they work when they do any work. With which you imply that they don’t. However, since they demonstrably work all the time this is an unintended compliment.
Thank you.
Look, Obama is assaulting the FisCons much harder then he’s assaulting the SoCons. We are the ones under attack here and in our moment of need we’re feeling abandoned. What’s more with people losing their jobs and government corruption/waste going through the roof we can get a LOT of traction here against Obama if you don’t abandon us in the middle of a firefight. Also, unlike a lot of the SoCon issues that are often not constitutional, the FisCons can rely on 400 years of contract law to back them up. The constitution is on our side in a lot of our core issues.
I’m not asking you to moderate any of your goals but pointing out that we’re mutually under assault and it makes sense to take the most defensible ground possible and use it to break the socialist advance. If we need a castle it will have to be established law and legal precedent. The SoCons have armies but they’ll just get massacred in the field if they don’t use them wisely. Pull back to the wall and help us present a unified front. After the democrat advance is broken we can sally forth and hit them in the field. But even then the only thing thing that will survive is future law and legal precedent that is consistent with constitutional law. In the end, gay marriage bans just aren’t going to hold.
You cannot hold that position forever. You might hold it for a few years but eventually you’ll lose it. The best you could hope for is that you’d hold it until the older voters die off leaving us with the younger voters that won’t support you. What you can do is make the whole area a no mans land. A killing field where no faction can gain ground. Political and legal scorched earth. You can deny that ground to anyone. You get the government out of the business and render the whole thing a non issue. And having done that your people can do whatever they want without fear of government interference… at the cost of not being able to tell their people what to do.
Really, it comes down to two choices.
1. Do you want to win a strategic victory or do you want to lose fruitlessly?
2. Do you want to be free or do you want to dominate other people?
Because if you want a strategic victory and the most important thing is being free to do what you want… then this is the right choice.
However, if you’d rather lose fruitlessly in the futile attempt to dominate others… then SoCons are bad allies and will have to be abandoned at some point. After all, if the SoCons are abandoning the FisCons already then how could you blame them for returning the favor? The FisCons won’t allow the SoCons to take them down with them if they want to go down in a blaze of glory.
We are in a multi generational political war here. There are going to be set backs, empty victories, bloody loses that turn into strategic triumphs, and years without end of heavy exchanges that do nothing to alter the status quo. If you don’t have the stomach for it then you can’t defend the wall. It’s just that simple.
Karmashock on May 29, 2009 at 12:45 AM
Actually, you’ve probably got that wrong. There are very few fiscal issues that come under Constitutional law. Name one fiscal issue right now that involves Constitutional issues.
Sounds like a self-fulfilling prophecy to me. Proposition 8 was just declared legal by the California Supreme Court. Every time the issue goes to the polls gay marriage is voted down. Every opinion poll I’ve seen shows that the majority of the population opposes changing the definition of marriage to allow same-sex marriages. So yeah, just give in. Sure.
Young people get older. People change their views as they get older. If you polled younger people in the 1980’s, when
I was in my 20’s, you would find that their views were quite a bit farther left than the public at large. At my college, Reagan was no more popular than Bush II. Maybe even less popular, actually. I know I hated him.
I hardly think restricting the definition of marriage as being between a man and a woman qualifies as dominating other people. A sense of perspective is really needed here.
How are the “SoCons” abandoning the “FisCons”? In fact I reject the idea that opposing gay marriage makes you a “SoCon” at all. If it does, then the majority of the country is “SoCons”.
I don’t think the situation comes down to “SoCons (taking) the (FisCons) down in a blaze of glory.” Seems like a kind of silly way of looking at the situation, but even if it wasn’t, good luck with it, because nearly 50% of the households in this country don’t even pay income tax.
Telling people to have the “stomach for it”, after you’ve just admonished them to abandon their core principles is hardly very convincing or consistent. In your preferred mode of analogy, you’re basically asking a larger army to drop their guns, and run back to be a human wall in front of your smaller force. I doubt you’ll get many takers.
Dreadnought on May 29, 2009 at 1:33 AM
Oh and one other thing Karmashock. I would put forth the proposition to you that most “FisCons” are, in fact, fiscally conservative because of their socially conservative views.
It’s not an aversion to paying taxes, or their love for some abstract notion of free market economics, nor is it their devotion to the Austrian School, that makes them fiscally conservative.
They are fiscally conservative because they know, instinctively, that money = power, and the more money you give to the government the more power the government has over your life, to dictate how you live.
And they know that the career policy makers and bureaucrats that get that power are, by and large, far from being socially conservative, and would like to impose a social agenda on them that they find abhorrent.
And in my experiences in over 20 years of working for the government as an economist and planner, I can tell them they are basically correct.
So your FisCon/SoCon scenario is, in many ways, a false dichotomy. We are all in this together. Like it or not.
Dreadnought on May 29, 2009 at 1:55 AM
The first problem with this idea is that marriage is not a contract. The government also has no business “enforcing” marriage. The reason for divorce is no because the government is dissolving a contract, but because the couple are splitting up, and they ave to make a public declaration of it n order to protect their rights. For example, without the divorce, the husband is still responsible for his wife’s debts, and vice versa. Also, the newly divorced couple has to make provisions for any children The divorce is simply the state recognizing that the relationship has dissolved.
Yes, there are many similarities to a contract, but there are also many differences. Just to start with the obvious, a contract involving sex would be considered prostitution. A marriage is expected to involve sex.
How lame is it to run away from homosexuals who want to claim marriage for their own by suddenly declaring, “we’ll just get government out of the marriage business?” Frankly, if we can’t stand up as a nation and say, “No, you don’t get to make everybody else in the country change their definition of marriage just to please you,” then we’re pretty much unable to stand for anything.
Homosexual marriage is the ultimate expression of statism. It declares that we are creatures belonging to the government, and that our standards of morality can be dictated by the government.
And let there be no doubt, the entire reason for pushing homosexual “marriage” is because the government can supply the one thing these activists want: the force to make people accept them as equal … or else!
ThereGoesTheNeighborhood on May 29, 2009 at 2:06 AM
So you think you’ve covered all the bases?
Are you sure about that?
Are you willing to bet your life on how well you’ve anticipated every possible problem?
Are you willing to bet the lives of generations to be born on how well you’ve anticipated every possible problem?
Here’s the kicker: it doesn’t matter how you answer those questions, or how confident you are in your answers. I’m not willing to let you make that bet for me and all my descendants that may ever be born.
We’re not just talking about the joining of a few couples in a relationship. We’re talking about the families that result, the children that are born and raised, and become the future citizens of this nation. The family is more fundamental to the success of the United States than the government or even the churches. In fact, that last statement is backwards. It’s more accurate air to say that the proper function of the government is to protect the families, and the proper role of the churches is to build up the families.
I’ll note in passing that the Bible position on the family is plain enough, as you know. It declares that God created us male and female from the beginning. According to the Christian — and Jewish — faith, marriage is the first institution, before schools, before governments, before even churches or synagogues or temples. Churches are about as central to Christianity as anything can get, but the family still has first place in the Christian faith.
But far beyond that, family is so fundamental that it is found outside of Christianity, in faiths and nations that share no other Christian beliefs. Paul and Silas were said at one point to be “turning the world upside down.” But did the newly advancing faith radically redefine the family? No, the families were the same before and after Christianity came.
But you would let a few judges say, “we know better. We’ve got it all figured out.” Apparently, all it takes to ignore the most fundamental facts of human existence is an argument that marriage violates your particular reading of the Constitution unless it’s allowed between two guys or two lesbians.
Of course, the argument is made by those who pretend that two homosexual men or two homosexual women are just an “alternative lifestyle.” It’s not surprising then that those who ignore biology would have no problem ignoring the potential impact of the actions they recommend.
ThereGoesTheNeighborhood on May 29, 2009 at 2:51 AM
You’re making a promise you can’t keep, with no real reason to know it’s correct.
And you’re naive if you truly believe that. The only reason it matters so much to gays to be able to marry just like a normal couple is to force people to accept them as normal couples. Only the government can force people to do these things, so they appeal to the government.
Otherwise, they would just have a marriage ceremony and reinforce it as needed with contracts and powers of attorney. And if were common enough, they would advocate that the government set up a standard civil union statement that accomplished all these goals at one time.
But this would not force others to accept them as truly married. So it’s not good enough.
The only thing the government can bring to the table is force, and that force will be used.
ThereGoesTheNeighborhood on May 29, 2009 at 3:03 AM
I’m sick of hearing about this crap 10x a day. Apparently, Ed has turned RINO.
Blake on May 29, 2009 at 4:07 AM
Seeing as how gays already have the ability to put in place by contract all the things they want, save for the few places in the tax code that it is mentioned in regards to children (and just what is up with that ‘marriage penalty’ thing, anyways?), the objective is to force people to say ‘marriage’ for gays, not to get a ‘civil right’.
Take away the specific tax benefits, lower the taxes on everyone and let States decide what is and is not right for the society of their States as individual States. Then gays could get ‘married’ in any church that will take them (for that is something that is left up as a decision between them and their beliefs) and if they want the problem of contract law (which goes back to the restrictions placed ON the Garden of Eden, in case folks missed that) then so be it.
I reserve the right to scandalize my neighbors so long as I do not harm them and the right to be scandalized by their actions so long as they do not harm me or mine. Trying to get the law to force society to change its word definitions is authoritarian in the extreme. It is those seeking to excuse rape, murder, theft, invasion of property, and otherwise seeking to condone such behavior that I detest as that is affront to all of society in which individuals are held responsible for their actions. Use the government to try and tell ME what marriage is and that I must ACCEPT the government’s definition is lunacy. What people do on their own, in the privacy of their own home, so long as others are not harmed… yup, I’m scandalized. So what? I’m sure toting around a Mosin-Nagant scandalizes them, too, and it isn’t even loaded… but that does let them know I’m a citizen not a subject. Enforcing my rights is my business. Stop trying to tell me how to think, how to act, what I must and most not accept, what foods to eat, and what is ’safe’ activity as I’m a damned sight better set up to determine that than any judge or legislature. I reserve those rights under our Constitution in Amendments IX and X. And I’ll use Amendments I and II to back them up.
Or there will be hell to pay.
ajacksonian on May 29, 2009 at 7:14 AM
I’m listening to this 7 year old boy who wants to become a girl and attend Catholic school. This is where all this crap is heading.
Blake on May 29, 2009 at 8:39 AM
Maybe they should copyright the word “marriage” and only allow those they deem fit to use it….
DL13 on May 29, 2009 at 9:10 AM
But, of course, you don’t want government totally out of the marriage business. You want them out of it just to the point where a specific sort of marriage that you endorse but the majority doesn’t can be legitimized.
If the government has laws against incestual or polygamist marriage, they are in the “marriage business”.
Buddahpundit on May 29, 2009 at 9:38 AM
The end goal of the relative moralist is to destroy the family. We should focus more on protecting marriage rather than eliminating the concept.
chansen9 on May 29, 2009 at 9:38 AM
If we had a wise, enlightened and responsible government that was interested in the welfare of society, we could trust them with defining marriage. But we don’t have one of those, and we’re not likely to get one any time soon.
I have been saying we need to get government out of the marriage business for years. I wanted them excluded from my own marriage ceremony 19 years ago, but my Priest wouldn’t stand for it.
Government pursues it’s own agenda, using marriage for it’s own purposes. These purposes, more often than not, weaken the institution, which survived quite well for Millenia without government sanction. It is time to cut the tie, and let people marry in their own way, without government interference.
gridlock2 on May 29, 2009 at 9:57 AM
Those who desperately want Prop 8 seem to leap to the argument that it violates a certain protected group. Ok, seeing as everyone seemed to forget that Prop 8 DID pass in the democratic process that our great nation has, I’ll join the masses and forget that it passed in the name Of A Protected Class (oh, and we’ll also forget for a moment that “religion” counts as a protected class).
So what does this open the door to? Regardless of who I am, can I demand a Bar Mitvah from my local rabbi? So what if I’m not a 13 year old Jewish boy who doesn’t believe one bit in Judaism. Do I have a lawsuit? Can I stand in front of grocery stores with my petition to get a Proposition on the next Ballot demanding that EVERYONE has the right to be Bar Mitvah’d?
ocbrat on May 29, 2009 at 10:20 AM
Yes, you can. You probably won’t be too successful in your petition, but you can legally do this.
Dagnar on May 29, 2009 at 10:25 AM
Ed,
neither…nor….
either…or…
The other side is looking for a solution in which the state not only guarantees their right to enter into a two-party contract, but also forces other private individuals to recognize those contracts. That force acts counter to the forces associated with Freedom of Religion and Freedom of the Press.
If I’m an employer in California and the health plan I offer employees doesn’t include coverage for “domestic partners”, I’m violating California law. So, in California, I as an employer am required to recognize and fund relationships between consenting adults which I consider counter to my religion.
If the rights created by these types of contracts did not implicitly include other people such as employers, landlords, and businesses, I would be whole-heartedly in favor. But they do, and therefore I’m not.
unclesmrgol on May 29, 2009 at 10:43 AM
The state already does enforce an implicit pre-nupt upon you. To understand this, examine the divorce laws. It’s those laws which explicit pre-nupts are attempting to abrogate by replacing the default contract with one favorable to one of the parties.
unclesmrgol on May 29, 2009 at 10:55 AM
Time to get Ed outta Minnesota – what passes for “conservative” there 99.9% of the time is “a liberal who thinks his taxes could (might, maybe)be just a tiny bit lower”. i.e. “Conservative” in Minnesota = one-issue, nominal-only Republicans.
There are a few notable and fine exceptions, e.g. Michelle Bachmann, who doesn’t sway with every PC breeze that comes along.
whatcat on May 29, 2009 at 10:56 AM
As a former Minnesotan, I’d respectfully say you’re woefully misinformed. (Are you from MN?) Former governor Jesse Ventura – an Independent who leaned right. Current governor Tim Pawlenty – a Republican. Most people mention Pawlenty’s name with the phrase “future of the GOP” and a good number of people view him as a definite candidate for 2012. And then as you mentioned, Michelle Bachmann. The reason why there was/is such a backlash against Norm Coleman is because he tied his political fortunes too close to Bush – a critical mistake that opened the door for “Stuart Smalley”.
Before you paint a whole state as “a liberal who thinks his taxes could (might, maybe)be just a tiny bit lower”. i.e. “Conservative” in Minnesota = one-issue, nominal-only Republicans.’ you should get your facts straight.
Just out of curiosity, what state/bastion of conservatism do you hail from?
Dagnar on May 29, 2009 at 11:43 AM
On a side note, I think we’re going to find in 10-15 years when kids like him/her can speak with their own voices, that many of these “young transsexuals” had serious sexual trauma in their youth that was glossed over. A kid that young IMAO does not have enough of a sense of their own sexuality to even think about being another sex. Something sexualized that kid at a young age.
Now I know about boys who are feminine, many of whom turn out to be gay or trans, but their behavior shows more in the way of some feminization of the brain and biases towards feminine-type behavior—but they still care more about their teddy bears than what is or is not in their pants.
Sekhmet on May 29, 2009 at 11:46 AM
LOL, only if “the future of the GOP” is to be “Obama-lite”.
Pawlenty is a good example of my point – he’s for keeping taxes down, but otherwise is a total Nanny-Statist liberal. Although the Dems wouldn’t have much too worry about anyway if out-of-touch GOP elitists were to choose him for “bigger & better” things; if we could bottle him we’d end insomnia forever. He makes the comatose seem electrifying in comparison. Not a bad guy, just politically misguided for the most part and awful, deadly dull.
Glad you were able to visit my life-long Land O’ 10,000 Lakes state-digs in the past, I’m a big tourism booster. Come back again sometime.
whatcat on May 29, 2009 at 1:06 PM
Ah, I actually worked with Tim Pawlenty at the law firm of Rider Bennett (in Mpls, now defunct) before he became governor, so I think I might know the guy just a wee bit better than you do. Perhaps you could actually give examples of how he’s a “Nanny-Statist liberal”?
I lived in MN for 36 years (which might be longer than you’ve been alive) before moving over to WI in ‘99, so I would hardly characterize myself as a “tourist” to the state. Despite not still living in the state, I know your governor better than you do. Just out of curiosity and to elevate the debate here, who do you think would be the best candidate in 2012?
Dagnar on May 29, 2009 at 2:48 PM
Yes, well, Ed said “in more detail.”
Alana on May 29, 2009 at 4:27 PM
Property rights.
Fifth and fourteen amendment are pretty clear on the issue.
It doesn’t matter… You’re only maintaining this by commiting political resources to it on an ongoing basis. Furthermore, if you look at the demographics you can see that it won’t hold in the next generation even if you can keep it up for years.
Eventually you’ll lose. It’s inevitable. By taking it out of the government’s control you get the best deal that will last. Doing what you’re doing now just means you’ll get a worse deal later and really will have accomplished nothing.
I’m tired of being allied to people that don’t understand strategy. This isn’t about values or politics etc… it’s about smart versus stupid. I’m not saying you’re dumb, I’m saying it’s stupid not to use this moment to achieve a strategic victory. The prop 8 vote is NOT strategic. It’s tactical. It will not last. You won a battle… NOT a war. You have an opening to make a strategic victory… and you’re letting it go for NOTHING.
There are trends. Old people today don’t have the same values as old people 80 years ago. If anything you find this backs me up more then you. The FisCons tend pick up more votes as people age because they see that socialism doesn’t work then you see people suddenly deciding to ban gays from things. Can you show anything that shows that younger people change their views as they get older on gay issues? I looked and couldn’t find it. I did find them changing their minds on economic issues.
You’re telling other people what to do and how to live their lives. Why do you care what other people call their marriage? Why does that effect you at all? I don’t see the obsession with the issue. If a guy wants to marry his parrot then let him do it. By taking it out of the government’s hands we make it impossible for them to mess with people on the issue. The price is that you lose the ability to mess with them as well.
Leave them alone. If they want to “say” they’re married then so be it. Because marriages would be private they wouldn’t actually be legally married because it wouldn’t exist as a legal concept. They’d have a contract that basically equaled the same thing but it would have no religious significance.
Oh please, there’s a massive civil war in the middle of the republican party right now largely because the SoCons are trying to take over. Who do you think you’re fooling? This website is full of examples.
Exactly, which lets them buy votes. They use those votes to destroy your issues as well as mine.
If you don’t think you’re mutually imperiled by this then you’re fooling yourself.
Europe was FULL of Christians and it went atheist in a heart beat. What Europe didn’t have was FisCons… it didn’t have the independent spirit. That has guarded this nation. The religiousness of the SoCons is no defense and if that’s all you had it would have fallen to the socialists decades ago.
Seriously, compare the two cultures over time. They had lots of catholics and protestants. They lost their religion to the state. It is only by opposing government expansion and intrusion that we have slowed the process in the US. This is not to say that the SoCons are useless… merely less significant then they think they are… these messianic delusions profit no one but your enemies.
First, I didn’t tell you to abandon anything. I told you to take defensible ground. There’s a universe of difference. We’re under assault here and you’re in the middle of a field… you’re not even on high ground. I’m telling you to come back to the wall and build something that will last. Instead, you’re screwing around in the middle of the field with a big army of supporters feeling good about yourself… not taking any time to consider that said army is going to expire leaving you with no way to hold that ground and you’ll lose everything.
I’m telling you how to win. And you’re getting mad at me because you’d rather go down in a blaze of childish glory then win.
As to stomachs, all of this requires patience. I’m pointing out that we’ve been fighting with these people for generations. You can’t expect anything to change overnight. In long battles the two things that are the most important are not losing and attrition.
Just something to consider.
============================================
A contract could be written in different ways. Assuming the contract had them share debts… if the contract were dissolved they would still be sharing debts that were incurred prior to the dissolution. That said, they could keep their finances separate if they wished.
That’s not true. A contract can say pretty much anything. You can make provisions for children and what should happen if the contract is dissolved.
Well, first while marriage used to include some concept of a right to sex it hasn’t for a long time. So putting this in as a requirement isn’t really reasonable.
Second, prostitution sex for money… a marriage contract is sex for family. It’s a fundamentally different relationship.
Second, I’ll just state for the record that I don’t mind prostitution ethically. I know that offends many SoCons, but I’m a libertarian and I just don’t have a problem with consensual relationships. Again, a marriage contract is not prostitution in any case so it’s a moot point.
Why do you want the government involved in this anyway? Look, your political allies support a lot of religious issues they don’t care about because it helps the SoCons. That is something they do FOR YOU and ONLY for you.
Something we want is smaller government. We want this. We want the government OUT of everything it doesn’t need to be a part of. Why do you want the government in this?
It isn’t a loss to do this… it’s a DUEL win.
You win AND we win. The democrats lose. You’re killing us here… Come on.
==================================
Well… getting government out of the marriage business would be the opposite of statism… so…? What is your problem with that?
Again, why not get the government out then? I’m having a really hard time seeing why you can’t see this is a victory here.
Karmashock on May 29, 2009 at 4:29 PM
Ed Morrissey wrote:
Oooh…deja vu!
When Los Angeles Deputy DA Pat “Patterico” Frey — one of my fave bloggers — came out against Prop 8 in November of last year, I responded by saying, among other things:
In January 2008, I also voiced my opinion that the biggest single death stroke to marriage as we knew it was no-fault divorce, which then-California Governor Ronald Reagan — still the nation’s only divorced man elected President — signed into state law in 1969. By 1983, all other states followed suit with some form of no-fault law, resulting in one spouse being able to unilaterally end a marriage.
So how do I disagree with you and the whiplash schizophrenic Kmiec, Ed? Because the reason for instituting no-fault divorce was not to “g[i]ve up protecting marriage and children,” it was a misguided effort to protect children and the integrity of the court system.
The thinking at the time was that too often, unhappy married couples with no legitimate statutory reason for ending a marriage would conspire to commit perjury so that a judge would grant a divorce, branding one of the parties as an adulterer or “cruel” in order for both to escape the union. Another effective selling point of no-fault was that children were damaged by witnessing their parents savage each other in court, trading dubious allegations of infidelity and abuse, being used as human dodgeballs in a spectacle open to the public.
Before trashing the concept of “government in the marriage business,” think about Newton’s third law of motion: “Every action has an equal and opposite reaction.” While politics and law aren’t physics, they are alike in that no societal change occurs in a vacuum, and that there are always unintended circumstances. What Kmiec is proposing in trading marriage for “civil license” is “making the perfect the enemy of the good” (which, ironically, his new messiah Obama likes to repeat at strategic moments). Is the concept of “civil license” perfect? Is it just as good as marriage? If not, why pretend it’s a solution?
You’ve already shown, Ed, how the ostensibly well-intended move to no-fault divorce led to the erosion of the institute of marriage. Remember also that the key component of 2008’s California’s Supreme Court In re Marriage Cases decision legalizing same-sex marriage was the 1948 CA Supreme decision in Perez vs. Sharp, which declared anti-miscegenation laws against the California Constitution. If someone had said in 1948 that a state Supreme Court ruling declaring whites and blacks could marry could someday lead to a decision that men could marry men and women could marry women, that person might have been called a racist, a bigot, a lunatic, or all of the above. What such a person should have been called is a visionary.
So I invite you, Ed, and those who agree with Doug Kmiec (or the unrecognizable Kmiec Obamabot pod-person who replaced the original who supported Mitt Romney) to take off the rose-colored Foster Grants and just T-H-I-N-K for a moment. Ponder what the unintended circumstances might be in American society. Try to be a visionary. Then come back and tell me why you think such a monumental paradigm shift would be worth the potential for damage.
L.N. Smithee on May 29, 2009 at 4:58 PM
Ed is a RINO
PrezHussein on May 29, 2009 at 4:59 PM
PrezHussein is a WINO.
L.N. Smithee on May 29, 2009 at 5:05 PM
When the world is going nuclear (literally) and our wonderful government is spending the next 3 – 4 generations into debt, do we really care who’s tossing who’s salad?!? You’re not automatically a RINO just because you believe we have more serious issues we should be dealing with besides whether two dudes can get hitched. Who f***ing cares?
Dagnar on May 29, 2009 at 5:06 PM
Y-a-w-w-w-n … Such a tedious argument.
Tellya what, Dagnar: Tell me what I can do to stop Kim Jong Il from testing ICBMs and nukes and I’ll be right on it. Until then, as long as the Gay-stapo is waging war on my values, I’ll be fighting back.
L.N. Smithee on May 29, 2009 at 5:25 PM
Apparently the handful of angry homos who don’t seem to care about those other issues. Whats the basis for an individual to ignore their values just because some people obnoxiously flap their arms and scream, cry, and threaten? F’ that!
Is it your view that people can only work for/against one issue at a time?
On that point what would you guess the a lot “Mo” rabble rousers positions are on those other issues?..Pro strong military?..fiscal responsibility?..getting government to stop trying to make social and educational decisions against the will of the majority of the people? etc.
Itchee Dryback on May 29, 2009 at 5:25 PM
I would agree with you. However, contracts can easily have consequences written into them if they’re not mutually dissolved.
I don’t see what you’re losing here that you haven’t already lost. What you could do is have a standard ‘Christian’ contract that is written a certain way and then all christians could get those legal conditions put on their union. You could have 1850’s style marriages if that’s what you want… or 15th century marriages… So long as both sides sign I’m cool with it.
This is an interesting question that I take very seriously. However, I’ve been unable to think of a strong negative consequence of this legislation. Please help me out here.
Seriously, what do you see as the big problem?
Well, for one we’d probably get more weird marriages. We might get men marrying five women… or vice versa… or ten men marrying each other.
I think the people that take marriage less seriously would probably get married even less especially since lots of them are married by common law and not by any signing of a contract. An assumption of this move is that you won’t be automatically married just because you’ve been living together for a long time.
All of that said, they wouldn’t actually be married even if they got a contract that shared finances and rights. What’s more there’s nothing to stop people from doing this now anyway. Sure, you can’t get married to multiple people but you can share rights and live with them… which is defacto the same thing.
Those are just negative consequences though. I can see some positive ones. For example, it will cause marriage to become a highly personal and private contract that will become much more unique. Everyone’s marriage probably will be a little different. Think of how music interests have atomized… that is everyone has different tastes instead of everyone following the radio pop sheet. Our whole culture has diversified through the internet as well. Are we talking about the big national newspapers or the local paper? No, we’re a collection of like minded people from all over the country that have come together to talk about issues that interest US. Well, marriage can become the same thing. You can have lots of different types of marriages and that’s a two edged sword. Sure, it means polygamy might start happening but the self respect of women is likely to contain that. After all, how many women want to be married to one guy? Maybe if he’s a rockstar… but even then it’s questionable.
On the flip side you could make much stronger marriage contracts. For example, you don’t like no fault divorces? Spell out the conditions for dissolution of your contract and specify penalties if the contract is voided improperly.
You could also make some child specific penalties. For example, the parent that voids the contract improperly loses custodial rights.
So, I’ve taken the effort to think about your idea a bit honestly. I’d ask you to do the same in return. THINK. Think of the good you could do with the ability to write your own contract?
Karmashock on May 29, 2009 at 5:38 PM
Oh, I’d just like to state for the record that I don’t really care too much about this issue. I’m not going to throw a hissy fit either way. I just think it’s a strategically clever move that could save your bacon in the next ten to twenty years. Don’t say I didn’t warn you when support fades and you’ve made no preparations for that inevitability. Look at the constitution. How often has that saved us? That is a lasting defense. Sure, it’s been damaged somewhat by the Supreme Court reinterpreting it. But you don’t even want to know where the populists would have taken us without it.
You need a lasting defense. You need to build something that won’t wane with the fickle winds of public support. Build the strongest thing you think you can build.
I think that kicking government out is the most powerful thing you can do… but perhaps I’m wrong. Do you think you can accomplish more? Or am I right and your master plan is to camp out in the middle of the unprotected plain with an army of supporters and lose the fight to attrition? You need to be smarter then that.
Karmashock on May 29, 2009 at 6:15 PM
Ed:
You don’t may ANY sense on this one.
Government can’t just stick to enforcing contracts, and this’ll just work itself out. Contract do not exist in the absence of law (i.e., legislative definition of what the law is), and “marriage” as with any type of “contract” that government enforces, must be defined.
Without government definition there exists no such thing as the marriage “contract,” other than a purely religious marriage.
seanrobins on May 29, 2009 at 6:26 PM
…think of the damage and legal ball of snakes that one could do with a lawyer and a contract.
One question…WHY?..why go through all those mind games and Pandoras box of unintended consequences? Why bother..its not there aren’t other issues to deal with.
What is the problem with Civil Unions?
Why the focus on dismantling traditional marriage…whats the point, and more importantly, whats the motivation?
Itchee Dryback on May 29, 2009 at 6:30 PM
I’m a 5 star general, the world chess champion and King Of The Illuminati, actually.
Actually, I’ll let the Wall Street Journal help get you up to speed.
Pawlenty’s Record
This quote from there likely best sums up the problems Pawlenty has: “Mr. Pawlenty delivered the remarks that probably best reveal his views on the environment. “It looks like we should have listened to President Carter”
You’d have go back past Pawlenty to at least C. Elmer Anderson to claim age rank – actually.
Now folks can go on about the actual topic that’s up for discussion here; Ed (and AP’s) illogical bizarre drive to undermine-redefine marriage – an agenda which has always been something Americans have rejected at the polls.
whatcat on May 29, 2009 at 6:55 PM
I think there are bans on gay civil unions in about half the states.
dedalus on May 29, 2009 at 7:15 PM
I have two problem with your otherwise thoughtful response.
1) When I point out that marriage is not a contract, you simply spend more time detailing how a contract could deal with traditional marriage issues. I’m willing to concede that a contract is an almost infinitely malleable concept, and could be structured to look like a marriage in many ways. But just because a contract can be drawn up to imitate marriage doesn’t mean that marriage is just a contract, any more than constructing an artificial diamond from glass makes it the real thing. A contract, broadly speaking, formalizes an agreement to exchange something for a consideration of something else. You can add any number of provisions to it, but at its heart, it is a transaction of sorts. Failure to keep your end of the contract releases the other party from his.
Marriage is not that. Marriage is not a man agreeing to accept certain responsibilities (duties) in exchange for the duties his wife will be responsible for. A marriage is far more than that. The husband is supposed to love his wife when she is not especially lovable, for example. It is madness to discuss the government trying to enforce a marriage contract. (Talk about asking for bigger government!) All divorce does is to formalize what has already happened between husband and wife. It does not dissolve a contract. In fact, a divorced man still has responsibilities to his ex-wife, generally if not exclusively expressed in some sort of alimony obligation.
2) The second problem I have with your argument goes to the core of the issue. You repeat over and over again that you want smaller government. You even ask why I want the government involved in marriage.
And this is totally wrong, and completely twists the question into the opposite of what it should be. To have homosexual “marriage,” the government will have to take an active role in defining marriage. Never before in our history has the government taken such an active role in a private relationship, or considered so fundamentally altering the basic unit of society.
You want smaller government? Tell the government to leave marriage alone. What business does the government have to decide for everybody that marriage now includes homosexual relationships?
Because the question is not, and never has been, whether homosexuals are prevented from marrying. The question is whether a homosexual relationship is itself a marriage. We’re not talking about establishing rights for homosexual individuals, but about establishing that homosexual relationships are marriage. It’s something the government has absolutely no business intruding itself into.
Again, just to be absolutely clear, no one is advocating that the government go out and prevent homosexuals from having a “marriage ceremony” in any venue, civil or religious, that they would like. People can do what they like, as they always have. But we are under no obligation to recognize a homosexual ceremony as constituting a marriage.
Just in case there’s any real doubt, try proposing a “gay marriage” law that includes a right of conscience for anyone to refuse to acknowledge the legal marriage if they object to it, on religious grounds or not. See how many activists calling for “gay marriage” will be happy with the law. Oh, wait! They already tried that in New Hampshire. Just how far did it get, again?
The only way they want to have “gay marriages” allowed is if that law has actual teeth in it. Nothing else will do.
ThereGoesTheNeighborhood on May 29, 2009 at 7:45 PM
I think you’re right, but all things realistically considered, it would seem like swaying the electorate to accepting civil unions in order to protect traditional marriage while providing equal legal protection in contracts and such, would be the the “smart” choice. I thought with Obama, we were into a “Smart Decisions” mode?
Itchee Dryback on May 29, 2009 at 7:47 PM
My point is, pick your battles. Gay people are here – they are not going away. They’re going to live together, they’re going to possibly move into your neighborhood, and possibly work at the same place you do. You’re not going to make them go away or suddenly become straight because they can’t get the same rights/recognition as straight couples. I’m blown away by the people here who feel so incredibly threatened by the thought of two gay people marrying. How does that personally affect you? I guess if you feel that strongly against homosexuals and it’s such an effrontery to your values, then you should be working to make it illegal and have them thrown in jail.
Dagnar on May 29, 2009 at 9:17 PM
Dude, you’re a trip and I find your replies amusing. My point in bringing up my past work association with Pawlenty is that I’ve met the man, talked with him, and have seen him work. I give that a little more credence then someone who’s only experience is what they’ve read about the guy or seen on TV.
Wow, you win the “King of MN” award for having lived there longer than I have. I was just responding to your snide comment about visiting as a tourist.
As far as the actual topic at hand, you disagreed with Ed’s perspective of how to handle the gay marriage issue with the admonition that it’s “Time to get Ed outta Minnesota”. (As if he needs to broaden his horizons). I find that comment amusing because Ed’s actually lived outside of MN (as have I) while you’re a proud “life-long’ Minnesotan. Living someplace else like California or Madison, WI (”The Berkeley of the North”) will give you a whole different perspective on MN politics. You don’t know how lucky you have it there. (I do).
Dagnar on May 29, 2009 at 9:37 PM
I don’t think you’re understanding the positions or their motivations…at least not mine. At all.
Seems you’re stereotyping badly. Do you think the only reason someone could hold a position against gay marriage is because someone is “anti-gay”..or something?
Have you actually read the posts with an open mind?
Itchee Dryback on May 29, 2009 at 9:38 PM
If the position isn’t about being “anti-gay”, then what is it? Assuming that you don’t have anything against gay people, why do you hold this position?
Dagnar on May 29, 2009 at 9:43 PM
Comment pages: « Previous 1 2 3 4 Next »