Separation of Marriage and State?

June 29, 2013 | 44 comments
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Mormons have this fascinating relationship with America and Americanness. On the one hand, we often seem to be among the most American of Americans. Mitt Romney’s problem as a presidential candidate was not that he was weird, but that he was too normal (in a white, 1950s kind of way). To the extent that people thought he seemed alien, it was more because of his money than his religion. American political principles seem to even be more or less written into the Book of Mormon (of course, some similar material is in the Bible, too, including a denunciation of monarchy colorful enough for even Jefferson to admire). Joseph Smith himself ran for President, and the primary reason for his assassination may have been the fact that as a candidate, he spoke eloquently against slavery.

On the other hand, before the church was twenty years old, the main body of Mormons had been essentially driven out of the United States at least twice, and the Mormon homeland in the Rockies was a part of Mexico when the Saints chose to build their Zion there. We fought and won a carefully restrained guerilla war with the Federal Army to maintain our independence and perhaps even our existence as a people and a church (mainly just by disrupting their supply chain and transportation, and arranging for them to enjoy some nice winter weather outdoors). We then treated them very kindly during their visit to Utah, while making it clear that if they fired one shot, they would all die of starvation in the desert, just like we almost had when we first arrived there. The Book of Mormon has some rather impressive stories of nonviolent resistance we may have learned from . . .

So, we Mormons have a history of needing to be creative in managing our relationship to the U.S. government, and of wanting to see restraint in the use of government power. In this context, the idea of a separation of marriage and state may seem rather appealing.

Is it a good idea for a society to regard marriage as a matter of no concern for public purposes? Absolutely not. Marriage is too important to human well-being, especially the well-being of children, for it to be seriously presented as a merely personal choice. And since every human being is a child first, and is formed for adulthood as a child, the importance of marriage can hardly be exaggerated.

However, when a society is as confused and divided with regard to what marriage should or shouldn’t be as ours is right now, the downside effects of getting government out of marriage may be a lot milder than the downside effects of one side in the controversy trying to impose its view of marriage on the other. Anyway, the authority of the civil institution of marriage has already been eroded to the point of minimal effectuality. Though most young people in America today want to be married in due time, a disturbingly large number regard marriage as having become essentially obsolete in our society (though this should be no surprise given our media culture).

Further, if we didn’t already suspect as much, the recent Supreme Court rulings on marriage seem to confirm that our court system is incapable of speaking sensibly about why marriage matters, or of even engaging in a serious conversation about it. Like religion, marriage is not an individualistic or consumeristic institution, and our public discourse at the national level rarely seems to understand anything more than individualism and consumerism.

Many of the American founders believed that religion is vitally necessary for civil order, and paradoxically, for that very reason argued that religion should not be established by the state. They believed that a religion separated from the state would be more pure and vigorous, more able to exert its beneficial effects, than a religion entwined with state power. Perhaps the same is true of marriage.

44 Responses to Separation of Marriage and State?

  1. Howard on June 29, 2013 at 9:16 am

    Gays can marry and blacks can hold the priesthood? OMG, the world’s going to hell in a hand basket!

    The state controls the definition of “marriage”, perhaps the church and it’s conservative members should focus “sealing” instead where it’s still okay to discriminate.

  2. Jax on June 29, 2013 at 9:44 am

    The only reason for gov’t to be involved in marriage is because it sees a compelling interest in the institution (to raise children, strengthen society, whatever). If that effectiveness has been nullified, become “obsolete”, then let’s get gov’t out of the definition business – they can cut all benefits and mandates for married couples. Let’s turn some freedom back to the people to do as they please without gov’t intrusion. People will be free to marry whom they choose, but people will also be free to not recognize a marriage if they choose. Let marriage be in the private realm entirely… marriage status is no longer a protected status, and who a person marries (or how many) is no longer a gov’t decision.

    Deal?

  3. Howard on June 29, 2013 at 9:52 am

    I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands,one Nation under God, indivisible, with liberty and justice for all.”

    A republic and a democracy are similar except in a republic the sovereignty resides in each individual person, in a democracy the sovereignty is in the group. Ideally in a republic the majority cannot deny the minority their rights. This is the God inspired government the US was given.

  4. Casey on June 29, 2013 at 10:03 am

    I’ve heard some people argue for a not having the state involved in marriage on the grounds that government’s only role should be to accept the legitimacy of private contracts between individuals and not dictate what the terms of that contract must be. In other words, a classic libertarian argument: principled and largely divorced from political reality. Still, I’m basically sympathetic towards it; I say either don’t involve government in marriage at all but if you do make sure it’s administered equally.

    I’m less a fan of the idea that (to admittedly present a caricature of the OP) if gay people get to play then we’re taking the ball and going home; that strikes me as being driven more by petulance than principle. Right now I think most conservative religionists believe marriage should continue enjoying its privileged position in state policy as long as it’s done on their terms, but maybe more will start to adopt the libertarian-lite position if things continue as they have. Whether that will actually change anything I doubt; there’s way too much momentum behind state involvement in marriage for the two to divorce (rimshot) easily!

  5. Jax on June 29, 2013 at 10:15 am

    the Republic for which it stands

    The Republic that it stands for is one the one written in the Constitution. We haven’t seen THAT republic in so many years that the rest of the discussion is almost irrelevant, because none of us have any experience with it.

    THAT Republic isn’t involved in marriage at all.
    THAT Republic doesn’t go to war without a Congressional declaration of war. (Afghanistan, Bosnia, Iraq (twice))
    THAT Republic doesn’t fight a “War on Poverty”, “War on Drugs”, etc.
    THAT Republic doesn’t try to engineer social change.
    THAT Republic doesn’t gather/store information on it’s own citizens
    THAT Republic doesn’t fight against it’s own energy source (“War on Coal”)
    THAT Republic doesn’t have Department’s of…. over areas never mentioned in the Constitution (Education, etc)
    THAT Republic would operate on the basis that gov’t gets it’s power from the people (Decl. of Indep.)

    THAT Republic doesn’t exist.

  6. Howard on June 29, 2013 at 10:23 am

    So Jax you’re objecting to amendments to the constitution, case law or the end runs government tikes to go around the law? What shall we do about it? Give up? Whine? Play ain’t it awful?

  7. JimD on June 29, 2013 at 10:25 am

    As a libertarian-leaning, small-government fiscal conservative, I do think that it’s time we ask whether marriage is still worth subsidizing in light of the fact that modern marriage is, frankly, no longer a true contract and no longer about chlild-rearing. (SCOTUS’ latest decision being, really, only a symptom of that underlying trend).

    But given the Proclamation on the Family, I suspect the Church leadership would disagree with me. If this idea of eliminating marriage entirely gains traction, we may see a bizarre shifting of political alliances in which the Church and gay-marriage advocates line up together in order to keep government in the marriage business – even if we aren’t 100% happy with the way government chooses to define those marriages.

  8. Jack on June 29, 2013 at 10:29 am

    Unfortunately, I think the “separation of marriage and state” is inevitable in the long run. But even so, as secular society has sought to redefine the meaning of marriage, so too does it seek to (re)define the meaning of religion. And in as much as we practice our religion in ways that exceed that definition will we be viewed as strangely sectarian.

    Bring it on.

  9. Jax on June 29, 2013 at 11:11 am

    Howard,

    What shall we do about it?

    No we don’t just whine and complain. Even knowing it isn’t an ideal gov’t we have I still volunteered for military service to protect it. But do we just live with it? ignore it? pretend that our current gov’t IS the republic of the Constitution? No, we shouldn’t do that either… but that last one has become the most prevalent unfortunately. I’d rather not do any of those. In those areas we’re not being protected in our inherent rights I’d rather change it.

    With regard to marriage (as with most things) I wouldn’t mind seeing gov’t get uninvolved… stop defining marriage, stop protecting it, stop give benefits for it. As long as they get completely uninvolved I’m fine. People can be free to marry who they want (or as many as they want) and people can be free to support it or not (no one required to perform a ceremony or bake a cake for it) – complete non-involvement. Leave it entirely in the realm of private citizens.

  10. Howard on June 29, 2013 at 11:13 am

    Jax,
    Amendments are the result of due process of law. Can you think of any that aren’t? Would you like to give up free speech and gun rights? Case law is created by judges who are attorneys who are part or the educated elite not the unwashed masses. Political end runs are harder to police and check because the people generally don’t have standing to sue the government, an adversarial political system helps here (while hurting many other issues) except as it acts as a jack to ratchet up state power which both sides do and is blissful for both in the long run. So it appears that the system is operating as intended but has leaned progressive over time and it’s somewhat out of control in accruing unchecked power to the state.

  11. Jax on June 29, 2013 at 11:21 am

    because the people generally don’t have standing to sue the government

    Yep… and its the gov’t who gets to decide. Problematic, no?

    and it’s somewhat out of control in accruing unchecked power to the state.

    Yep… though “somewhat” is an understatement of gigantic porportions.

  12. Howard on June 29, 2013 at 11:27 am

    Yes, I agree it’s a problem but I don’t know an easy solution, do you? Yes “somewhat” may be an understatement but we certainly don’t live in a police state yet although NSA seems to be ready to support one anytime they get the order. In the mean time I think we have to play by the Republic rules we were created under.

  13. Jax on June 29, 2013 at 11:42 am

    NSA seems ready for a police state… IRS agents have been training with AR-15’s… DHS has purchased military grade armored vehicles… seems like more steps are being taken toward a police state than just surveillance.

    An easy solution… there is none!

    We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and rebellion are unbecoming every citizen thus protected…

    But as it becomes more and more apparent that we AREN’T being protected in our inherent rights, sedition and rebellion become less and less unbecoming.

  14. Howard on June 29, 2013 at 11:57 am

    Well yes and no. I know a couple of IRS guys and in the past they depended on SWAT teams to do their armed entries and that is fraught with politics for them. Strategically and tactically armored vehicles simply consolidate targets and they certainly aren’t immune from gorilla tactics such as IEDs. They buy those toys because they’re scared and they want to try to look cool! NSA worries me a lot more because we can be harnessed much easier and at a greater profit than than we can be occupied. Almost no one but the Israelis care about land anymore, oil is king, cash flow is king.

  15. Casey on June 29, 2013 at 11:59 am

    Y’all are free to disagree with the government’s actions (I do, particularly with our warring and NSA spying), but writing as though the republic of the Constitution ever existed in some kind of pristine state is not correct. People have debated the constitutionality of government actions (c.f. the War of 1812, the Alien and Sedition Acts and so on), argued about the meaning of the constitution, and sometimes proclaimed America doomed literally from the beginning. Not to minimize your complaints, just to warn against false golden-age comparisons. I guess that applies to marriage, too.

  16. Wearied on June 29, 2013 at 12:21 pm

    Can we have a separation of T&S and Howard/Jax? The post addresses a topic I’m interested in, but I can’t wade through their their idiotic clutter to discover whether there is any real discussion going on.

  17. Opined, open and pained on June 29, 2013 at 1:44 pm

    OMFG Ben, can’t you just let the whole Prop 8 thing die? How many overwrought posts generating vapid discussion do you need in the space of five days?

  18. Jax on June 29, 2013 at 2:06 pm

    Can we have a separation of T&S and Howard/Jax?

    LOL… yeah, just don’t read our posts.

  19. Howarf on June 29, 2013 at 2:07 pm

    Gee Wearied, you don’t have to read every comment, try just skipping over Jax and mine.

  20. Ben H on June 29, 2013 at 2:09 pm

    Casey, there have been and are certainly people on both sides who want to use the law to impose their views on others, whether or not the constitution gives them the authority to do it. This makes it difficult to make a clean, principled argument and have it recognized as such.

    However, here is a very brief version of the principle as I see it: Marriage is an institution with responsibilities as well as privileges. These responsibilities are the reason why government has (or had) a compelling interest in it, and therefore authority to define it by law and enforce that definition. With the advent of no-fault divorce and the practice of not enforcing laws against adultery, we have shown that we are not really interested in having government hold people to their marital responsibilities. We have found that government is often rather clumsy, and the legal process itself can be rather damaging. Nor do our legal practices suggest people have any responsibility to have or raise children, or to do so within a marriage. Children are almost as likely to be born outside of a marriage in this country as inside, so those responsibilities are no longer particularly relevant.

    If marriage is not really about responsibilities, but mainly a benefit to be distributed, which the recent Supreme Court cases seem to treat it as, then the justification for having it as a legal institution is gone. We’ve been going down that road for a long time, and same-sex issues are comparatively late to the party.

    Some of us have other ideas about marriage, but those ideas are pretty thoroughly disconnected from the legal and political process at this point.

    For a society to be incapable of taking marriage seriously as a legal institution, and handling it appropriately, is a serious problem, potentially a problem that makes a society fundamentally unsustainable. However, as our society and institutions become more and more impersonal, and we have less and less in common, that may be where we are.

  21. Cameron N on June 29, 2013 at 2:12 pm

    From the scriptures, it seems that laws directly biased toward God’s law are good, but when the tides of public opinion and official law turn, it is best to fall back on the basics of liberty and protecting the lifestyle of a disciple.

    I have had this same opinion for a year or so. The only problem is, no one wants kids anymore so it still benefits government to subsidize marriage, and many religious folk are myopically short-sighted and care more about tax credits than preserving future freedoms.

  22. David Elliott on June 29, 2013 at 3:44 pm

    Ben, because my daughter is a married lesbian and has a lot of friends, I’m fairly confident that I know many more couples in same-sex marriages than you do. And as a whole, they seem more aware of and more attendant to their marital responsibilities – especially regarding child rearing – than their heterosexual counterparts.

  23. Old Man on June 29, 2013 at 4:28 pm

    I know that many social conservatives are pained by recent developments on the gay rights’ front, but does any married person seriously want to throw their hands in the air and give up the rights and protections that government and society currently offers married persons? The list is huge: insurance, veteran’s benefits, medicaid, tax deductions, parenting rights, hospital visitation, joint medical decisions, alimony/child support, etc.

    Marriage is obviously in trouble, and I believe that the institution could disintegrate further over the next few decades. And excuse the metaphor, but do we really need to shoot this poor beast and put it out of its misery?

    I suggest that Latter-day Saints should fight for this institution. Just because a rather small demographic (the number of homosexuals is smaller than portrayed in the media) seek to later the traditional definition of marriage is no reason for an abandonment of the institution.

  24. Jax on June 29, 2013 at 6:36 pm

    Old Man,

    We aren’t saying do away with marriage… we’re saying we should remove gov’t involvement.

    Insurance, Medicaid, and VA benefits could all be handled under “dependents”. I didn’t know gov’t gave “parenting rights”, I thought those were pretty inherent. Hospitals as private entities could set their own rules… and them stand or fall by them.

    Alimony would be tricky… same with divorce really. If the state doesn’t perform marriages then it can’t dissolve them, right. If a spouse just ups and leaves…then what? Does a pastor dissolve the marriage? Are there any nation-states that aren’t involved in marriage that we can look to for guidance here?

    Anyone have an answer on that?

  25. palerobber on June 29, 2013 at 7:33 pm

    Ben, i’m glad to see you’ve moved on from the ‘Anger’ stage to the ‘Bargaining’ stage, but no, sorry, the state is not going to stop blessing marriages just because loving and commited gay couples confuse you. i hope with some distance you’ll come to see what a petty and unbecoming suggestion this is — not unlike the Salt Lake City School Board banning all extra-ciricular clubs in the 1990s.

    but perhaps it’s all just part of the process — godspeed on your journey towards ‘Acceptance’.

  26. Lorian on June 29, 2013 at 7:59 pm

    Civil marriage is a social institution, not a religious one. Religious blessings of marriage are a relatively recent development, not being formalized in most of Western society until about the 16th century, with some earlier involvement in England as far back as the 14th century or so.

    People often think that marriage is something granted to them by their church, over which the government attempts to preempt jurisdiction. The truth is that civil marriage and religious marriage are two separate and distinct institutions. One is a contractual state overseen by the government, to which some 1300-1400 federal and state rights, benefits and protections are attached (which most people take for granted and don’t even actually understand how they are affected by these rights and benefits, beyond the fact that they can file their taxes jointly), and granted by means of a marriage license obtained by the state and formalized by a person authorized by the state to formalize civil marriages. The other is a religious blessing, sacrament or ordinance granted at the whim of a religious authority or institution, only to those deemed qualified to receive it under the rules held forth by that particularly religious leader or denomination.

    What confuses a lot of people is the fact that, quite typically, they obtained *both* forms of marriage on the same day, in the same ceremony, overseen by the same person — a “licensed” minister of their religious denomination (or bishop, or “sealer,” or priest). Because they obtained both forms of marriage in the same ceremony overseen by the same licensed authority, they assume that their civil marriage and religious marriage are one-and-the-same. They are not.

    You could go to your minister/bishop and ask for a religious blessing of marriage appropriate to your religious denomination. If they are licensed by the state to perform *civil* marriage, chances are they will not grant you a religious blessing of marriage unless you also obtain a civil marriage license (which they do not have the authority to give you, as they are not the state). If they grant you a religious marriage without you first obtaining a civil license, you will not be civilly married (and they could lose their license to formalize civil marriages). On the other hand, if you obtain a civil marriage license and have your civil marriage formalized by a civil authority, such as a clerk of the court, you will be civilly married, but in many denominations, your *church* may not consider you to be religiously married, and may consider you to be “living in sin.” Churches do not have to accept civil marriages, nor does the government accept religious marriages performed without benefit of a civil marriage license.

    Ministers get licensed to formalize civil marriages as a simple matter of convenience for couples, so that they can have both ceremonies happen simultaneously on the same day, formalized by the same person. This creates, as I said, all manner of confusion.

    Rather than attempting to “separate marriage and state,” which is impractical in the extreme, since so many rights and protections for both couples and their children are dependent upon civil marriage, overseen by the state, it would be far better to create clean lines of distinction between civil marriage and religious marriage, so that people would cease to be confused about any overlap between the two and would stop worrying that changes in civil marriage law which do not parallel the requirements for religious marriage in their particular denomination will somehow compel their church to perform religious marriages which do not meet that church’s requirements (which is not the case at all).

    Ministers/priests/bishops/sealers should *no longer* be licensed by the state in any way, shape or form, to formalize civil marriages. Civil marriages should only be formalized by a civil representative of the state, such as a clerk of the court, judge or justice of the peace. Religious authorities/churches should *only* confer religious blessings/sacraments/ordinances of marriage, and should not be limited in any way by the state in who is or is not eligible for such a religious blessing/sacrament/ordinance, as no civil rights or benefits are conferred by the blessing/sacrament/ordinance. It is binding only in the eyes of the church which conferred it (kind of like polygamous sealings are now).

    This would help people to understand the difference between their civil marriage, which is and always has been conferred by and governed under the authority of the government, and their religious marriage, which is and always has been conferred by their religious authority according to its own rules and restrictions.

  27. Casey on June 29, 2013 at 10:47 pm

    Ben, I think I agree with you in regards to the diminishing rationale for the state promoting marriage, though I don’t share your pessimism about the negative implications for society. I reckon we’ll have to agree to disagree on that. Regardless, as long as people share property, raise kids, and generally do all things that cohabitation entails, the state will have to play some role in mediating civil disputes, which means separating the state from marriage would likely be impossible even if the desire for it became widespread.

  28. Jeremy on June 30, 2013 at 1:35 am

    I say civil unions for ALL! If people want to then get married in a church then so be it. Churches can define marriage how ever they choose.

  29. Steve Smith on June 30, 2013 at 3:02 pm

    There can be no marriage without outside parties recognizing a union between two or more peoples, laying out a broad or specific set of written or tacit standards of what the union entails, and holding those involved in the union to those standards. If one or more of the parties in the marriage does not abide by those standards, they may be subject to punishments or penalties imposed upon them by outside parties. For instance in many early agrarian societies, a husband who abandoned his wife and kids and did not attend the responsibilities expected of him would often be treated as a persona non grata by his family and other community members who would shun him and treat him as a lesser unless he did complied with the social norm.

    Throughout the world some communities are more just and enlightened than others. Some communities subject their members to arranged marriage or marriage at an early age and those who do not want to comply with these austere community expectations have to suffer austere punishment dealt by their communities (i.e. banishment, psychological abuse, even physical abuse). They have little recourse from more just individuals or collectives against their communities. For instance it is common practice in Niger that women be betrothed to 20-year old male at a young age of 14 or 15. They are expected to have many many children (the average per woman in the country is 7). Some women do relatively well in such a situation and others do not. Some suffer great health problems and great poverty do to unreasonable community expectations, but their communities do not listen to or attend to their issues.

    If you want the federal US government to divorce itself from marriage, then by default you place the institution of marriage (both the drawing up of the marriage contract, its enforcement, and the drawing up of punishment if expectations are not met) in the hands of many different individual communities, who will then essentially act as governments in and of themselves in relation to marriage. Some communities will recognize gay couples as on par with straight couples and will allow them to enter into a marital union if they so desire. Other communities will impose stronger and perhaps more austere standards for marriage on their members. As different communities interact there will arise disputes about what marriage is, who should be able to get married, and whether or not one marital union is legitimate or not. Conflicts between different communities and individuals will arise, and to whom will they run for recourse if a strong central government is not involved in defining and protecting their rights? A different community or collective who will then try to impose their standards of what marriage is on the offending collective.

    In the end, there is no marriage without government. Either you have a large government enforcing marital contracts, or you have small quasi-governments enforcing them (sometimes without written laws about marriage, but tacitly established social norms).

  30. Edward on June 30, 2013 at 3:13 pm

    Like it or not polygamy will become the next marriage rights cause:

    http://www.youtube.com/watch?v=erTwhTCAAss&feature=youtu.be

    The video is an interview with an anthropologist who has studied polygamy in-depth. Her contention is that polygamy can actually empower women.

    If you can allow a man and a man to marry you will have to allow a man and a woman and a woman to marry.

  31. Steve Smith on June 30, 2013 at 3:22 pm

    “Further, if we didn’t already suspect as much, the recent Supreme Court rulings on marriage seem to confirm that our court system is incapable of speaking sensibly about why marriage matters, or of even engaging in a serious conversation about it.”

    The Supreme Court never addressed, nor were they expected to, address the question of why marriage matters. They US legislature and judiciary are not interested making laws and rulings about such a question, nor have they ever been. There is no legal requirement that two people involvement in a romantic relationship, kids or not, get married. If the government were to make that an enforceable legal requirement, it would be austere and unjust. If that were the case, the government would be imposing shotgun weddings on all sorts of people. The government offers tax and property incentives for people to marry, but that’s it. The marriage contract is something that the government offers as a protection option for couples who so desire it. Individual citizens ultimately have to decide whether that is something important for them or not. Also the government protects the rights of individuals to not have to enter into marriage contracts simply because their parents want them to. It also protects two persons’ right to marry even when their family and friends disapprove of their marriage. And that is what it should be doing.

    “Like religion, marriage is not an individualistic or consumeristic institution, and our public discourse at the national level rarely seems to understand anything more than individualism and consumerism.”

    So arranged marriage should be the norm? Is that what you’re saying? Of course romantic relationships are individual pursuits and they well should be. I highly doubt any of those on this board who are married came by their spouse without having first an individual desire to marry him or her. Hence marriage (at least when it is justly imposed) has a strong element of individualism build within it. Did any of you marry someone without the approval of your family, friends, and surrounding community? Well, guess what, the government protecting your rights to make the decision of marriage between you two and only you two.

  32. Jax on June 30, 2013 at 3:32 pm

    There can be no marriage without outside parties recognizing a union between two or more peoples, laying out a broad or specific set of written or tacit standards of what the union entails, and holding those involved in the union to those standards.

    This sounds like your saying “outside recognition/pressure is good and impossible to do eliminate”

    but this

    For instance in many early agrarian societies, a husband who abandoned his wife and kids and did not attend the responsibilities expected of him would often be treated as a persona non grata by his family and other community members who would shun him and treat him as a lesser unless he did complied with the social norm.

    makes it sound like you are saying “outside recognition is bad and has to be stopped”

    I’d like to respond but I’m not 100% sure what you stance is.

  33. Steve Smith on June 30, 2013 at 5:13 pm

    The point is that marriage doesn’t exist without parties outside the marriage union enforcing a tacit or written contract between the two or more (more here meaning in polygamous marriages) parties involved in the contract. So consider an early agrarian society where there is no large central government that intervenes in the affairs of the community. Who enforces marriage contracts in such a society? The members of the community according to their own social norms. So in essence the community functions as a form of government. Hence there is no marriage without government. If the US Federal government isn’t enforcing marriage contracts, then smaller communities would by default be enforcing marriage contracts, acting in essence as smaller governments.

  34. Jax on June 30, 2013 at 7:09 pm

    So consider an early agrarian society where there is no large central government that intervenes in the affairs of the community. Who enforces marriage contracts in such a society? The members of the community according to their own social norms.

    Yep… And my argument has been that this is perfectly understandable and acceptable. Your argument seems to be that it is a good idea of the US to try to legislate against basic human nature – that the Gov’t could/should stop people from doing what people have done since the beginning of people. All societies have always had social pressure to get people to act “appropriately” (by their several definitions). You agree, yes?

    Sooo… It’s not okay for anti-SSM people to use social pressure (rejection of services, ridicule, name-calling) against SSM people to advocate for their perceived appropriate behavior (avoid homosexuality), but it’s okay for pro-SSM people to use social pressure (force of law, ridicule, name calling) on anti-SSM behavior to advocate for their perceived appropriate behavior (homosexuality tolerance).

    We’re going to go back into the whole “legislating morality” thing again… but…

    One argument says it’s not right for the gov’t to control how I relate/interact with people (so let me marry who I want).

    The other argument says it’s not right for the gov’t control how I relate/interact with people (so let me approve or disapprove of SSM as I will).

    You can see how it looks awful hypocritical right? “Don’t judge me for my personal choices” from pro-SSM people sounds fine, but then they turn around and are quite vocally derogatory and judgmental about the personal choices of others… “you’re a homophobe, a bigot, etc”.

    For a personal example check out this link to see where someone who called for personal freedom was called a racist.

  35. Steve Smith on June 30, 2013 at 11:30 pm

    My point had nothing to do with gay marriage in this instance. I was responding to the notion that you can have marriage without government. That is an impossibility. A small tribe in the Amazon rain forest with no outside contact probably practices marriage traditions. But it can’t be said that they practice these traditions completely devoid of government, for the tribe or group of families itself constitutes a form of small government upon which all of the marriage contracts of the community are contingent.

    Also I wasn’t arguing that there was anything inherently wrong with a community acting as a quasi-government to regulate and enforce marriage contracts among its own.

    However, some communities practice unjust marriage traditions that have demonstrably harmful consequences on its members. For instance it is unjust of communities in much of the Muslim world and Africa to marry extremely young girls (12 years old) to older men, is it not? These girls who are forced to marry young are deprived of what should be their right to choose a mate and often have not developed the physical capacity for regular healthy sex and healthy pregnancies. It was unjust of the southern US to pass laws restricting marriage between a black person and white person.

  36. jg on July 1, 2013 at 12:57 am

    I see your one link to libertarian opinion magazine Reason and raise you one link to a libertarian SKEPTIC blog-

    “Should government be “in the marriage business”? Maybe not. But it definitely shouldn’t be in the discrimination business. When we give an answer to a question nobody asked, we make ourselves irrelevant to the discussion. When someone asks, “Should gay couples have the same rights as straight couples?” the correct answer is “Yes.” Period.”

    http://blog.skepticallibertarian.com/2013/03/18/government-shouldnt-be-in-the-marriage-business-yeah-so-what/

  37. Jax on July 1, 2013 at 8:59 am

    “Should government be “in the marriage business”? Maybe not. But it definitely shouldn’t be in the discrimination business. When we give an answer to a question nobody asked, we make ourselves irrelevant to the discussion. When someone asks, “Should gay couples have the same rights as straight couples?” the correct answer is “Yes.” Period.”

    K… you tell me when “Yes. Period.” no longer applies…

    Should polygamous couples have the same rights as straight couples?
    Should sibling couples have the same rights as straight couples?
    Should parent/child couples have the same rights as straight couples?
    Should polyamorous groups (multiple men and multiple women) have the same rights as straight couples?
    Should single people have the same rights as straight couples?
    Should human-animal couples have the same rights as straight couples?
    Should couples without long term intentions have the same rights as straight couples?

    If any of those are “NO” then you’re clearly discriminating against someone because of their lifestyle, no? and gov’t shouldn’t be involved in the discrination business, right?

  38. Jax on July 1, 2013 at 9:12 am

    Steve,

    Also I wasn’t arguing that there was anything inherently wrong with a community acting as a quasi-government to regulate and enforce marriage contracts among its own.

    Then let’s get the Federal gov’t out of it.

  39. Steve Smith on July 1, 2013 at 10:31 am

    OK, so if we were to remove federal regulation and enforcement from marriage in the US (which would create a jurisdictional nightmare of such grand proportions that no one would seriously consider it), then hypothetically we would be paving the way for an increasing number of marriages between two people of the same gender to be recognized as marriages that were equal to those between two people of the opposite gender. So you and Ben Huff are in essence by default in favor of increasing the number of recognized gay marriages throughout the US. Glad you two have come around to being in favor of gay marriage, even if it is rather indirectly.

  40. Old Man on July 1, 2013 at 10:53 am

    Steve,

    I seriously doubt some gay activists would care as passionately about marriage if no federal benefits and protections were involved. Several I have talked to also are under the impression that somehow a government-sanctioned marriage at least partly removes the social/religious stigma of homosexuality. I think that the drive for SSM is greatly influenced by the desire for psychological need for acceptance. In the midst of this culture war, I’m afraid that they’ll be deeply disappointed and will lash out at many in the religious establishment who have scriptural, theological and traditional roadblocks to full and absolute acceptance. I think we are witnessing that next stage already. Intolerance of SSM will not be tolerated!

  41. Ben H on July 2, 2013 at 12:18 am

    Lorian (#26), your historical argument is not credible. Marriage is all over the Bible, and it is regulated in the Law of Moses. The Law of Moses, dare I point out, is a lot older than the 14th century.

    The Koran has specific teachings on marriage. It is also a lot older than the 14th century. I’m sure there are more examples where those came from.

    Depending on what society you look at, I’m sure there are lots of interesting details to explore about how the role of religion and civil authorities in marriage varies over various centuries and societies. It must be remembered, though, that the distinction we draw today frequently did not apply in earlier societies. The Law of Moses is both civil and religious. There was no real separation between the two ideas in that context. The head of the Church of England is still the monarch, following an age-old pattern.

    Some time I would be interested to hear more about marriage laws and religious rites in Europe, which I assume is where you are mostly talking about, but whatever we find there, your claim that marriage only recently became a religious matter is clearly false, if our reference point is the Judeo-Christian tradition.

    That said, my point in OP does not actually rest on whether marriage is a religious matter or not. I said that like religion, marriage is essential to civil order, and like religion it is not individualistic or consumeristic, and like religion, the government’s ability to handle it is rather questionable, so perhaps like religion, it should not be a function of the government.

  42. Ben H on July 2, 2013 at 12:52 am

    Casey (#27), I quite agree that “as long as people share property, raise kids, and generally do all things that cohabitation entails, the state will have to play some role in mediating civil disputes.” Several other commenters have written about these kinds of issues. There are a few different ways of responding.

    Separation of marriage and state could take a number of different forms, reflecting different degrees and kinds of separation, while still preserving a lot of legal structure for marriage.

    One scenario is simply for the federal government to stay out of the business of defining marriage, applying “separation” at the federal level, and allowing states individually to define marriage as they please. The DOMA case can be read as an argument for this, although it is a murky enough opinion that it is hard to be sure what it means. I think the argument from federalism is very strong here.

    Another scenario is the one suggested by Jeremy (#28): to have a generic civil institution which does not claim to define “marriage,” but provides a legal framework for the kinds of mutual obligations and such that marriage involves. A “civil union” or “domestic partnership” arrangement could be open to all kinds of configurations, while leaving it to civil society (i.e. not the government) to decide how to use it. A marriage, then, would be a civil union, plus whatever additional layers of meaning one applies based on religious or moral or personal convictions or interests. In a similar way, today we have the legal institution of a corporation, but any specific corporation is much more than that. A specific corporation has a specific purpose and personnell and assets, trademarks and branding, and often a specific organizational culture, which are left to those who form it, but they rely on the legal institution to make it possible. Marriage, as such, would not be defined by government in this scenario, but would take advantage of the legal framework it provides.

    A third possibility would be to have marriage simply be a matter of private contract. The parties to the marriage could define the contract however they want to, within the limits of contract law, but it would be enforcable by law. Just like different landlords have different things written into their lease or rental agreement, different couples might write different things into their marriage contract. A particular church or other organization with a certain philosophy of marriage might have a standard contract to go with it, which couples could use as a template and perhaps adjust to suit their own ideas.

    You’re quite right that the government is going to have some role to play in relation to marriage in almost any serious scenario, but that doesn’t mean that marriage itself has to be defined by the government. Even right now, I think it’s fair to say that the specific legal details of the civil institution of marriage are only semi-defining for actual marriages, which are partly defined by a lot of other cultural and personal factors, often involving religion. This is especially true for Mormons, of course, since we are marrying people for time and all eternity, long after our current legal system will be gone. I would like to see us be more conscious as a society, though, that marriage is something we need to take an active interest in thinking through and defining for ourselves, and in a way, this process might be a lot livelier and more interesting if we stop calling the civil institution “marriage.”

    I haven’t made up my mind what I would like to see as far as the legal details. I have had mixed feelings about Proposition 8 from the start, because it is not obvious to me what the role of the civil government should be in defining marriage. Marriage is an area where our usual philosophy of government in this country is hard to apply in a sensible way, even though it is obviously vitally necessary for the health of society. I do think, though, that to the extent that changes in the laws have changed the cultural institution of marriage over the last few decades, the changes have been largely negative and have shown the clumsiness of legal institutions for dealing with something so complex, so vital, and yet so personal. Those who want government to take an active role in redefining marriage I think are sowing the wind.

  43. Anon on July 7, 2013 at 12:20 pm

    One does not need to be married to have or raise children. Our society does not take away children from single parents. Regulationing marriage under the guise of protecting children is illogical. One can be gay, straight, married, single, healthy, or dysfunctional and still have/raise children. Limiting who can marry has no impact on this.

  44. Anon on July 7, 2013 at 12:20 pm

    *regulating