Government and gay marriage
Since the government IS involved with marriage, it should grant marriage equally to all people, including use of the term ‘marriage.’ To call it by another name, even if legally identical, implies that something is different. And as far as the gov’t goes, nothing is different: marriage is a contractual agreement. So long as the people can enter into legal contracts, the law should be blind to sexual orientation, just as it is (now) blind to race, religion, age, class, ability to reproduce, etc. Two-hundred years ago, inter-racial marriages were anathema, and it was a woman’s duty to be a baby-making machine. These are historically-true facts that properly have no bearing on the relevant rights.
It should be optional for churches to recognize gay marriages socially and theologically (assuming church and state are kept separate). That doesn’t make it right or rational. So long as subscription to a religion is optional (thank god!), there’s nothing legally wrong with this arrangement. And it’s laws we are asked to vote on, not social mores.
If there is friction between married gays and their church, it is for them (gays, pastors, theologians) to sort out. But no person or group is entitled to deny equality before the law to anyone on the basis of sexual orientation (or a myriad other things). That is a primary purpose of the Constitution and Bill of Rights.
It would also be wrong for gays to use the government to force churches to socially or theologically recognize their "kind" of marriage - because the government shouldn’t recognize different "kinds" of marriage at all. For the government (ideally) you’re either married, or you’re not. No person, gay or straight, is or should be legally entitled to be a welcomed member of any voluntary group.
It’s not the place of government (preemptively or by conscription) to adjudicate a dispute between gays and religion. But, thanks to the inherent tyranny of mob-rule democracy, Prop 8 un-blindfolded Madam Justice to cannonize one group’s social and theological views.
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except that marriage is a religious institution, not a civil one. government, in my opinion, has no business saying ANYTHING about marriage because it actually has nothing to do with it - civil weddings are the resulting of government dabbling in theology. if the government wants to recognize marriage as such - and, as you suggested, recognize gay “marriage” as well - then the equal footing should be that of a civil union: call them all civil unions as a “legal status”, and leave marriage in church.
Comment by Samee — November 10, 2008 @ 12:42 pm
This post was originally a comment on someone else’s blog (yeah…), so it’s shorter and more focused than normal for a post on this kind of subject. That said…
I was thinking about the issues you raise when I wrote the first and last sentences of the first paragraph. My view is that the contractual and legal issues involved with marriage should 1) be referred to, by the government, by the same name and 2) because of history and legal precedent, the contract between two people has been called ‘marriage’ by the government. At this point, it’s from a purely practical standpoint that I advocate the application of the term ‘marriage’ to the same legal arrangements made between two gay people.
Recognizing the religious aspects often (but not necessarily) tied up in marriages today, I would be perfectly content for the legal/contractual side of things to be re-termed ‘civil union’ or something similar, so long as it is applied to straight and gay couples across the board. This would leave the term ‘marriage’ free to have its religious connotations and applications. So, people who don’t care to be wed in a religious sense can have the full benefits of a government-recognized contractual agreement with all the ‘perks’ of (what we now call) marriage, but not be ‘married’ in the religious sense, in the eyes of god, in the eyes of a particular faith or denomination, etc. Yes, it would mean that a couple could be civilly wed but not married (per se), civilly wed and married in one faith but not in another, not civilly wed but married in the eyes of god, etc.
Given the disagreements among major and minor religions, and major and minor denominations of the same faith, I think it would be extraordinarily unlikely that someone could be, in this set-up, viewed as married “across the board.” Inevitably there would be some church, some culture, in some country, that would refuse to recognize the marriage. I think this should be legally no problem because insofar as each church claims to know what counts as sufficient to be married in the eyes of god, they needn’t convert everyone in order to believe that they are right and have full claim to granting the title of ‘marriage’ to some couples and not to others. And, crucially, this area is where freedom of religion comes into play. There will certainly be disagreements - heated ones. But they must remain disagreements, arguments, and the like. No religion is entitled to pull the government onto its side to decree and enforce what it “really” means to be “married” in the eyes of god. The government should have absolutely nothing to do with god and religious matters. The laws of government and theology should never, ever speak to each other. Well, more correctly, religion may properly have all kinds of opinions and disagreements about government; but the government must express no views one way or the other about religion and religious matters per se, and government should not act on any theological matter. It can only act on secular aspects of matters (because, like marriage, clearly there are both secular and religious overtones to many institutions and activities).
And that gets us into the nature and proper role of government, the origin and justification of moral codes, adjudicating between them, and how this all plays out in the context of the founding documents of our country and our current legal and cultural context. And I have to go to class.
Cheers.
Comment by praxical — November 12, 2008 @ 10:48 am
Jonah Goldberg, a columnist, eloquently writes: “I remain unconvinced that marriage is a ‘fundamental right’ and therefore immune to government regulation.” Rather than try to sort out the myriad confusions in this sentence, let us just state the obvious: marriage and family, like the ownership of property, precede the state. They are rooted in the freedom of association and the right of contract. They need no state to exist. In a state of anarchy, there would still be property, marriage, and family.”
The government would do well to take a laissez-faire approach to things of this nature, and get out of the marriage business for good.
Comment by John — November 14, 2008 @ 8:43 pm
If two people make a legally-binding arrangement involving their finances and property, parental rights, end-of-life decisions, etc., then the government does have a role in up-holding that contract legally. That’s a big role, and not to be dismissed.
But I agree that government shouldn’t have any say in the moral basis of marriage - whether it has to be properly between one man and one woman, or between just two people. It’s all just a contract. If adoption agencies don’t want to do business with gay couples, or polygamous marriages, that’s their full right.
I’m trying to think of what else is implied by “the business of marriage.” Clearly it has no business stipulating fidelity or monogamy or love or respect or “till death do us part.” While marriages are frequently associated with raising children, it’s not a necessary thing in any respect, so it doesn’t have a fundamental bearing on the legal/contractual aspect of marriage (in the sense that government is involved; what one further adheres to as a matter of religious or otherwise personal belief is one’s own business).
I pretty much think that the government doesn’t have any place telling people what they *should* do. I think it can only punish people for a skeletal set of offenses involving the violation of other people’s individual rights.
Insofar as punishment is a kind of negative motivator, there’s a minimal kind of moralizing from government. But “Don’t do X” isn’t the same as “Do Y”, so government is not inherently an institution for building or positively enforcing a certain kind of morality. It punishes, rather than teaches.
And it’s on this aspect of the nature of government that I most disagree with most people (leftists and rightists combined). I don’t think the government should make people be good - not Christian-good, not moonbat-good, not greenie-good. I don’t think government should encourage, trick, persuade, or incentivize people into being any kind of good. It’s not the government’s job to be parent, teacher, conscience, good neighbor, copy-editor, preacher, professor, TV producer, or personal decision-maker of any kind. I think morality is extremely important, but the government has as much business mediating my morality as a uninvited thug does mediating a debate.
Comment by praxical — November 17, 2008 @ 12:47 am