[Jon Henke]
Conor Friedersdorf argues that that gay marriage should be culturally acceptable to those currently opposed because it will help to create and communicate a more pro-marriage, pro-monogamy society. That's a good point, but I think it reinforces a problem we have in the gay marriage debate - that is, the distinction between the religious conception of marriage and the legal construct of marriage. A couple years back, I made the libertarian argument for gay marriage, based on this distinction. With some minor changes, I'll reproduce that here...
That distinction — the sometimes invisible line between civil and religious law — is the problem; especially when the two are conflated. There is certainly some correlation between legal and moral, but immoral is not equivalent to illegal, nor is moral necessarily equivalent to legal.
Consider: gambling, premarital sex, drunkenness and gossip are immoral in the judeo-christian moral system, yet no libertarian (and very few conservatives) would criminalize them. On the other hand, there's nothing immoral about driving 45mph in a 35mph zone or crossing a national border without authorization. Yet only an anarchist would eliminate all traffic or immigration laws.
Clearly, there's no direct, inherent connection between legality and morality, and leaving aside outright anarchism, there ought not be.
This notion that the civil law ought to be distinguishable from moral law might be a bit disconcerting to those who consider their moral values inextricably linked with their political values, but it need not be. John Locke — perhaps the philosopher most responsible for the 'natural law' philosophy of our founding documents — argued that there were three kinds of "laws that men generally refer their actions to, to judge of their rectitude of obliquity".
1. The divine law.
2. The civil law.
3. "The law of opinion or reputation, if I may so call it."
Of Divine Law, Locke wrote, "men judge whether their actions are sins or duties"; of Civil Law, "whether they be criminal or innocent"; of the Law of Opinion, "whether they be virtues or vices."
If we assume — arguendo, in order to respond directly to the opposition's argument — that homosexuality and gay marriage are contrary to God's Law, then we have a classic conflict of Divine Law, Civil Law and the Law of Opinion. Extending "marriage' to homosexual couples is against divine law, but failure to do so violates our civil law of equal rights, and public opinion is mixed.
So, let's dig down a bit on those conflicts.
If we want to follow Locke's distinction between God's Law (Divine), Man's Law (Civil) and peer pressure (Public Opinion), we need to distinguish between the partnership sanctified by a Church ("Religious Marriage") and the interpersonal contract recognized by the State ("Civil Marriage").
We might call them "Holy Union" and "Civil Union". These are not the same things.
Religious Marriage, according to the various institutions that conduct it, carries with it certain specific moral duties and meanings. Civil Unions, defined by law and enacted by State institutions, carry very different meanings and obligations. Nowhere in the Bible can I find any reference to religious marriage requiring "status as next-of-kin for hospital visits and medical decisions", or "judicial protections and evidentiary immunity".
Yet, with no religious basis at all, we've incorporated those benefits into civil marriage. How can we still argue that civil marriage is equivalent to religious marriage. We have conflated two separate modes of law, in the process introducing religious judgments into civil law. Therein lies the fault: as Locke had it, peers enforced the Law of Public Opinion, "politic societies" (i.e., properly enacted government) enforced the Civil Law (which consisted of protecting "life, liberty and estate"), and God enforced his own law.
But we've confused them, as if a God somehow requires the assistance of politicians.
From a libertarian standpoint, the fact that civil and divine marriage share the same name is irrelevant. They are separate and distinguishable. No religious person is obligated to accept a Civil Union as a Holy Union, nor are the non-religious obligated to accept a strictly Holy Union as a Civil Union.
The ideal libertarian solution would be to have the government get out of the 'marriage' business altogether; to have government enforce civil contracts, and to have religions perform their religious ceremonies, if and how they choose to do so.
But since we don't live in Libertopia, we're left with a purely civil legal privilege available to one set of people, but not to another set, simply because that civil legal privilege arose from a religious ceremony. At least, within our cultural heritage; among some other cultures, marriage had little to do with religion. If those who object to gay marriage on religious grounds would be consistent, then let them also reject the civil privileges of marriage not contained in the Bible.
Until such a time as we could clearly distinguish the two in legal terms, however, the civil legal privileges of marriage should be extended to everybody.
You seem to be hanging your entire argument on this rather bizarre notion that the only area of civil law that might reflect public morals is criminal law. Drunkenness is illegal if you’re operating a motorized vehicle and in some cases if you’re in public. The sale of alcohol (usually a necessary prerequisite to drunkenness for most people) is heavily regulated. Gambling actually is illegal in many cases and heavily regulated in others. Fornication isn’t a crime (generally) but it can have legal consequences in the family court system. Gossip isn’t a crime but slander and defamation are torts and violation of a confidence when you have a legal duty to maintain that confidence can carry its own legal consequences.
The fact that there are some things which are regarded as immoral but only criminalized in certain contexts and which are also regulated by other areas of the law that don’t necessarily involve criminal punishment undermines your argument that “there's no direct, inherent connection between legality and morality.” The fact is that there are all sorts of ways under the law for members of a society to say “we think this is wrong” or “we think this is good” that don’t involve the criminal justice system or chose to utilize it sparingly.
That pretty clearly makes the point that morality and legality are not inherently related.
No, not really, as I said from the beginning: You seem to be hanging your entire argument on this rather bizarre notion that the only area of civil law that might reflect public morals is criminal law. Which is particularly odd considering that civil marriage is generally covered under the rubric of family law rather than criminal law.
No, we do not live in Libertopia. But that doesn't mean we can't get there on this issue. And to deny it as a distractionary wedge-politics issue to be used by the pols on both sides of the aisle.
Just because marriage originated from religious ceremonies, that doesn't mean that other ceremonies can't arise from the broader society.
The mistake was that the government got into the marriage business. Repeat: THE MISTAKE WAS WHEN GOVERNMENT IS CERTIFYING MARRIAGE.
I was reminded of this when France's Nicolas Sarkozy divorced and remarried. France's statist culture required IN LAW that he get married by a mayor civilly BEFORE he could have any religious or other ceremony.
The gays should just organically form their own organization, call it Gay Unions, U.S.A. That body would have as its mission the codifying of partnerships between same sex couples. It can hire its executives, its "ministers," compile a business plan, terms of union, etc.
That same organization can then come before state legislatures and lobby to be recognized as a tax-exempt entity first. Then it can keep trying until what it calls "marriages" or unions is accepted by these legislatures for tax purposes, hospital visitiation, insurance, etc. etc. etc. Or maybe in some states they will never be recognized. Then I guess that gays who want this recognition will just have to coalesce in a state that does.
If the state got out of the marriage business we might move toward solving one of the worst social problems of the last few decades: heterosexual divorce. Once civil marriage/ courthouse marriages are abolished, if straights want to get married they will likely have to go to a church unless some secular organization arises.
Looking at the demographics in this moderately religious country, I think most will opt to get married in a church, if only for their family members' sake. The church can then require that the couples meet several times with the minister and go through marriage education classes, require a waiting period, or whatever they deem necessary to stress the importance and seriousness of marriage that has been lost until recently.
And if a secular organization arises, I think they will be competing with the churches and so will also come up with some sort of similar "marriage training" to expand market share. The gays might follow likewise.
Either way, isn't it clear that what has arose recently in our "culture" starting from Vegas marriages and Tijuana divorces has debased this fine institution?
I try here to carve out a space between the moralizer/traditionalist/religionist statists who want to enshrine in law predjudice for heterosexual marriage AND the statists of other varieties who want to expand that to include gays, polyandry,.... To me, it is called a Libertarian position. Ms. McArdle is not helping in this manner.
sorry, Mr. Henke doesn't seem to be helping in this matter.
But since we don't live in Libertopia, we're left with a purely civil legal privilege available to one set of people, but not to another set...
On the contrary. Homosexuals are free to marry in all fifty states, and in nearly every foreign country I can think of. What they're not free to do is get that government approved label "marriage" (and the accompanying legal recognition) applied to their homosexual relationships. But again, they're perfectly free to obtain said legal recognition of their heterosexual relationships.
...simply because that civil legal privilege arose from a religious ceremony.
Actually that "civil legal privilege" arose from deep biological and anthropological roots that predate organized religion (not to mention modern governments) by hundreds of thousands of years. Only after millennia of cultural development did humans begin engaging in formal regulation of what we now call "marriage." Once upon a time, religion and government were one. In the West, for at least fifteen centuries or so, the two have gradually diverged; hence the two have, in turn, developed somewhat different criteria for marriage. But only somewhat. The thing called "marriage" recognized by the church and the item of the same name recognized by the state are the same thing. That's why, for instance, in many jurisdictions members of the clergy are empowered by the government to preside over a ceremony that creates a legal contract.
...marriage had little to do with religion.
For lots of people it has little to do with religion now. It is mostly a biological and cultural/anthropological construct.
The fact is, marriage is an ancient anthropological and biological phenomenon utterly non-dependent on belief in any metaphysical phenomena. It has evolved over the centuries, as has its treatment by government. It may well be time that this evolution encompassed same sex unions. But we shouldn't kid ourselves doing do amounts to merely doing away with an inconvenient bit of superstition, or some minor bureaucratic fine-tuning. Rather, doing so involves harnessing the power of the state behind a revolutionary shift in the ancient order of human relations and culture.
1. Thorley Winston is right; there's a close relationship between divine and civil law.
2. Straight people have over the past 80 years written most of the divine duties out of civil marriage: divorce is now easy; remarriage is too; it's considered bad to stay married for the kids' sake; legal birth control means there may not be any or many kids at all.
3. The tax and other advantages inherent in civil marriage are relics from when its divine nature was more pronounced. These would justified if we wanted to encourage straight people to raise kids in permanently married families; now that marriage is neither permanent nor kid-friendly their justification is suspect.
4. Under current circumstances, marriage is just something the state does when two people say they love each other. Given that reality, it makes diminishing sense to prevent same-sex couples from getting civilly married.
5. If we as a society agreed to reset civil marriage laws as they were in 1920, there would be some justification for keeping same-sex couples from getting married - if they even wanted to do so under those conditions.
we're left with a purely civil legal privilege available to one set of people, but not to another set
No doubt, but these things came from an era when the family, not the individual, was the bedrock unit of society, and was logically treated as in indivisible whole for most legal purposes.
That's no longer true, of course. Which probably goes a long way towards explaining why resistance to redefining the family to include all kinds of partnerships (gay couples, "polyamory," et cetera) has weakened considerably.
Personally, I've no objection to the nature of the proposed solution, which is to get the state out of the business of regulating marriage altogether. It's a concept whose time has passed, long ago.
However Henke's actual detailed solution -- extending the legal definition of "marriage" -- is foolish. We would be utterly unable to logically defend a similar extension to any kind of "family" whatsoever, and would provide ample motivation for those wishing the benefits of "marriage" to push for it. And if we don't want to go extending "marriage" benefits to people who want to "marry" four others, or their dog, or their own child, because of the possibility of gaining those benefits, then we'll be reduced to ugly arbitrary power-based arguments like "Because we say so, and there aren't enough of you to vote things otherwise." Who wants to go down that cynical road?
The correct detailed solution is to eliminate the legal distinction between married and not, and remove all legal benefits to being "married." From the point of view of the law, there should be zero distinction between your friend, your neighbor, a stranger, and whomever you choose to call your "spouse."
If folks want to grant each other by private contract various special privileges in each other's lives, e.g. powers of attorney, survivor's rights, obligations for mutual support, then let them do it and enforce it through ordinary contract law.
And if the public wants to grant rights and privileges to parents, to support the raising of the next generation, then let them do so explicitly, and not indirectly through granting those same rights and privileges to all married people.
You are being too kind when you saw that "we" have confused religious marriage with civil marriage.
I certainly wasn't confused when I was married by a justice of the peace without ever entering a church, and know my marriage to be just as legally valid as a priest-blessed one.
Churches have always had regulations about who they would and would not marry - Catholics, for instance, do not consider divorce and remarriage to be valid.
But because a sect objects does not make Reagan's marriage to Nancy invalid.
The fact is that we have civil marriage in the US and we all know it, and those who are "confused" are actually being deliberately deceptive in order to decieve others and promote their particular sects religious agenda.
We are not confused - some of us are lying hypocrites.
Too right Jon. If the religious, myself among them, actually believe that divine laws are what really matter, then, we should be indifferent to who else the state says can be married. To the religious is the marriage certificate or the ceremony performed by the religious official of your choice more important? As long as the state will license my marriage, which is actually performed by God's representives, why would I care that it also licenses marriages solemnized by jumping over a broomstick, or performed by any of those other wrong ways of doing it? Or between whoever wants to do it in those sadly misguided paths?
Competent consenting adults should be able to make contracts between themselves. Period.
So long as contracts don't infringe on anyone else's rights, the state shouldn't get in the way, and should offer its services towards enforcement, remedy, etc.
That's it. That's all she wrote. No other argument is necessary.
Of course, as you suggested, religious and civil marriages should not be conflated.
Extending "marriage' to homosexual couples is against divine law, but failure to do so violates our civil law of equal rights, and public opinion is mixed.
Sorry, but that's a load of crap.
Homosexuals can marry members of the opposite sex, just like heterosexuals can. Both have the same "right".
If public opinion were "mixed", anti-SSM initiatives wouldn't win so often, and by such large amounts.
Heterosexual couple are necessary for our society to survive, since they provide and raise the children that perpetuate our society.
Homosexual couples are not necessary for our society. If there is any evidence that they are actually beneficial to society, supporters such as you have done a piss-poor job providing it.
"Inequality" would be providing those couples with the same benefits has heterosexual couples, when they don't provide society with the same benefits that heterosexual couples provide.
"If the religious, myself among them, actually believe that divine laws are what really matter, then, we should be indifferent to who else the state says can be married."
TR: That's actually my natural impulse and what I said until recent times.
And to a degree I'd say it's still accurate. What the state calls a marriage is largely meaningless to me. Civil marriages are illicit and not real marriages. So religiously one not-real marriage is no different than another.
However there are other issues involved.
For example "is it in the state's best interest to support this kind of union?"
The evidence on this is not really clear as the idea is too new. In addition to that the nations it's been tried are fairly different from us to start. So this is kind of neutral.
Is there a pressing need for it? Not really. Our economy generally does better than the nations that have it. Gays are not oppressed in any obvious way that harms the US in the eyes of the other great powers. (This is very much unlike African Americans) Also unlike A-As gays on average are wealthy and spend a good deal as is. It's possible that pressing their lifestyle to more "conservative" modes could be economically detrimental. Lastly there is no state in the Union where people have voted for it.
Is the state abandoning all recognition of gender good or bad for society? Because ultimately this is what it means. The only contract that has a gendered element will no longer have one. I think there's legitimate reason to think this is not a good idea while there's arguments it's a great idea regardless of homosexuals.
Basically from a secular perspective I'd say go with whatever the voters want. That is of course not what will be done.
Basically from a secular perspective...
I should expand on this.
From a secular perspective if the conditions change the law can change. So we'd need
1: Clear evidence it's beneficial for the state.
or
2: Evidence that our allies or major trading partners have soured on us because we don't have it.
or
3: A popular demand for it.
Just one little thought...
So far as I know--in both France and Germany--not quite sparkling examples of Libertopia--civil marriage and religious marriage don't have anything to do with each other. You can go get married in a church all you want--but you don't get any legal rights until you do the civil contract thinger.
It's here in America, where it's kinda weird that the state grants you rights based on a religious ceremony. I'm all for splitting the two and saying that you can have any religious ceremony you want, but if you want the legal rights, you also have to file with the state.
"there's nothing immoral about driving 45mph in a 35mph zone"
Is it immoral to drive 85 in a 35?
Is that true? There is nothing immoral about behaving in a risky manner to yourself and those around you?
Your argument is all wrong because the fundemental principle of it started off on the wrong foot.
Nearly all laws have morality at the root of them.
It is bad to do this because...
I don't want to live in a society that just makes its rules based on the whims of some dictator with no philosphical justifications as to the morality of those rules.
Governments certify marriage for the same reason that governments keep land registers and governments require wills to be signed by two witnesses who are not beneficiaries under the wills.
The time when governments didn't get into the marriage business was the time when all the government cared about was extracting the greatest amount of taxes from everyone else so as to pay for the king's armies.
Once governments evolved a bit from merely being gangs of resource extractors, marriage became an issue. In medieval Europe, the church had courts that would conduct investigations trying to figure out if a couple was really married (this was back when it all marriage required was two verbal promises that could be given in private). This tied up a lot of resources in litigation.
If the government gets out of certifying marriage, then I predict the most significant result will be the transfer of large amounts of money to lawyers, as people fight over whether two people are married or not.
No. My spouse is my spouse. He is an entirely different person to a stranger. He is a member of my family. And, unlike my neighbour or my friend, I have entered into a contract to make him a family member. For a start, he's the beneficiary under my will, and if there's something wrong with my will he'd still be my beneficiary as he's my husband, and he's the one I want making decisions about my medical treatment if I'm incapacitated, not my neighbour.
If the government doesn't distinguish between marriage and not, then how can it know that we are family members, not neighbours or strangers?
Don't you have to already? I thought a marriage certificate was part of the ceremony. If two people want to get married in a religious ceremony, and the religious ceremony can be conducted in such a way as to met whatever the state thinks is necessary to be confident that the marriage actually was performed[1] and that both parties consented, then I can't see any reason to require people to have two separate ceremonies. The French and the German system strikes me as silly. I can't see that the NZ or American system of letting people combine civil and religious marriage at once has caused any problems. (Note, I'm not religious myself, and was married in a civil ceremony).
[1] Imagine the case of a rich old widower who hires a housekeeper. Eventually the old man dies, and the housekeeper claims that they got married the night before his death. She has a piece of paper with both their signatures on it, and nothing else. The old man's children says that's nuts, and that she forged his signature. Assume that the old man died of purely natural causes, so we can't assume the problem away by deciding that one party murdered him and thus has no inheritance rights. How are the courts to decide who is right if all the evidence of marriage is the word of an interested party and the signature of a dead guy? Therefore the state has an interest in requiring more evidence that two people actually got married than just a signature. Just as the state also requires wills to be signed by two people who are not beneficiaries. What is the appropriate level of precautions to take to check that a marriage actually took place is of course another matter, possibly the state now is too risk-averse. But the state does have an interest in regulating marriage due to the potentially very high stakes.
Tricstmr has it exactly right. Marriage is a civil law matter and has nothing to do with religious rights. The term "marriage" is completely confused in both state and federal laws.
This confusion has enormous implications: there are over 1100 specific civil rights given to married couples in the United States. THESE RIGHTS ARE NOT AVAILABLE TO GAY COUPLES BECAUSE THEY CANNOT BE MARRIED. For example:
1. The legal right to visit your partner in an Intensive Care Unit
2. The legal right to make medical decisions if your partner is critically ill and unable to make decisions on his/her own.
3. The legal right to inherit property from a deceased partner
4. The right to sponsor a foreign partner for immigration to the US (This is federal law).
5. The right for survivor benefits under social security
6. The right for special state/federal tax benefits (joint filing)
7. The Defense of Marriage Act signed by Pres. Clinton in 1996 specifically denies gay Federal Govt. employees from the benefits of medical insurance to their partners
There are not just passing/unimportant differences. They have ENORMOUS consequences for gay couples. My Spanish partner and I have been together in a 100% monogamous relationship for 7 years. he is in perfect health, a University graduate and has reached the pinnacle of professional achievement as a Software Architect. Because I have had a successful career and investment history, we naively believed that U.S. Immigration would readily allow me to sponsor Tomas for a green card: NOT SO! These rights are ONLY available to married couples. As a consequence, I had to choose between my country and my partner. Almost 2 years ago, I moved to Barcelona Spain!
It has not been easy: I lost my Medicare benefits, had to adapt to a new culture, learn two new languages, abandon my two grown children/only grandchild and a wide circle of friends. All of this occurred because it was not possible for us to marry.
The law must be changed - at both a state AND federal level. Gays must have equal civil rights in America, just as they do in Spain, Belgium, Great Britain, the Netherlands and South Africa. Gay Marriage is a civil matter and not to be confused with sacred religious rights.
Responding to A Guy:
There is literally nobody in the gay community that would deny the benefits that traditional marriage should bring to society. I say that because having both a father and mother is the best way to have a safe and effective environment for raising children (I say that despite the fact that in 2006 in the United States, 70% of the black babies/40% of the white babies were born out of wedlock).
What I don't get is why you seem to believe that gay marriage in any way threatens traditional marriage?
You say that there is no societal benefit to any but heterosexual marriage? What of the marriage between elderly people who can't have children? What of the marriage between young people who have decided not to have children? Do these benefit society? Should they be recognized? Why should they be able to get married when gay couples can't get married? How is it that society is benefitted more from those unfruitful marriages than from gay marriage? Why should they enjoy the 1100 rights that come with marriage when gays cannot have those same benefits?
Although a largely failed institution, given the 50% divorce rate among heterosexual couples, gays deserve precisely the same rights as heterosexuals. It is a civil matter. The granting of marriage rights to gays IN NO WAY threatens traditional marriage.
Every day a small portion (perhaps 5%) of the babies that are born will be wired with an attraction to their own gender. This minority of people should not have rights taken away from them because the other 95% don't understand them or don't accept them. Giving them the same rights does NOTHING to threaten your marriage or the traditional institution of marriage.
Some people are born gay. Just get over it!
No religious basis at all? These decisions were taken centuries ago, back when atheists were a very small minority. Do you really think that they were unaffected by religious values?
From the Bible: "And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man. Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh" (Genesis 2:23-24).
"And Adam gave names to all cattle, and to the fowl of the air, and to every beast of the field; but for Adam there was not found an help meet for him" (Genesis 2:20). " (The implication being that Eve would be the helpmeet. )
"So ought men to love their wives as their own bodies. He that loveth his wife loveth himself." (Ephesians 5:28)
" Let the husband render unto the wife due benevolence: and likewise also the wife unto the husband. " (1 Corinthians 7:3)
So we have the notion that husband and wife are one, and that husbands and wives have duties to care for each other. Now, if we agree that you can make decisions about your own medical care, and if we also take a religious view that in marriage two people are one, then if one part is incapacitated then surely the other part has the right to take decisions? So we get next-of-kin for hospital vists and medical decisions. The religious duty of And if husband and wife are one, and if you cannot be forced to testify against yourself, then logically your spouse cannot be forced to testify against yourself.
The specific obligations of visting your spouse and not being required to testify come from general principles.
I am an atheist myself, but I don't think it is possible to really understand pre-20th century Europe without a good knowledge of the Bible. And that includes the development of marriage laws. The various civil benefits of marriage strike me as quite compatible with putting into practice the principles of the bible and I have trouble believing that the lawmakers were not thinking as Christians when they passed them.
Whether we should have those civil benefits is a separate question of course. The only argument I am addressing here is the argument that civil marriage's benefits are independent of the religious meaning of marriage.
I believe the understanding was that Christians sometimes required the assistance of the law in living their religious obligations. I think that we can all agree, whatever our opinions about the powers of God, that many people have been prevented through the centuries from carrying out their religious beliefs by their governments. For example, let us consider a Christain woman who interprets Genesis 2:20 as requiring her to visit and care for her husband when he is in jail. Now, if the law does not permit her to visit or have any communication with her husband, then there is a conflict between the law and her religious beliefs.
Don't we roughly have that? The government doesn't enquire about your religious beliefs when you get married, or require that you agree to a good Christian/Muslim/Buddhist/etc marriage. Instead, it provides a civil contract, which it enforces. Religions can perform their religious ceremonies, including ones with no legal meaning (for example, mass), as long as they don't breach any general laws in the process (eg noise limits, fire hazards, murder). What's there for the government to get out of that it should be getting out of?
Even if one uses a religion or morality-based argument to opposed same-sex marriage, which religion gets its say? Our Constitution prohibits favoring one over another.
Some religions don't have a specific stance on same-sex marriage, and a few support it. Don't they matter? Whose morality is the right one?
(Please say John Locke's.)
Megan,
I'm sure you don't realize this, but having the government get in the marriage business was actually very liberating. Before that, marriages were only performed through churches, and if you happened to belong to the wrong church then you couldn't get married. Take for example Ireland, where under English rule marriages could only take place in Anglican churches. So if you happened to be, let's hypothetically say, oh...a Catholic, then guess what? You couldn't get married.
Besides, I thought you were against polygamy. After gay marriage comes polygamy. There are already some fringe libertarians coming out for the FLDS. What do you think they are arguing for?
Well said Jon Henke. While I am a colleague of yours and might superficially be seen as an empty supporter, that I studied gender and sexuality while at the University of Chicago and consider myself a libertarian, I feel I do have the right to opine along side you in spite of my biased connection to you.
I would add to your Lockian notes that "The divine law" does not in fact exist a priori as folks would like to think it does; rather, it in and of itself is something that is subjectively interpreted through the lens of "The law of opinion or reputation," further complicating any Divine Law vs. Civil Law distinction. Without getting too academic here, but pushing for a logic-based perspective: we as a predominately heterosexual society have performed a heretonormative exegesis of the Bible when it comes to understanding male/female, male/male -- and, mildly, female/female -- relationships. This has dramatically colored both our Divine and Civil laws over the years.
And other than the whole 'we were all created equal' doctrine, this exclusionary approach makes sense: you protect what matters to you and what matters to you is what you know. Anything outside of that is fair game for exclusion.
The next note I would add would be one of historical context. As the Chicago historian George Chauncey, along with others, has pointed out: the civil and divine codes that we force upon the definition of marriage have not ruled since the beginning of time. Rather, we have come to narrow -- and expand, and perhaps narrow again in the cases of some states -- our definition of marriage as is fitting for the times; whether it be for economic reasons (kinship, exchange of property), cultural reasons (polyandry and polygamy), romantic reasons (love?) and yes, even good old procreation (regeneration).
So here too we see that the Civil Law is colored by the "law of opinion or reputation."
Opinions, cultural priorities, laws and reputations all change. So to stand and beat one's chest over the "sanctity" of heterosexual marriage being "threatened" by the inclusion of the gay community is painfully fleeting.
What isn't fleeting? What isn't a moving target? What isn't colored by the lens of subjectivity that we all pack around, whether we like it or not?
Equal rights. Equal treatment. EQUALITY ON ALL FRONTS: In the eyes of God, Man and The Law. For everyone. End of story.
Thanks again Jon for facilitating an extremely important discussion. I hope that the commenters on this thread so far can pull back from rooting around there in the weeds to see that.
"The time when governments didn't get into the marriage business was the time when all the government cared about was extracting the greatest amount of taxes from everyone else so as to pay for the king's armies."
Who's to say that's not happening in 2008? We're playing very many war games and have many more war games to play and someone's going to have to share their earnings for that to happen, or Big Brother will simply have to continue to counterfeit its own money supply to pay for it all. And when this inflation balloon eventually pops and our dollar is not worth the salt in our tears, then we'll just merge Canada, the U.S. and Mexico into the North-American-Union, create a new currency called the Amero, and continue the process of decay all over again.
The solution is to neuter government, so that its only function would be to protect individual rights and contracts, and nothing more.
Besides, I thought you were against polygamy. After gay marriage comes polygamy.
And then guys marrying their turtles, right?
I've never understood the claim that granting marriage rights to homosexuals inevitably leads to polygamy (and child marriage, etc).
Why? What's the logical progression there?
This will not promote a more pro-marriage, pro-monogamy society. This will turn marriage into a civil rights issue, which means that anything the government does to favor traditional marriage over other arrangements (single motherhood, gay marriage, etc) will be lawyered out of existence.
We've already allowed marriage to be battered by social radicalism; we need to stop engaging in dangerous social experimentation and return to what is tried and proven: a man and a woman legally bound together and living with their children.
The time when governments didn't get into the marriage business was the time when all the government cared about was extracting the greatest amount of taxes from everyone else so as to pay for the king's armies."
Who's to say that's not happening in 2008?
Well, reality says that's not happening in 2008. The US government is still issuing marriage licences, people are still being prosecuted for violent crimes, coroners are still investigating decent bodies, people are still suing each other in the civil courts, wills are being probated, etc.
A country can conduct a war while still undertaking basic machinery. The UK government during WWII was far closer to total collapse than the US government is today, but it still managed to record deaths, births and marriages, probate wills, hold court cases, etc.
The solution is to neuter government, so that its only function would be to protect individual rights and contracts, and nothing more.
Given that many individuals want to marry, if the government is going to protect individual rights and contracts it's going to be involved in marriage. After all, marriage is on a legal level a contract between two people.
I wouldn’t have put it in quite those terms but I agree with your basic premise. This rubbish about “let’s get the government out of marriage” is pretty much a solution in search of a problem.
Dead bodies, not decent bodies. Drat
"I've never understood the claim that granting marriage rights to homosexuals inevitably leads to polygamy (and child marriage, etc)."
For a long time, the definition of a marriage was an agreement between one man and one woman. It was supposed to be a lifelong partnership, if I remember the typical vows correctly. If there is no reason it should be between a man and a woman, then what reason is there for it to be between only 2 people? I can't think of a single reason why 3 private individuals shouldn't be able to enter a marriage, and I've never heard a good argument on this from any pro-gay marriage advocates either.
Like I said, some libertarians are already giving their tacit support for polygamy.
"Thou Shalt Not Steal"
Seperation of Church & State?
The "answers" to the structural legal problems of polygamy, polyandry & polyamory are already being met with calls for a "menu approach" to various group contracts for living & sexual relations.
The fact of the matter is that Megan Mcardle post doesn’t go into the very real and practical reasons why gay marriage will lead to these multiple family forms being recognized in the law.
Both on legal grounds that cannot principally justify excluding these arrangements under the same reasoning that California has used to give us same-sex “marriage” & on the political reality that large numbers of prominent academics and influential legal scholars have already called for such a move.
http://www.beyondmarriage.org/full_statement.html
Indeed, it is the hottest field in family law and represents the new advanced guard in progressive circles. This is the case in the U.S. & in multiple foreign countries including Canada, who’s influential governmental law commission has recently called for the legal establishment of polygamy.
“There is no slippery sloooooooooooooo…………..”
“Thud”
Re: This will turn marriage into a civil rights issue
You are 40 years too late. Loving vs Virginia already did that back in 1967.
Re: We've already allowed marriage to be battered by social radicalism;
Marriage has not been battered by "social radicals". That's scapegoating. Marriage has been battered by millions of ordinary citizens, many of them conservative and Christian, who have made choices not to marry or not to stay married. Those are the people you have an issue with.
"And then guys marrying their turtles, right?" Andrew Lias
TR: It's insulting to compare a cultural tradition going back millennia to bestiality. Although complicated and problematic, Polygyny has a much more clear history as a form of marriage than SSM. I believe there might have even been some American Indians who practiced it, which, if true, means it's been in America longer than the US has.
Granted some American Indian tribes also allowed transgendered people to marry someone of their own sex. However the idea of "you can marry someone of your own sex if you live as the opposite one or get the operation" probably has no support.
"Marriage has been battered by millions of ordinary citizens, many of them conservative and Christian, who have made choices not to marry or not to stay married." Jon F
TR: People always had the choice to not marry. In colonial Pennsylvania a good percent of Quaker women were spinsters and Catholic priests were allowed in because of Quaker tolerance. Although the idea of "not marrying but having a long-term sexual relationship" was quite rare until recent times.
Re: People always had the choice to not marry.
True. I Should have written "People who chose to live together and/or have children without marrying"