The State Should Get Out of the Marriage Business

Oh dear. Bush apologist, McCain supporter, and former senator Rick Santorum has offered his addlepated opinion on the recent gay marriage ruling in California (Fedora Tip: 2 Political Junkies. He says:

“…The state Supreme Court there ruled, 4-3, that same-sex couples can marry. In doing so, four judges rejected a statute that passed in a referendum with 61 percent of the vote that defined marriage as a union of one man and one woman. It’s merely the latest in a string of court decisions that have overturned the overwhelming will of the people.”

As another blogger (a valedictorian law student no less) pointed out, sometimes the will of the people is in conflict with constitutional law. He says, “California’s Supreme Court did not override the will of the people; it simply looked at two different expressions of the people’s will and decided that the constitutional expression trumped the statutory expression, which is entirely proper.” I agree. If it is truly the will of the people of California to limit marriage to monogamous heterosexual couples, they’ll have to amend their state constitution.

That’s where things get a little ugly, though. First, the battle for the referendum will be be expensive and divisive. Second, only a simple majority is needed to pass the amendment. That, IMHO, leaves California vulnerable to tyrannical majorities. Yes, the 61% who voted for the now-defunct statute represent a clear majority. However, 39% is a rather large minority. Regardless of where people stand with regard to various controversial issues, I think most would agree that constitutional amendments should be difficult to bring about, so as to avoid these important guiding documents from being changed frequently and drastically with the shifting political winds. I would not call 51% majority, either in favor of or against a marriage amendment, representative of the will of the people any more than I’d call Bush’s 51% majority in 2004 a mandate.

But I digress. Santorum continues:

“What about the constitutional right to equal protection under the law? Marriage is not an inalienable right; it is a privilege, a license granted by government conferring certain governmental benefits.”

Actually, marriage is an expression of the right of free association. Also, the State shouldn’t have the power to confer any privileges or benefits. The government works for the people, not the other way around.

In an earlier interview, Santorum argued that there’s no constitutional right to privacy, which is ludicrous. There needn’t be an explicit “right to privacy” in the Constitution for it to be constitutionally protected. Anyone capable of reading the 9th and 10th Amendments should know that.

“There is a constitutional right that is under threat: the free exercise of religion.”

Since the State is mixed-up in a Church matter, that may be true, but I’ll get to that momentarily.

“Let me go out on another limb here and make another crazy prediction. Within 10 years, clergy will be sued or indicted for preaching on certain Bible passages dealing with homosexuality and churches, and church-related organizations will lose government contracts and even their tax-exempt status.”

Santorum may well be right here. After all, it’s started to happen in Canada. I’d agree with him that hate crime laws are essentially thought crime laws and should be avoided like the plague. However, this point is a red herring. The court decision only said that the statue barring gay marriage was unconstitutional. It didn’t say that gay marriage should be legal, nor did it say that barring gay marriage amounted to an act of hate to be punished.

“In Massachusetts, the first same-sex-marriage state, Catholic Charities, one of the state’s largest adoption agencies, was forced out of business because it refused to arrange adoptions for same-sex couples. In New Jersey, a Methodist group lost part of its state real estate tax exemption because it refused to permit civil-union ceremonies on church-owned property.”

If the State left charitable activities like adoption to private entities, Catholic Charities wouldn’t have been forced to comply with the State’s prevailing politically correct ideals. In addition, though I’d like to see taxes lowered across the board, I don’t think nonprofit entities should be exempt from taxes. The State holds that privilege over the Church like a damoclesian sword. Practicing theists should desire as little government intervention as possible, even if it would benefit them. After all, the State giveth and the State taketh away.

I believe the best solution to the gay marriage conundrum is for the State get out of the marriage business altogether. There should laws pertaining to contractual unions for the sake of insurance, inheritance, etc., but marriage should be a private affair mediated by religious institutions, if at all. That way, the Church can marry or not marry whomever it pleases and the State can limit itself to setting and protecting civil contract laws. Opposing viewpoints in favor of state involvement in marriage can be found at Taki’s mag and an old post on this blog, written by an anonymous author.

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About Funky Dung

Who is Funky Dung? 29-year-old grad student in Intelligent Systems (A.I.) at the University of Pittsburgh. I consider myself to be politically moderate and independent and somewhere between a traditional and neo-traditional Catholic. I was raised Lutheran, spent a number of years as an agnostic, and joined the Catholic Church at the 2000 Easter Vigil. Why Funky Dung? I haven't been asked this question nearly as many times as you or I might expect. Funky Dung is a reference to an obscure Pink Floyd song. On the album Atom Heart Mother, there is a track called Atom Heart Mother Suite. It's broken up into movements, like a symphony, and one of the movements is called Funky Dung. I picked that nickname a long time ago (while I was still in high school I think), shortly after getting an internet connection for the first time. To me it means "cool/neat/groovy/spiffy stuff/crap/shiznit", as in "That's some cool stuff, dude!" Whence Ales Rarus? I used to enjoy making people guess what this means, but I've decided to relent and make it known to all. Ales Rarus is a Latin play on words. "Avis rarus" means "a rare bird" and carries similar meaning to "an odd fellow". "Ales" is another Latin word for bird that carries connotations of omens, signs of the times, and/or augery. If you want to get technical, both "avis" and "ales" are feminine (requiring "rara", but they can be made masculine in poetry (which tends to breaks lots of rules). I decided I'd rather have a masculine name in Latin. ;) Yeah, I'm a nerd. So what? :-P Wherefore blog? It is my intention to "teach in order to lead others to faith" by being always "on the lookout for occasions of announcing Christ by word, either to unbelievers . . . or to the faithful" through the "use of the communications media". I also act knowing that I "have the right and even at times a duty to manifest to the sacred pastors [my] opinion on matters which pertain to the good of the Church, and [I] have a right to make [my] opinion known to the other Christian faithful, with due regard to the integrity of faith and morals and reverence toward [my and their] pastors, and with consideration for the common good and the dignity of persons." (adapted from CCC 904-907) Statement of Faith I have been baptized and confirmed in the name of the Father, Son and Holy Spirit. I, therefore, renounce Satan; I renounce all his works; I renounce all his allurements. I hold and profess all that is contained in the Apostles' Creed, the Niceno- Constantinopolitan Creed, and the Athanasian Creed. Having been buried with Christ unto death and raised up with him unto a new life, I promise to live no longer for myself or for that world which is the enemy of God but for him who died for me and rose again, serving God, my heavenly Father, faithfully and unto death in the holy Catholic Church. I am obedient to the Magisterium of the Catholic Church. That is, I promote and defend authentic Catholic Teaching and Faith in union with Christ and His Church and in union with the Holy Father, the Bishop of Rome, the Successor of St. Peter. Thanks be unto Thee, O my God, for all Thy infinite goodness, and, especially, for the love Thou hast shown unto me at my Confirmation. I Give Thee thanks that Thou didst then send down Thy Holy Spirit unto my soul with all His gifts and graces. May He take full possession of me for ever. May His divine unction cause my face to shine. May His heavenly wisdom reign in my heart. May His understanding enlighten my darkness. May His counsel guide me. May His knowledge instruct me. May His piety make me fervent. May His divine fear keep me from all evil. Drive from my soul, O Lord, all that may defile it. Give me grace to be Thy faithful soldier, that having fought the good fight of faith, I may be brought to the crown of everlasting life, through the merits of Thy dearly beloved Son, our Savior, Jesus Christ. Amen. Behind the Curtain: an Interview With Funky Dung (Thursday, March 03, 2005) I try to avoid most memes that make their way 'round the blogosphere (We really do need a better name, don't we?), but some are worth participating in. Take for instance the "interview game" that's the talk o' the 'sphere. I think it's a great way to get to know the people in neighborhood. Who are the people in your neighborhood? In your neighborhod? In your neigh-bor-hoo-ood...*smack* Sorry, Sesame Street flashback. Anyhow, I saw Jeff "Curt Jester" Miller's answers and figured since he's a regular reader of mine he'd be a good interviewer. Without further ado, here are my answers to his questions. 1. Being that your pseudonym Funky Dung was chosen from a Pink Floyd track on Atom Heart Mother, what is you favorite Pink Floyd song and why? Wow. That's a tuffy. It's hard to pick out a single favorite. Pink Floyd isn't really a band known for singles. They mostly did album rock and my appreciation of them is mostly of a gestalt nature. If I had to pick one, though, it'd be "Comfortably Numb". I get chills up my spine every time I hear it and if it's been long enough since the last time, I get midty-eyed. I really don't know why. That's a rather unsatisfying answer for an interview, so here are the lyrics to a Rush song. It's not their best piece of music, but the lyrics describe me pretty well.

New World Man He's a rebel and a runner He's a signal turning green He's a restless young romantic Wants to run the big machine He's got a problem with his poisons But you know he'll find a cure He's cleaning up his systems To keep his nature pure Learning to match the beat of the old world man Learning to catch the heat of the third world man He's got to make his own mistakes And learn to mend the mess he makes He's old enough to know what's right But young enough not to choose it He's noble enough to win the world But weak enough to lose it --- He's a new world man... He's a radio receiver Tuned to factories and farms He's a writer and arranger And a young boy bearing arms He's got a problem with his power With weapons on patrol He's got to walk a fine line And keep his self-control Trying to save the day for the old world man Trying to pave the way for the third world man He's not concerned with yesterday He knows constant change is here today He's noble enough to know what's right But weak enough not to choose it He's wise enough to win the world But fool enough to lose it --- He's a new world man...
2. What do you consider your most important turning point from agnosticism to the Catholic Church. At some point in '99, I started attending RCIA at the Pittsburgh Oratory. I mostly went to ask a lot of obnoxious Protestant questions. Or at least that's what I told myself. I think deep down I wanted desperately to have faith again. At that point I think I'd decided that if any variety of Christianity had the Truth, the Catholic Church did. Protestantism's wholesale rejection of 1500 years of tradition didn't sit well with me, even as a former Lutheran. During class one week, Sister Bernadette Young (who runs the program) passed out thin booklet called "Handbook for Today's Catholic". One paragraph in that book spoke to me and I nearly cried as I read it.
"A person who is seeking deeper insight into reality may sometimes have doubts, even about God himself. Such doubts do not necessarily indicate lack of faith. They may be just the opposite - a sign of growing faith. Faith is alive and dynamic. It seeks, through grace, to penetrate into the very mystery of God. If a particular doctrine of faith no longer 'makes sense' to a person, the person should go right on seeking. To know what a doctrine says is one thing. To gain insight into its meaning through the gift of understanding is something else. When in doubt, 'Seek and you will find.' The person who seeks y reading, discussing, thinking, or praying eventually sees the light. The person who talks to God even when God is 'not there' is alive with faith."
At the end of class I told Sr. Bernadette that I wanted to enter the Church at the next Easter vigil. 3. If you were a tree what kind of, oh sorry about that .. what is the PODest thing you have ever done? I set up WikiIndex, a clearinghouse for reviews of theological books, good, bad, and ugly. It has a long way to go, but it'll be cool when it's finished. :) 4. What is your favorite quote from Venerable John Henry Newman? "Ten thousand difficulties do not make one doubt." 5. If you could ban one hymn from existence, what would it be? That's a tough one. As a member of the Society for a Moratorium on the Music of Marty Haugen and David Haas, there are obviously a lot of songs that grate on my nerves. If I had to pick one, though, I'd probably pick "Sing of the Lord's Goodness" by Ernie Sands.

6 thoughts on “The State Should Get Out of the Marriage Business

  1. eeeee

    Valedictorian of a law school that isn’t accredited by the ABA isn’t quite as impressive to the general legal community (i.e., the legal community outside Fresno) as an accredited school would be. Just for your future reference. (The ABA is a racket in many ways — I’m just informing you about reputations of particular schools.)

    That said, there are some good points in this post that I would like to respond to when I am not so tired. In particular, I have some ideas about private contract law as it relates to marriages (as well as some religious contracts like the ketubah)…

  2. gbm3

    Also for opposing viewpoints see (“Institute for Marriage and Public Policy”).

    I believe that the institution of marriage should be regulated by the state (believe it or not). The state and society in general have a vested interest in keeping marriage strong. Otherwise, while families break down, society, which has the family as its foundation, breaks down. This breakdown leads to poorly formed/depressed /confused children, often hopeless/depressed adults, environmental problems (2x the waste in 2 households), and a loss of general happiness in society (plus kids who have more trouble in relationships).

    The problem with homosexual marriage in general is that it tells society that marriage is only about love, or the feelings one feels for another. Marriage is not just that; marriage is a union of a man and a woman that creates children in a stable environment. Ideally, both parents live together with their biological children.

    Love is important in marriage, but eros fades. If a true fidelity is formed between a man and women, if their lives are shared and given to each other, then marriage has a better chance of lasting (with God’s grace).

    Personally, I also believe that marriage exists only if a couple raises children (adopted or biologically).

    The state has a vested interest in saving marriage as it has for a long time.

  3. Funky Dung Post author

    Good morals, in this case good marriages, cannot be created or protected from the top down through intrusive and oppressive laws. Respect for sacramental marriage must be promoted from the bottom up, through families and churches. As far as the State is concerned, marriage should be merely a contract between consenting adults, useful in matters of inheritance, health benefits, and guardianship of children. I agree wholeheartedly with you definition of marriage; I just don’t think the State should be concerned with a matter that is clearly in the jurisdiction of the Church.

  4. gbm3

    I disagree. In addition to my list above, the state also has a major stake in producing (crude but truthful word) upstanding citizens in addition to FD’s list. By keeping marriage strong, children of families that have one mother and one father do better in school and therefore do better to contribute rather than suck life out of society. (see Maggie G.’s site at and on the CA decision and “David Blankenhorn’s The Future of Marriage and Linda Waite and Maggie Gallagher’s The Case for Marriage” (which are on my reading list).)

    The added benefits that FD lists are ultimately to produce said citizens in a second-degree manner in my reckoning. A marriage contract is a parenting pseudo-license.

    Letting gays (practicing homosexuals) marry breaks down the heart and soul of why there are marriage benefits. A large percentage of gays do not have children, so marriage benefits are like having marriage benefits with a sibling. Secondly, and more importantly, the institution of marriage is seen less as an institution to raise children on a permanent basis than more of a contract between sole lovers who will probably want to end the contract once the passion is lessened or gone. This mindset is executed by non-gays to the detriment of society by producing worse off children, and hence the future society.

    My definition of marriage deepens the reasons why marriage is so important and beautiful, but civil authorities and secular society at large have a large stake in keeping (real) marriages strong.

  5. Funky Dung Post author

    I should clarify my stance on marriage and children as they relate to the State. The State should get out of the business of adoptions as well. They should be exclusively the province of charitable organizations.

    Put in pragmatic terms, if social traditionalists wish to determine who may marry and who may raise children, they need to get the State out of their way. You’ll never see the kind of “production” of “upstanding citizens” you desire as long as Caesar dictates what “upstanding” means and who may participate in “production”. You won’t get far trying to change the hearts and minds of the people by changing Caesar. You’re far better off changing hearts and minds so that they change Caesar.

    Finally, if you still wish for the State to define marriage and family in traditional terms at the federal level, you’ll need a constitutional amendment. That’s the only way to revoke a right reserved for the people or the several states (c.f. prohibition). Until that happens, anything the federal government does regarding either is outside of its jurisdiction.

  6. Pingback: Pittsburgh Domestic Registry a Good Idea @ Ales Rarus

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