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.

Comments 5

  1. eeeee wrote:

    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)…

    Posted 28 May 2008 at 11:31 pm
  2. gbm3 wrote:

    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.

    Posted 29 May 2008 at 10:14 pm
  3. Funky Dung wrote:

    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.

    Posted 29 May 2008 at 10:50 pm
  4. gbm3 wrote:

    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.

    Posted 03 Jun 2008 at 4:51 pm
  5. Funky Dung wrote:

    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.

    Posted 03 Jun 2008 at 5:13 pm

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    […] seems to be exactly the kind of contractually binding civil union I've alluded to. It's also very similar to the solution the University of Pittsburgh found for gays demanding […]

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