Monday, May 19, 2008

California court decision prompts modest proposal

Some years back, when the "gay marriage" movement was just gaining steam, I made a proposal that was immediately ridiculed by friends on both the Right and the Left.

One colleague, in particular, a Democrat in DuPage County (and therefore a True Believer... as she was often so alone out there... although even DuPage has gotten 'purpler' since) called my suggestion "cowardly."

Last week's decision by the California Supreme Court, however, spurs me to renew that suggestion now: I propose we get the State out of the marriage business altogether.

Many churches -- most, I dare say -- would not recognize homosexual marriages. But some would. Churches have monopolized the marriage business in this country for years, if not forever. Sure, one could always go to City Hall to tie the knot -- but that was never necessary. Only a license was required -- a registration that a particular type of partnership, a marriage, was about to be entered into.

And, in the law, we have treated marriage as a partnership contract. It has been a particular kind of contract in the past, a contract that could only be entered between a man and a woman, a partnership that may produce offspring instead of widgets. And the law in many states -- even those that don't recognize gay marriages -- has evolved to acknowledge "domestic partnerships" that are similar to marriages in all respects except the name.

I say the State's real interest in marriage is in registering the partnership -- the licensing part. Determining that this partnership is a marriage and that one is not strikes me as legally unnecessary. Public registration is really necessary so that, in the event of a dissolution of the partnership, one partner can not be unfairly disadvantaged and become a burden on society.

Now, after thousands of years, in the span of a couple of decades, a clearly understood societal standard has moved. Or has been moved by activist judges. Or has been moved by crusaders for social justice. I don't care who moved what! The line has moved.

And it may move again.

After all, the Old Testament recognized plural marriage. If marriage is no longer to be exclusively a union between one man and one woman, why can't a Mormon have as many wives as he can afford? Gay marriage may have no Biblical roots -- but polygamy does. Moreover, the Qur'an certainly permits a Muslim man to have more than one wife. Must we expect, then, that "marriage" must be redefined to include polygamy too?

And, if we will permit polygamy, must we not also permit polyandry? Why shouldn't a woman have multiple husbands... if she wants? (Maybe one of them will leave the toilet seat down.)

In fact, as long as we're at it, why shouldn't Bob & Carol & Ted & Alice be permitted to enter into a group marriage if they so choose?

No, I'm not trying to ridicule my own proposal: If who may form a "marriage" is now a civil rights issue, a matter for individuals to decide according to their own consciences, and for courts to enforce regardless of what "majorities" say, why shouldn't we expect individuals to come up with all sorts of ideas about what a "marriage" should be?

It was, at one time, easy to tell what was and was not a marriage. Now... well, contract law and partnership law are very flexible. Divorce law and the law involving the dissolution of business partnerships share many similarities. We can let the law decide how to relate to these new domestic arrangements without trying to make the state responsible for defining what marriage is.

I expect that, in time, there will be a new line.

I just don't know where it will be drawn. In the meantime, with gasoline at over $4 a gallon, good jobs leaving the country in droves every single day, and our schools producing illiterates, does it really make sense to waste so much public time and energy debating whether Ellen DeGeneres can get "married" to her companion?

I'm not asking anyone to change their views about what marriage is. My own opinions in this regard remain entirely unchanged by the 172 pages of California jurisprudence linked at the outset of this essay. I just want to get the State out of this suddenly-contentious business.


Empress Bee (of the high sea) said...

i am and always have been in the "live and let live" arena. funny, i have so many "lefty" feelings for someone who is a "righty"! ha ha ha

smiles, bee

Ben and Bennie said...

I think you'd be surprised at just how many folks agree with you. Here in South Carolina if you co-habitate with someone long enough you don't even need a license. It's called a common law marriage. Of course our state does not recognize gay marriages either.

Dave said...

The "State(s)" will get out of the marriage business the minute the people who want to dictate how other people live their lives aren't a majority of those in the government(s). Until then, providing the "legal right" to marry to men and men and women and women and combinations thereof is a legitimate business of the courts.

Maybe same sex marriage isn't a "fundamental right"; but, government has no interest, much less a compeling interest, in preventing it (constitutional legalese).

Kacey said...

Dear Curmudgeon, AMEN! With all the truly important stuff that needs attention, we don't need to be waylaid by nonsense. But, with the way this election fever is going... we can't bank on anything getting done anytime soon.

Smalltown RN said...

I couldn't agree with you more...let the state and the church get out of the marriage business....I mean is it really any of my business John and Joe want to my mother would's all well and good so long as no one loses an eye.....

Interesting topic Curmudge....nice to be back paying you a visit....

Linda said...

I'm probably wrong on this but historically wasn't there never really such a thing as a formal marriage to begin with? Weren't common law marriages the norm until someone decided that it needed to be recognized by law - probably someone who was a future divorce lawyer?

Patti said...

I read that first page of California jurisprudence...oy vey.

Now I'm glad I didn't go to law school.
How do you do it????

The Exception said...

I am all for removing the government from marriage and even having the government treat everyone as if they are single - no more benefits etc... everyone is equal and single.

That said, the government is needed to protect the rights of the minority groups - an I don't mean to treat them differently. I mean to ensure that they have the same rights as those in the majority.

Until the majority learns to protect the rights of the minority (because at some point, they might be the minority themselves) then the government has a job that must be done.

I don't see the majority considering the minorities rights at the moment or in the near future. Though I don't like government involvement in everything; I really don't like the majority deciding how people should live their lives.