My son and I had an interesting conversation the other day on the subject of gay marriage, which has been much in the news lately. He is of a generation for whom sexual orientation is an absolute non-issue. I come from a different time and have had to work my way there, which I think I’ve pretty much done. Given my son’s perspective, the controversy about gay marriage makes utterly no sense to him. He cannot fathom why anyone would object.
He is, however, an interesting young man who thinks about things in interesting ways. So he started our conversation with this question: To the extent that marriages are sanctioned by religion, doesn’t the separation of church and state imply that the government shouldn’t recognize ANY of them?
Now, an argument can be made that if the government recognizes ALL religiously-sanctioned marriages, it isn’t favoring one religion over another, in which case the establishment clause of the Constitution wouldn’t apply. And since you can get ordained online by the Church of I’d Like to Own My Own Central American Republic and use that credential to marry people, perhaps that argument is right.
But my son’s observation raises an interesting issue. When people marry in a church, temple, mosque, synagogue, etc., two separate events occur. One is a cultural, but not legal, endorsement of their decision to unite. The other, which occurs whether or not the marriage is sanctioned by religion, is the establishment of a contract between the bride and groom.
There are two big buckets of law, civil and criminal. A couple of Madonna’s marriages perhaps notwithstanding, contracts fall under civil law. So, ALL marriages are, in fact and by definition, civil unions. This is personal M&A.
That got me to wondering – since marriages are really just contracts, can we learn anything by looking at the circumstances under which the government tells two parties who want to enter into a contract that they won’t be allowed do so?
I could only come up with two such circumstances:
One is that the contract would be anti-competitive. As applied to marriage, this seems like it justifies the prohibition against polygamy. That makes total sense to me. After all, the last thing I would ever want would be for some guy who’s a lot more attractive than I am to be allowed to take five women out of circulation.
The other, which comes specifically from the arena of marriage, is that the person you want to marry is your sibling or your first cousin. There is a compelling public interest in this case, which is not the prevention of yuck, but rather the prevention of seriously deformed children.
Which raises an interesting question of its own: What happens to that compelling public interest when you and the sibling or cousin you want to marry are of the same gender?
Being, for a moment, as serious as I can be (which is not all that serious), I know that these sorts of social issues are truly important to many people. I genuinely don’t understand why, since, at least in my mind, “It’s none of your business” seems like a pretty good definition of liberty. And with the ice caps melting, the economy being propped up by toothpicks, and the wonderful people at Rosetta Stone having a hard time keeping up with demand for Mandarin Chinese, I can help but wonder. . .do we perhaps have bigger fish to fry?
Carp Diem 
“do we perhaps have bigger fish to fry?”
Certainly. Which is why we should let gays marry and be done with it as fast as possible. 🙂
And, you make no reference about disallowing cross species union, so perhaps wedding the fish instead of frying it would be okay?
Clearly the covenant is not part of the civil contract, or the state could close it’s deficit with “failure to honor and cherish” fines. Violation of vows is not considered a true breach of contract, there are no consequential punitive damages. Dammit.
Love JR’s comment about cross species union! Marry the fish instead of frying it–classic! This would also avoid a murder conviction.
As an elementary school teacher, we now have an increasing number of students in our school with “two mommies” and no daddy. Mommy goes to a sperm bank and makes a withdrawal (and then a deposit–nyuk nyuk) and poof….we have children who have a whole host of issues the mommies never thought of. These children are excluded from birthday parties, sleep-overs, etc. I can only imagine what will happen when they get to junior high. Even though I am from a different generation, I have adopted the philosophy of “live and let live”. However, what about these children who were born into a situation and are forced to deal with issues beyond their years?
Indeed those with a grip on important things have much bigger fish to fry. Those lost in the mists of irrational fact denying fanatical belief based on their interpretation of what a bunch of old guys said (which some apparently even believe was said in modern English) in the distant past before anything at all relevant to modern reality existed…have no big fish.
@playaflute:
It’s a shame that children with gay parents are picked on, but it’s a problem that has nothing to do with gay people or their decision to adopt or have children.
Let’s say a child adopted at birth by a gay couple is picked on at school by a group of other children. Let’s suppose further that the harassment was unprovoked, save for the victim’s admission that yes, he has two fathers and no mother. If we consider the children to be the only involved parties, I’d guess we can agree pretty easily where the blame lies.
So, let’s examine the role of the parents in this. What do we know about the victim’s parents? They… adopted a child. That’s all I’ve got. The parents of the other children have, somehow, allowed their children to grow up into homophobic bullies. One wonders where, exactly, such children might have learned not to like gay people, or the children of gay people. And why any parent would tolerate aggressive, hateful behavior from their child.
And one might even be inclined to wonder why we’re discussing whether or not gay people should raise children, instead of why it’s assumed that just because someone is straight, they’re a fit parent.
I’ve been telling everyone who will listen to me for a long time that the government has no business being in the marriage game. The biggest problem is the use of the word marriage, which has a basis in religion; the thought of government dictating to a church or other religious organizations the definition of “marriage” does and should irritate the leaders and patrons of those religious organizations.
It has always seemed to me there are two components to getting hitched, as you point out as well: a governmental component/contract, and the optional religious sanction. When a couple goes to the courthouse for the state sanctioned component, they should receive some sort of civil union (i really dislike this term) or partnership license which gives that couple all of the legal and monetary benefits of what we know as “marriage,” and at that point, if they choose to have the license sanctioned by a religious organization at that point, great, but the marriage component shouldn’t add any additional legal or monetary benefits outside of the church.
Frankly, to sidestep all of this nonsense, I think there’s a great opportunity for a small but enterprising state such as Delaware to come up with a domestic partnership LLC license. Seems to me that codifying the terms of the terms of the union as well as the potential failure of the union makes a lot of sense,because frankly, Dan, the marriage contract you speak of is not a very well-written document and sorting out the details of a failure makes a lot of attorneys rich.