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Time to Get Government Out of the Marriage Business

Marriage is, at bottom, a religious custom -- a place where government's writ must not run.

by
Frank J. Fleming

Bio

March 11, 2013 - 12:17 am

The consensus is that the future is already written on the gay marriage issue. We know how things are going to turn out, and we’re in the final act, moving toward the inevitable. The opinion has shifted only in one direction, and turning that tide seems as unrealistic as gun-control proponents convincing states to repeal shall-issue carry laws. Views on gay marriage have changed so much that Obama needs to lie less and less about his actual opinion of it, and it’s well-known that Republicans will be doomed with the next generation if they continue to oppose it. Plus, everyone is certain that one day soon, all of us who don’t have a NoH8 picture with tape over our mouths will hang our heads in shame for being on the wrong side in the big civil-rights battle of our generation. And you know that when everyone is sure of how the future will turn out, that’s exactly what will happen.

Still, I’m conservative, and it’s my job when everyone is so set on a specific direction to stand athwart history yelling, “Mop!” (you’re more likely to stop history if you confuse it), so here I go: This is all incredibly asinine. And I’m not talking from a religious perspective; I’m talking from a libertarian perspective — and though I usually identify as conservative, I tend toward the libertarian perspective unless a) I have a really compelling reason or b) I’m having a bad day and want the government to punish anyone who disagrees with me. And from that viewpoint, this is a really stupid debate, and I don’t understand how everyone else doesn’t see this.

I don’t say this lightly, as I know this issue means a lot more to some people than it does to me. “The state is standing in the way of people’s love!” they say, and I don’t mean to be clichéd, but we’re not talking about love here — we’re talking about marriage. And while so many see this as a big civil-rights issue, there are no rights involved at all. Wanting legally sanctioned marriage is asking the state to do something for you, and rights, luckily, don’t involve the state having to do anything, or we’d all be screwed.

Let’s take a moment to look at what marriage actually is. Is it just a legal agreement between two people enforced by the state, or is it something else? The fact that civil unions aren’t seen as equivalent suggests that most see it as something else. And if it’s something other than some legal agreements, that leads to the obvious question: Why the hell is the state involved in it?

Because here is what marriage is in America and why this issue has caused so much contention: It’s a religious custom written into law. Specifically, it’s a Christian religious custom written into law (that’s why plural marriages have never been legal in the U.S.). Sure, marriage exists in every culture, and even the secular engage in it, but at its heart it is a very religious institution. And opponents of gay marriage rightly see changing the definition of marriage from the union of one man and one woman to be the state coming in and altering religious tenets. It’s like if the state started to dictate what is considered a proper baptism. It’s a clear violation of the First Amendment to have the state come in and just start changing things.

But while I consider what gay marriage proponents are trying to do to be a wrong remedy, it’s easy to see why they’re winning the argument, as the opponents of gay marriage don’t have a better argument for trying to keep the status quo. For one, homosexuals rightly get a lot of sympathy for how horribly they’ve been treated throughout the years, and opposition to gay marriage is seen as an extension of this treatment. Also, they and their supporters correctly see an injustice here, as there are special religious privileges written into law.

It’s just that their solution to this injustice is wrong. If one has identified a religious tenet written into law, the appropriate response isn’t to have the state alter it as it feels necessary. If you’re a libertarian and arguing for that, you need to turn in your libertarian badge (keep the gun, obviously). Having the state fiddle around with religious tenets is a controversial and dangerous action that will have no end. Is anyone really so naive as to think that gay marriage will be the last marriage-based controversy ever? No, there is only one course of action that will actually end this: Marriage and the state need a divorce.

Some may see that solution as cutting the baby in half, but it really just finally restores some sanity to the issue. The state has never been good for marriage, and gay marriage is not the first marriage-law controversy; there have long since been arguments involving things like divorce — arguments often very religious in nature, i.e., the exact sort of arguments you want the state to stay away from. As a Christian, I feel very strongly about the separation of church and state, not as a protection for the state — who cares about the state? — but as a protection for the church. If we can learn one thing from human history, it’s that anything government gets involved in becomes corrupted. And marriage is very important, so it’s something you want to keep the government far away from.

All the government should do is write up a suite of legal contracts between two consenting adults (or groups of consenting adults — let’s just head off that next controversy) that can be signed in front of a lawyer. If you want a religious ceremony and want to call it a marriage, that can be done before or after you sign the legal documents, but the ceremony itself will have no more direct legal consequences than, say, a Catholic confirmation ceremony. And everyone can continue to argue what is considered a proper marriage and what isn’t, but that debate will be moved to the best place for all contentious debates — to a place where it has no legal bearing on anyone.

So, to conservatives who want to preserve marriage, it’s time to stop moping around waiting for the inevitable day when the Supreme Court decides that the Founding Fathers hid gay marriage in the Constitution (probably in the Commerce Clause). It should be obvious by now that the status quo isn’t going to hold. What isn’t determined yet is where we’re headed, and it’s time we take charge and move things in a sensible direction. The right needs to propose the radical, new, progressive idea that the state should never have been involved in marriage in the first place.

And if you get only one thing from this column, it should be this: NoH8 people, stop taking pictures of yourselves with tape over your mouths. What in the world is that supposed to symbolize? Are you saying people are being silenced — that no one is speaking out about Prop 8 and gay marriage? If so, I don’t know what planet you live on. So stop it with the tape; it makes no sense.

Frank J. Fleming is the author of Punch Your Inner Hippie, coming November 11th, and the science fiction novel Superego, coming later this year, writes columns for PJ Media and the New York Post, and blogs at IMAO.us, and if he were president, he'd never be seen on the golf course during international crises, because he'd be in the White House basement playing video games.

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Top Rated Comments   
"Thank goodness our constitution protects us from a religious theocracy form of government. I personally, wouldn't much like any government dictating a particular religious doctrine for me and my family."

Be careful what you wish for, partner, you might just get it.

The fundamental fact is that SOMEONE'S morality is always going to be legislated...we are simply debating over WHOSE morality it is going to be.

Pretty much, you have a choice of having some homosexual pervert leering at your 14 year old son in his gym class, a Muslim wrapping your daughter in a burkah for the rest of her life, or what has been our traditional definition of normal human sexual congress.

Choose wisely.
1 year ago
1 year ago Link To Comment
Unfortunately, everything in the article is flat wrong.

BTW, referring to http://www.ruthinstitute.org/index.html and also to the excellent book on human societies "Man on Earth" by John Reader, marriage has always - since the beginning of human society - been defined as a legal contract between a man and a woman. Although there may be additional clauses, the fundamental basis is that she allows him sexual access and agrees to bear his children, he agrees to protect and provide for her and those children. The purpose of the marriage contract is to ensure that children (which after all are essential to the perpetuation of any society) are cared for and raised in a socially responsible manner conducive to an orderly society. ("Bastard" has always been in insult, since it implies that one grew up without the civilizing influence of a father).

Because the marriage contract is a contract, it is the concern of and subject to governmental concern. It always has been, and this Progressive assertion that marriage is somehow a purely religious function is a load of horse-hocky. Now of course all religions bless marriages, and in many societies (but not all) religious officials are authorized by the state to conduct marriages; however, marriage is and always has been a civil function. When Jesus asserts that in heaven people will neither marry nor be given in marriage (Matthew 22:30, etc) it probably isn't because there are no longer men or women, or even sex (I'm guessing), but because there is no longer a state.

It is important to note that this definition of marriage has held even in those societies that accept homosexuality (which, really, is most cultures outside of the Judeo-Christian heritage). The most notorious example of this is ancient Sparta, where homosexuality was ingrained in the culture to such an extent that wives literally had to pretend to be young boys in order to have sexual intercourse with their husbands. Nonetheless, the basic institution of marriage was still held sacred. Likewise, in first century Rome homosexuality was accepted, and - just to show that there is nothing new under the sun - there was even a push to legalize homosexual unions as marriages. It failed.

This is not to say that there are not other aspects of marriage that are also important. Marriage serves to keep the sexual impulses of males in check - the western insistence on monogamy particularly allows "Beta" males access to wives and helps keep them out of trouble; it helps to keep the population in check (Reader points out that in almost all societies, the more restricted the available resources, i.e. on small islands, the more difficult it is to get married and the more stringent the penalties for sex outside of wedlock); and it helps to ensure that older members of society are properly cared for. A marriage of even a barren couple serves as an example to other couples, especially younger ones, of what a marriage can be, and helps serve these ancillary purposes even if no children proceed directly from the union.

You might notice that I have said nothing of love here. As was stated more or less explicitly in the marvelous play "Fiddler on the Roof," love proceeds from a marriage, as the spouses learn each other; 20 years or so after their arranged marriage, Tevya and Golda finally realize that they do, in fact, love each other quite deeply. It is desirable to have husband and wife love each other - realizing that what modern society defines as "true love" is really just infatuation - but it has never been part of the legal definition.

Polygamy - whether polyandry or polygyny - is defined as multiple simultaneous marriages, not one marriage with multiple partners. After all, if a man with two wives divorces one, the divorce doesn't affect the legal status of the other wife. Nor, in any polygamous marriage, are the two wives (or two husbands) expected to have sexual relations with each other.

Marriage is an institution designed since antiquity to support and promote the family. It is based on human biology, physiology, and psychology - both encouraging those elements which support a society and inhibiting those which harm it. We mess with the traditional definition at our peril.
1 year ago
1 year ago Link To Comment
Mr. Fleming, you need to turn your face away from the Mainstream Media, as you have apparently overdosed on their pro-Gay Cult propaganda.

You say that government affirmation of "Gay" Marriage is inevitable...on what evidence?

The vast majority of the states have amended their constitutions to limit the definition of marriage to what it always has been. Those states that have voted,(as opposed to having had judges dictate), to recognize "Gay" marriage are a small minority.

Proposition 8 did, in fact, PASS in California, and has only been prevented from becoming the supreme law of that state through the worst sort of Federal judicial paternalism...it is obvious that the desires of the few judges of the 9th Federal Circuit carry more weight than the will of the people of California expressed in plebiscite as provided by law.

Kindly do not embarrass yourself by citing polling data...as a Conservative after the 2012 General Election debacle, you should never trust what is put forth as "polling data" again.

No matter how much some undiagnosably mentally ill people, (thanks to the APA removing homosexuality from the DSM-III in 1974), and their political supporters may wish to convince everyone otherwise, "Gay" marriage is a dead letter...in the legal as well as the evolutionary sense.

Far from losing this battle, the supporters of trasditional marriage are winning...you have just been duped into thinking the opposite by watching too much TV.
1 year ago
1 year ago Link To Comment
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The bottom line is this: the Homosexual Normalization Lobby cannot provide a coherent rationale as to why law should create a legal fiction that homosexual relationships be treated as if they could be “marriages.” None of the reasons underlying the existence of the institution of marriage (e.g., biological complementarity, children) can ever naturally occur as a result of homosexual behavior. So, why legally redefine marriage so as to create the legal fiction that two (or more) people of the same sex can “marry?” And, if states create this legal fiction, what will be the limiting principle to exclude relationships with more than two participants? Further, what will the justification be for excluding two brothers, a father and two of his adult children, and two old women who are best friends and live together but don’t engage in homosexual acts from also demanding legal fictions be created that their relationships be called “marriages?”
1 year ago
1 year ago Link To Comment
It would be nice if people stopped acceding to the stupid euphemisms that the Left carefully creates to deceive the general public (e.g., marriage "equality"). Marriage law already treats everyone equally (i.e., anyone can marry one person of the opposite sex, who's of age, and consents). But that's not good enough for the Homosexual Normalization Lobby; they don't want to be treated equally under the law. They want special privileges to legally redefine a fundamental institution of civil society so as to create the false impression that their sexual behavior is the equivalent of normal sexual relationships (i.e., a man and a woman).
1 year ago
1 year ago Link To Comment
First, there is no such thing as a homosexual "marriage." There is only marriage. Marriage is the union of a man and woman in holy matrimony. Second, what is actually being debated is a change in the legal definition of marriage. Even if the legal definition was changed (as it has been in 9 states), marriage is still the union of a man and woman in holy matrimony. But, the law is saying otherwise. It is like the legal fiction of corporations being "persons" or "paying taxes." Corporations are not people nor do they pay taxes. However, they legally are and do. Similarly, two people of the same sex celebrating their sexual relationship is not, nor can be, a marriage. But, the law can call it that, thereby creating another legal fiction. A government could make a law that horses with stripes painted on them are zebras; but it does not make it so.
1 year ago
1 year ago Link To Comment
First, there is no such thing as a homosexual "marriage." There is only marriage. Marriage is the union of a man and woman in holy matrimony. Second, what is actually being debated is a change in the legal definition of marriage. Even if the legal definition was changed (as it has been in 9 states), marriage is still the union of a man and woman in holy matrimony. But, the law is saying otherwise. It is like the legal fiction of corporations being "persons" or "paying taxes." Corporations are not people nor do they pay taxes. However, they legally are and do. Similarly, two people of the same sex celebrating their sexual relationship is not, nor can be, a marriage. But, the law can call it that, thereby creating another legal fiction. A government could make a law that horses with stripes painted on them are zebras; but it does not make it so.

It would be nice if people stopped acceding to the stupid euphemisms that the Left carefully creates to deceive the general public (e.g., marriage "equality"). Marriage law already treats everyone equally (i.e., anyone can marry one person of the opposite sex, who's of age, and consents). But that's not good enough for the Homosexual Normalization Lobby; they don't want to be treated equally under the law. They want special privileges to legally redefine a fundamental institution of civil society so as to create the false impression that their sexual behavior is the equivalent of normal sexual relationships (i.e., a man and a woman).

The bottom line is this: the Homosexual Normalization Lobby cannot provide a coherent rationale as to why law should create a legal fiction that homosexual relationships be treated as if they could be “marriages.” None of the reasons underlying the existence of the institution of marriage (e.g., biological complementarity, children) can ever naturally occur as a result of homosexual behavior. So, why legally redefine marriage so as to create the legal fiction that two (or more) people of the same sex can “marry?” And, if states create this legal fiction, what will be the limiting principle to exclude relationships with more than two participants? Further, what will the justification be for excluding two brothers, a father and two of his adult children, and two old women who are best friends and live together but don’t engage in homosexual acts from also demanding legal fictions be created that their relationships be called “marriages?”
1 year ago
1 year ago Link To Comment
First, there already is equality (i.e., before the law) in marriage. I.e., marriage is the union of one man and one woman. And, anyone can participate in this institution if he wants. However, if someone doesn't want to join with one person of the opposite sex, then he doesn't want marriage; he wants something else. "Marriage equality" is a carefully crafted euphemism meant to mislead high-affect/low-information poseurs.
Second, the "author's" "libertarian" proposal (which isn't really his; it's repeated endlessly by most young libertarians who haven't lived long enough to have any appreciable amount of wisdom) fails. Why would a state want to issue civil union licenses? (1) That would create another totally useless government institution; (2) it would be totally redundant because contract law and powers of attorney already exist to facilitate those things; and, (3) how would marital dissolution be adjudicated? The state must be involved to enforce alimony support orders, child support orders, and property divisions. Nice try though.

1 year ago
1 year ago Link To Comment
In general, I agree with Mr. Fleming. However, I think he misses an important point: the real reason for gay marriage agitation. I think gay activists' real goal is to use government recognition of their marriages as a shortcut to acquiring such recognition in the wider society rather than embracing the hard work of convincing others without the state's coercion. Mr. Fleming is absolutely right. The state should only confer legal rights and I'm perfectly comfortable with gay couples being able to access the same legal rights and obligations as heterosexual couples via a civil union. However, when the state recognizes gay couples as being married, it gives activists a legal lever to attempt to force religious organizations to accept such unions. In Canada, where I live, gay marriage has been a fact for several years without causing many problems. However, some activists are threatening to sue churches that refuse to sanctify their unions or get the government to revoke their charitable status (an issue for another time). There's no question that many churches will sanctify gay marriages (Canada's largest protestant denomination, the United Church does). But this should be a private matter for those organizations without the State weighing in.

Peter Neville
Kelowna, BC, Canada
1 year ago
1 year ago Link To Comment
Mr. Fleming's most flawed premise is that the state apparently has some ability to destroy marriage by legally redefining it. While this is ironically the prevailing view, it is flawed. The reason is simple; marriage was never instituted by man, but by God, and therefore cannot be destroyed by man, regardless of any legislation.

However, man can destroy society by failing to recognize marriage as it has been from the beginning - the union of one man and one woman. Quite simply, marriage has and will survive with or without government's proper sanction, but government and society will not long survive without marriage. That’s why government and society have an immense interest in recognizing marriage as it has always been defined; with laws to that end.
1 year ago
1 year ago Link To Comment
That's exactly it. Thanks for your clarity.
1 year ago
1 year ago Link To Comment
Can't front. I expected this article to be more about hating folks and maintaining traditions from waaaaay back and pretending yall are not related or friends with somebody gay.
1 year ago
1 year ago Link To Comment
Laws are about controlling an individual's behavior. Laws either punish or enable an individual's behavior. Many laws reward indiviual behaviors while punishing those same behaviors by other individuals. (Favoritism, special treatment under the law. etc. See also: Insider trading by government officials, TBTF, too big to prosecute, etc.)

The question you should always ask yourself is this: Does that individual's behavior physically harm me? Does that individual's behavior take money out of my pocket? If that behavior by other people doesn't physically harm you or your property, it's none of your business. If that individual's behavior is stealing money from your pocket, either the individual or the state is stealing from you. (The state is enabling the behavior.) Obviously, there are usually restrictions against theft in any society. However, if the government is stealing money from you in the form of taxes, fees or other restrictions on your private behavior, or else uses such theft to promote or enable restrictions on private behavior, it is a problem with the government, and not with the individual.

In the case of government controlled marriage, The Republican Party and conservatives in general, the party/platform and ideology of freedom and liberty, the party of small govermment, is seeking to control the private behavior of other individuals while also using government to grant themselves exceptions and special treatment under the law. The party of small government and of freedom and liberty is using the government to restrict the freedom and liberty of other individuals, even to the point of punishing individuals for their own harmless and private behaviors. (If the behavior of other individuals does not harm you, it is it harmless to you and it is none of your business. [\What? Heterosexuals don't get STDs or HIV?])

What many on the right promote and advocarte wrt marriage laws are, in form and in reality, Jim Crow laws. They punish other American citizens for their own private behaviors and for behavior that is harmless to other American citizens. Such laws also grant the right (conservative/Republican Party) base special considerations and special priveleges under the law while denying those same privelges and considerations to other American citizens.

Either admit that you want to control the private behavior of others or quit calling yourselves the party of small government and freedom and liverty.

...or...


Act as if you believe what you say you do and stop being hypocrites and liars.
1 year ago
1 year ago Link To Comment
Good story, bro...too bad that its based on three false assertions.

1) That using the power of government to dictate recognition of "Gay" marriage is a private matter.

It is not. If it were, they wouldn't be seeking the power of the Fasces.

2) That homosexual behavior does not harm the heterosexual individual.

It does. Since homosexuals cannot breed children, they are transferring the obligations to pay for Social Security, Disability, and Medicare upon the children of heterosexuals.
This is but one example where this "private behavior" has public consequences.

And

3) Like it or not, the State does have a valid interest in the promotion of heterosexual behaviors...more "Breeders" means more children mean more recruits which mean bigger armies.

Government is instituted for making War first and foremost, and when you get down to the absolute fundamentals, the side with more troops is usually the side that wins.

Now you can stand on a hill under your Libertarian banner and shake your finger at us for whatever perceived failures you think we are exhibiting vis-a-vis your subjective view of ideological purity all you like, but you're fooling no-one.

And neither are you recruiting anyone to stand with you under that banner you're holding.
1 year ago
1 year ago Link To Comment
If ALL the homosexual community wanted from the rest of us WAS to make homosexual marriage an institutiion, I wouldn't care too much, though a homosexual marriage would be LOTS different from a heterosexual one in a multitude of ways. But they want LOTS MORE. They want to FORCE EVERYONE to ACCEPT homosexuality, which is AGAINST Biblical teachings. They want the RIGHT to teach homosexuality to EVERYONE'S kids in the public schools which we ALL pay for,even though they themselves can't have a child within their homosexual marriages, they have to adopt, and they demand the right to do that, the best interest of the CHILD means nothing to them. They want the RIGHT to make it AGAINST THE LAW to call homosexuality a sin, or to say ANYTHING negative about it. And I'm sure that the homosexual community spent LOADS of money paying politicians to pass Obamacare,so that ALL of us HAVE to subsidize the very expensive treatments of THEIR AIDS and HIV cases, which they wouldn't have WITHOUT their "gay lifestyle". If they would, as a group, practice toleration of those with differing moral standards, like they are always screaming at US to do, it'd be a wonderful thing, but they DON'T, preferring to go to court and to their buddies in Congress to MUZZLE us. Their behavior is extremely bigoted and intolerant, even sometimes criminal, against people and organizations and churches that oppose homosexual marriage, so I am opposed to their whole agenda.
1 year ago
1 year ago Link To Comment
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