Is Marriage the Government's Business?

[charlestudor2005]

This Editorial from Freedom Communications is supposedly the Libertarian's POV on this issue. Are the Libertarians on this board in agreement? [From 8/4 Editorial, Orange County Register]

Chief U.S. District Judge Vaughn Walker in San Francisco ruled Wednesday that Proposition 8, the amendment to California's constitution banning gay marriage that voters passed in 2008, is unconstitutional. His decision used equal-protection grounds as the basis for the decision denouncing Prop. 8 as discrimination against same-sex couples, or preferential treatment to opposite-sex unions.

In the ruling in favor of two same-sex couples, Judge Walker wrote, "The evidence shows Prop. 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples." He went on: "Because California has no interest in discriminating against gay men and lesbians, and because Prop. 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Prop. 8 is unconstitutional."

Molly McKay of Marriage Equality USA, center, reads the decision in the United States District Court proceedings challenging Proposition 8 outside of the Phillip Burton Federal Building in San Francisco, Wednesday, Aug. 4, 2010. A federal judge overturned California's same-sex marriage ban Wednesday in a landmark case that could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America, according to a person close to the case. (AP Photo/Eric Risberg)

Walker's decision likely will be appealed and eventually reach the U.S. Supreme Court. First comes an appeal by Prop. 8 proponents to the 9th U.S. Circuit Court of Appeals.

UC Irvine law school dean Erwin Chemerinsky called the ruling "a historic decision because it is the first time that a federal court has found that the ban on same-sex marriage violates the United States Constitution." Mr. Chemerinsky said the decision has immense implications because "the judge has permanently enjoined Prop. 8, so same-sex marriages will be allowed in California unless the court of appeals stays this ruling."

Opponents of same-sex marriage denounced the court's decision and the seeming departure from protections from traditional marriage, but allowing same-sex couples to share in this right does not denigrate or degrade other marriages. On the contrary, it further protects all couples' rights.

Legal recognition of same-sex marriage does not require those who have a moral objection to homosexuality or homosexual marriage to recognize or approve of it. It does not require ministers who have doctrinal or moral objections to perform or bless such marriages. And it does not require schools to teach that there is "no difference" between man-woman and same-sex marriages.

Guarantees of individual rights are included in constitutions precisely to ensure that such rights cannot be taken away, either by majority vote, legislative enactment or administrative decision.

In our view, the state should have little or no role in defining or regulating marriage. People should be free to call their relationship what they will, and churches should be free to decide whether to bless such relationships. Government ideally would simply recognize contracts between persons and not license marriage.

[Guest042611]

It's just bizarre to me how invested some people are in keeping marriage a heterosexual institution. Who cares? It's not like same-sex marriages will change the status of straight marriages. If you're super against it, then you're obviously one of the people who actually won't be affected whatsoever.

[Guest050715-1]

Originally Posted by Natalie

It's just bizarre to me how invested some people are in keeping marriage a heterosexual institution. Who cares? It's not like same-sex marriages will change the status of straight marriages. If you're super against it, then you're obviously one of the people who actually won't be affected whatsoever.

I don’t think I’ve ever heard a saner, more logical counter point to teh argument against gay marriage ever. I’m so going to use this argument.

[John Bull]

The State shouldn't be involved in any form of marriage. Marriage is a holy sacrament and as such, only the churches may determine who may or who may not be married under their auspices.
The States only interest is to keep records.
If you want to pick a church based on its position, that's your business. Big Brother should keep their nose out of it...and out of our bedrooms too.

[Nina Rae]

I think its funny that the arguments against equal protection for same sex marriage recognition rarely have substance. Yeah, it may be against your values, morals, or what your religion teaches you...but please provide a basis in the law (namely the state or U.S. constitution) for denying such a right based on sexual orientation. I fail to see any rational basis for such a denial. My state never bothered to provide a basis for anything. Instead, we just defined the word "marriage" in such a way that only John and Jane could receive the advantage.

I have recently decided that there IS a way to get everyone on board with this. There are obviously some financial benefits to people who are legally married...but what about the benefit to the whole? All we need is an economist who can definitively show that there's a substantial economic benefit to ending the crusade against same sex marriage. Those who oppose same sex marriages tend to also oppose anything else that isn't shown to be of economic benefit to the powers that be and to them. Too bad I'm terrible with numbers.

[Chevalier]

Originally Posted by charlestudor2005

[From 8/4 Editorial, Orange County Register]Government ideally would simply recognize contracts between persons and not license marriage.

It appears that the quoted argument may actually be going further than saying merely that there should be no discrimination in whom the government (whether federal or state) should treat as, or allow to be, married. It suggests that government also should not discriminate between those who are "married" and those who are not "married" -- in which case it doesn't matter who calls the relationship what.

Thus, instead of statutory rights (inheritance, making medical decisions, married filing jointly tax status, and hundreds of others), there would only be contractual rights. Which in turn would imply not merely a change in the source of some of those rights but also the content.

The government presumably would still enforce inheritance rights and authority to make medical decisions that were based on contracts. Special treatment for married couples there is often only a default that could be eliminated because married couples could simply contract to assign those rights. Other rights, however, would simply disappear. The most obvious example: If the government doesn't recognize any "marriage" there no longer is a married filing jointly tax status. The husband and wife (or husband and husband or wife and wife) would only be allowed to file separately, the same as single people. And in some cases, I'm not sure whether the government would allow contractual rights that do not now exist. For example, would the government allow you to assign a survivorship interest in receiving Social Security benefits? Perhaps not; it would make government finances even worse than they are now.

Although I suspect few people would want to give up any of those "rights" associated with marriage, the viewpoint that "marriage" should be irrelevant to how the government treats you certainly is a legitimate one and I think it is consistent with a libertarian perspective. Also, in my opinion, clearly constitutional. At least, I doubt whether a court would hold that eliminating the privilege of filing a joint tax return or survivorship rights for Social Security payments was a violation of your constitutional rights. (Not that Congress would ever enact such a change.)

Of course, if the government didn't recognize "marriage" at all, not only would gay and lesbian couples have had the right to marry without fighting in the legislature and courts, but they might not have cared about being "married." "My husband" or "my wife" might still mean more (under such a new regime) than "my BFF" . . . but not a lot more. It might be about the same as the difference (in the eyes of some) under today's regime of a couple being married in a religious ceremony versus being married at City Hall. The Church (and some family members) might not recognize that wedding at City Hall, but everyone else does.

-------------------

As a sidenote, I suspect that what some of the opponents of same-sex marriage may feel (although have trouble articulating) is this very libertarian change: that expanding the definition of marriage would begin the process of transforming what they consider a very special institution into merely a choice of a bundle of contractual rights. The relationship could lose some of the meaning that many attach to it. In that fear, society could eventually lose something that arguably is valuable to many people.

Personally, I think that's a possibility although: (a) it's not at all certain it would happen; (b) even if it happened, unlikely until at least another 50 - 200 years, by which time I won't care either way; (c) it's exceptionally difficult to even guess today at the probability and timeline of such a transformation; and (d) something that might be lost a long time from now seems a rather weak argument to justify treating gays and lesbians differently in the meantime.

[Nina Rae]

I respectfully disagree. I think the state does have some involvement. Marriage, as far as the state is concerned, is a contract between two people, and such status provides benefits (with regard to taxation and subsidies) to recognized couples, it can have a bearing on the federal benefits that parents are eligible for based on status and household income, etc. Now I don't have much involvement with mainstream religions, but as I understand it, the involvement of the churches comes in with the ceremony and the recognition by the congregation and deity on which the church is based, no?

Originally Posted by John Bull

The State shouldn't be involved in any form of marriage. Marriage is a holy sacrament and as such, only the churches may determine who may or who may not be married under their auspices.
The States only interest is to keep records.

[Grathic]

Originally Posted by Natalie

It's just bizarre to me how invested some people are in keeping marriage a heterosexual institution. Who cares? It's not like same-sex marriages will change the status of straight marriages. If you're super against it, then you're obviously one of the people who actually won't be affected whatsoever.

Personally, I really couldn't care less who marries who. But just to point out, by your reasoning here, this argument could be used to support marrying a dog or a fish or a bird.

It's just bizarre to me how invested some people are in keeping marriage a same-species institution. Who cares? It's not like inter-species marriages will change the status of human only marriages. If you're super against it, then you're obviously one of the people who actually won't be affected whatsoever.

Please realize I'm playing devils advocate here. Everyone wants limits placed or the institution of marriage ceases to have any meaning at all. The debate is on where the limit is. I think it's wrong to assume that broadening the limits beyond traditional marriage does nothing to devalue it. Any time you expand something you decrease the value of it.

[pjorourke]

Originally Posted by Natalie

It's just bizarre to me how invested some people are in keeping marriage a heterosexual institution. Who cares? It's not like same-sex marriages will change the status of straight marriages. If you're super against it, then you're obviously one of the people who actually won't be affected whatsoever.

Word!

[pjorourke]

Originally Posted by John Bull

The State shouldn't be involved in any form of marriage.

Well the rub is that there is an economic effect of being married -- different tax rates that apply. Of course, this would all be irrelevant if we had a rational flat tax system.

[SneakyCancer]

i have a problem with the school system and the state enforcing gay rules and regulations on my kids. what 2 adults do in the private time is there business but dont dare tell my kids they need to read book about 2 daddys and baby or 2 mommies and a baby. Family came from one way - A dick and a vagina......whether we like it or not. The pussy is wet for a reason....the dick slides in with help. Why buck the system for our perversion?

Country was founded on God and the principals thereof. If we don't stand for something.....well......look at the US now vs. 20 years ago. Folks are suing God....how can this be...? We cannot spank a child, borders are out of control, elected a muslim into office that cannot say Jesus Christ, etc.....

[WTF]

Originally Posted by windowshopper

Country was founded on God and the principals thereof. If we don't stand for something.....well......look at the US now vs. 20 years ago. Folks are suing God....how can this be...? We cannot spank a child, borders are out of control, elected a muslim into office that cannot say Jesus Christ, etc.....

LOL...What part of Texas you from WS, I mighta went to school with ya!

[Guest042611]

Originally Posted by Grathic

Personally, I really couldn't care less who marries who. But just to point out, by your reasoning here, this argument could be used to support marrying a dog or a fish or a bird.

Not really. Though you probably didn't mean it this way, it happens far too often (and sincerely!) that homosexuality is compared to beastiality (or pedophilia) as another "unnatural" sexual act, and by extension, same-sex marriage as a sign of declining morals or the complete dissolution of marriage as a contract between humans. It's quite insulting to compare consenting adults who make an adult decision, where both parties are willing, to any other situation where it's obviously not the case. Many of the arguments against same-sex marriage echo the arguments against interracial marriage ("it's weird and makes us uncomfortable"). I'm quite sure the union of consenting adults, be they of any race or gender, will not be the precursor to people marrying their pets.

I know you said you're just being devil's advocate, but seriously, I think there is no solid reason not to allow same-sex marriages. With most other issues I can at least understand the side that I might not agree with. But not this one.

[John Bull]

Originally Posted by pjorourke

Well the rub is that there is an economic effect of being married -- different tax rates that apply. Of course, this would all be irrelevant if we had a rational flat tax system.

Word to the flat tax with NO deductions.

As you say, the govt has done so much social engineering based on the marriage contract that they think they own the institution. Eliminate all tax breaks, all regulations, and all deductions based on the number of children or for the raising or educating of said children. Then, they can keep records of who or how many enter into a contract to live together or a church joining based on the churches rules.

There is no right to marriage in the U.S. Constitution. It's possible that one or more of the state constitutions may speak to the institution in which case, if they are in favor of some variation, that state's citizens would have a right.

[DFW5Traveler]

I believe that the 10th amendment applies, if the majority of people in CA don't want it, who the hell is the judge to reverse the will of the people. The fed should have nothing at all to do with it, it's a states rights issue. That's my opinion and I'm sticking to it. I find it amusing that a lot of the gay couples who ran off and got hitched soon after found themselves in divorce court.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And yes, FLAT TAX. Progressive taxing is theft. Madoff went to jail for what the govt is doing. And what does the govt do, give themselves a pay raise.