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Monday, February 1, 2010

WSJ: Why Do We Need the State’s Permission to Get Married Anyway?

In my web pages I make the following arguments:


"Traditional marriage existed before governments existed. Marriage existed before this government existed.  Marriage IS a religious concept.  I read some commentary that encourages people to separate the religious concept from the contractual rights that usually accompany it by law."


In a provocative blog entitled, "Why Do We Need the State's Permission to Get Married Anyway?" Ashby Jones speaks with Stephanie Coontz a professor specializing in the history of marriage.


Jones asked Coontz why government initially got  involved in marriage. She gives several reasons:


- Mormons and polygamy.
- To determine who was entitled to Civil War pensions.
- Moral reasons
- Shift in perceiving marriage to be a "right" rather than a "privilege."
- Business and then government tying benefits to marriage status.


He then asks Coontz whether government should be involved in marriage. She says, "Yes" and gives essentially two rationales.


- To ensure commitments are carried out.
- To protect children.


I think she suggests the perfect compromise to the current same-sex marriage dilemma. 


1. Have the state validate relationships. This can be done by requiring "civil unions" of everyone whether they are heterosexual or homosexual relationships. These civil unions, done by the state, would bestow the legal and contractual benefits and rights we normally associate with marriage but it need not be called marriage.


Some countries do this already because religious marriage ceremonies are not recognized by the state effectively requiring two marriage ceremonies.


2. Leave churches to perform marriages. Since "marriage" is a religious concept and existed before governments' existed this important rite would be left entirely up to the discretion of the various denominations. This would protect the prerogative of churches and the time-honored institution of marriage.


3. Leave churches to recognize the validity of marriages. Since the state should only have an interest in the secular legal and contractual benefits of marriage, churches could recognize and perform marriages according to their own belief system.


These changes would preserve the sacred and religious institution of marriage, protect children, provide contractual and legal rights without forcing same-sex marriages on churches. It would grant gays and lesbians the benefits they seek.


I think this is win/win.


However, I need to point out that this is NOT POSSIBLE through litigation or legal challenge in the judicial system. This compromise is ONLY POSSIBLE by seeking legislation through the legislative branches such as Congress and state legislatures.


Legislate. Don't Litigate.

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