Family Issues

Time for a Divorce

Why government should get out of the marriage business


In the 1500s, a pestering theologian instituted something called the Marriage Ordinance in Geneva, which made "state registration and church consecration" a dual requirement of matrimony.

We have yet to get over this mistake. But isn't it about time we freed marriage from the state?

Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman—or no one at all—and enter into contractual agreements, call their blissful union whatever they felt it should be called, and go about the business of their lives.

I certainly don't believe that gay marriage will trigger societal instability or undermine traditional marriage—we already have that covered—but mostly I believe your private relationships are none of my business. And without any government role in the institution, it wouldn't be the business of the 9th U.S. Circuit Court of Appeals, either.

As the debate stands now, we have two activist groups trying to force their own ethical construction of marriage on the rest of us. And to enforce it, they have been using the power of the state—one via majority rule and the other using the judiciary (subject to change with the vagaries of public opinion).

If marriage were freed from the state, folks at The New York Times editorial board could avoid having to make claims that gay "marriage is a constitutional right." (Apparently, anything can be a constitutional right at The Gray Lady, as long as it's not mentioned in the Second, Fifth or 10th amendments.)

Even new Supreme Court Justice Elena Kagan recently wrote that "there is no federal constitutional right to same-sex marriage." It might be fair and it might be the decent thing to do, but a constitutional "right"?

If marriage were a private concern, U.S. District Chief Judge Vaughn Walker would not have ruled that California's Proposition 8 violated the Constitution's guarantees of equal protection and due process, because Proposition 8 would not have existed.

Walker never would have to sit in judgment of Americans and claim that "moral disapproval alone" was behind this plot to define marriage as a union between one man and one woman.

Moral disapproval alone?

As best as I can tell, support for gay marriage is tepid. A recent CBS poll shows that 42 percent of Americans support marriage rights for gays and lesbians, though no state has been able to pass a referendum to legalize same-sex marriage.

Does that mean that approximately half of voters—and all 7 million Californians who voted for Prop 8—have no logical or legal reason for believing that marriage should be between a man and a woman other than bigotry?

Is President Barack Obama, who David Axelrod says opposes same-sex marriage (also subject to change with the vagaries of public opinion, no doubt), a homophobe?

In my world, the answer is: Who cares? Is there any other personal relationship that is defined by government? Other than in legal terms, of course, this one isn't, either.

Yet we have decided that a majority on the Supreme Court or, perhaps, a majority of the voters in your state or, even worse, a majority of the legislators in your state have the power to define what is often the most intimate bond of your life.

In our Utopian vision, no group is empowered to dictate what marriage should mean to another. And one of the great perks would be the end of this debate.

David Harsanyi is a columnist at The Denver Post and the author of Nanny State. Visit his website at


NEXT: Ron Hart on Obama's Jes' Plain Folks Shtick

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  1. “Apparently, anything can be a constitutional right at The Gray Lady, as long as it’s not mentioned in the Second, Fifth or 10th amendments.”

    Sad but true. Good morning reason.

      1. Finnally, I got here before you 😛

        Have a great day!

        1. LULZ, your nimble fingers and quick brain beat my French manicure.

          1. As long as your lookin good. We wouldn’t want you to break a nail.

            1. French manicure was the greatest thing ever invented for modern office work.

              1. So a woman is only worth as much as her nails?

                1. That’s not the parts I’m interested in…

                2. So a woman is only worth as much as her nails?

                  LOL, no. Growing them out only to have them broken against a keyboard is annoying, to say the least. Long nails don’t work with iPhones well either.

                  1. I guess glamour just wasn’t meant for the modern world. Hopefully the First Lady has someone doing those things for her.

                    1. Pretty sure she has legions of interns for that. Maybe hosts of HHS workers.

      2. +1

        Thank you for that fantastic contribution to the discussion.

    1. So have you heard of the 9th?

  2. Why government should get out of the marriage business

    Didn’t the combination of the Prop. 8 decision (states can’t control it) and another decision not long ago saying the feds can’t control it, take the government out of it already?

  3. A prior commenter once brought up the concept of Spousal Privilege, and how that would be left hanging in a legal state with no defined marriage. Too bad Harsanyi didn’t explore that point.

    1. Agreed. I think that the underlying assumption is, however, that civil unions will be brought up to equal legal footing as marriages, upon which the word “marriage” will be replaced with the words “civil union” as far as the state is concerned.

      1. isn’t it about time we freed marriage from the state?

        But if “marriage” is freed from official state sanction, who will stop freelancers from calling it a “union,” thus depriving same-sex couples of the much-desired imprimatur of “marriage”?

        1. But if “marriage” is freed from official state sanction, who will stop freelancers from calling it a “union,” thus depriving same-sex couples of the much-desired imprimatur of “marriage”?

          Why is that relevant?

          1. Because “marriage” is very important to same-sex couples. “Civil Union” just doesn’t have the same cachet. Far from being a matter of semantics, many gay-rights groups want the word “marriage” written into law. In doing so they impede progress and piss off a lot of traditionalists in the bargain.

            1. Because “marriage” is very important to same-sex couples. “Civil Union” just doesn’t have the same cachet. Far from being a matter of semantics, many gay-rights groups want the word “marriage” written into law. In doing so they impede progress and piss off a lot of traditionalists in the bargain.

              Indeed, the historical and traditional definition of marriage is a very emotional issue, by virtue of its history and tradition.

            2. We’re talking about a couple words written on a piece of legislation, or some silly ass certificate from the gov. Remove the religious connotation from the government level and be done with it.

            3. because the issue of SSM isn’t really about equality, it is about acceptance. people want the government to create a right to SSM and force society to accept homosexuality. this wasn’t the case originally, SSM used to be about equality and civil unions used to be enough, but now that’s long past.

      2. What about polygamists? Are multiple spouses covered?

        1. Evidently, the United States has an interest only in protecting same-sex couples from the tyranny of majority-driven bigotry. More than two and you’re on your own. Perverts!

          1. (I wonder if same-sex couples themselves would approve of removing the ban on polygamy? Or would they, in turn, be bigoted against that other persecuted minority?)

            1. Well, lefties hate Mormons, so yes.

              1. *Argh. I mean the lefty ones would. Which are probably the majority of same-sex couples.

            2. (I wonder if same-sex couples themselves would approve of removing the ban on polygamy? Or would they, in turn, be bigoted against that other persecuted minority?)

              I wonder why they fail to see that the rationale that the Supreme Court used in upholding anti-polygamy laws would provide a rationale for upholding anti-same-sex marriage laws against a constitutional challenge.

        2. I can’t wait to see how the Social Security administration tackles that one.

          1. I wonder how that would work in a line marriage.

        3. What about polygamists? Are multiple spouses covered?

          They have to form a corporation first.

          1. Won’t a simple partnership do?

      3. This would lead to the problem of separating the state from civil unions.

        Basically there are a number of issues:
        1) We shouldn’t need a license, ceremony, or fee to be married, and states shouldn’t discriminate in who can be married.
        2) We need states to recognize marriage for common-law purposes of inheritance, spousal privilege, and currently immigration rights. Under true open immigration the latter wouldn’t matter.
        3) Ideally marriage should be tax neutral, but in some cases it incurs a benefit and in some cases a penalty.

        1. “We need states to recognize marriage for common-law purposes of inheritance, spousal privilege, …”

          Not necessarily. These can be defined when you enter into a marriage contract.

          1. “”These can be defined when you enter into a marriage contract.””

            Who’s going to enforce that contract, and whom would you go to if there is a violation of that contract?

            1. It’s no different than it is now. Just change a few damn religious words. Poof! The situation automatically gets better. We work from there.

              1. If it’s no different than it is now, how is the state being removed from the process. States help enforce contracts. Are husbands and wifes going to duel for child custody?

                1. The state still enforces the process, but they enforce the wishes of the parties involved rather than giving things away to people Willy-nilly.

        2. You shouldn’t need a license to keep a dog either, but whether you have a license for it or not has no bearing on whether a given animal is a cat or a dog.

          1. Cooking one should not require a license either.

      4. Agreed. The real fight here is that Gay couples who are in long term committed relationships can’t get the legal protections that have evolved around marriage.

        If we replaced the state’s interest in where the couple gets “married” with a record of two sober minded adults of legal age to enter a contract signing the contract in front of the witness (clerk). The state would have its need met in terms of property ownership/inheritance, and the couple is still free to get married where ever they decide later. This keeps marriage between adults, and conditions are currently set for all kinds of contracts (try getting a law license without taking the Bar exam.)

        1. Agreed. The real fight here is that Gay couples who are in long term committed relationships can’t get the legal protections that have evolved around marriage.

          I know of no law preventing them from forming a business partnership. Do you?

          1. That is what many of them do now, it just costs a lot more than a marriage license. In Nebraska, a marriage license is $25 and the legal fees to do this completely is about $1500. So not even close.

            The point is that fair is fair. If marriage was a religious rite only, or an agreement between a given man and woman, then no argument for the gays. Marriage is now a property and inheritance issue with a lot of benefits attached. Thus not fair to say to couple 1 that they can get the same benefits as couple 2, but they have to pay 5 x as much for them.

            The real issue, and the one that our society has a bigger stake in is the whole issue of civil contracts, marriage licenses, wills, power of attorney for health decisions, and living wills. So expensive that most people don’t have one that is either existant or current. We need more people to have this so we can make more efficient use of health resources.

            If a person comes in near death from a car accident, it often takes 2-3 days to sort out who can decide about termination of life support and organ donation. Add the time it takes for that person to gain the data and perspective to make that decision without regret or doubt, and you have added 3-4 days onto an ICU stay that could have lasted only 1-2 days. Multiply the $15K you just spent by the 500 times it is going on elsewhere in the country and then realize that this much is wasted weekly, and you get some serious numbers just off car accidents. Add in crime, motorcycles, heart attacks, strokes, and random accidents, and you are really stacking up money. Get a system where anyone of age to sign a contract can do so and get these set up with a quick trip to the civil contracts office, and you save money as well as all the legal sturm and drang.

            1. Or just have a living will wherein you designate who is to be your health care decision maker in the event you become incapacitated.

    2. That’s the point I have been harping on for a year or so.

  4. But it’s the Fabric of Society?!

    1. Do me a favor and take that to the cleaners, would you? Thanks.

    2. No, that’s PVC. Society is in bondage… or into bondage, I can’t remember.

  5. Ever read the 9th? The Constitution is not the cap on rights we have.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    1. Sorry, it’s covered up by an inkblot. Along with all the other stuff I don’t approve of.

    2. Yeah, the problem with the 9th is figuring out which “other” rights are protected against government infringement.

      Lots and lots of law review ink has been spilled on that question.

    3. Ever read the 9th? The Constitution is not the cap on rights we have.

      And in Washington v. Glucksberg , the Supreme Court reiterated the rule that the rights that are fundamental are those deeply rooted in our nation’s history and tradition, and is implicit in the concept of ordered liberty.

      That effectively defines the Ninth Amendment.

      1. Which would include the right to marry.

        The interesting legal question is, can the government properly discriminate on that right based on gender.

        1. The interesting legal question is, can the government properly discriminate on that right based on gender.

          Given that the government was allowed to deny suffrage based on gender ( Minor v. Happersett ), require people to register for the draft based on gender ( Rostker v. Goldberg ) and punish people for statutory rape based on gender ( Michael M. v. Superior Court ), yes .

          1. From the CA Constitution

            Section 7
            “(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”

            I guess it depends on what you think that means. It could be argued gays are a class, and that if gays can’t marry, neither can anyone else.

            None the less, it will be interesting to see what SCOTUS says.

            1. Section 7
              “(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”

              Which has nothing to do with the 14th Amendment.

              I guess it depends on what you think that means. It could be argued gays are a class, and that if gays can’t marry, neither can anyone else.

              Could it be argued that gays are a class while polygamists are not a class?

              1. Polygamists are more comparable to religious minorities, not different sexualities. Wrap your mind around the fact that gays are biologically different from straights and you won’t need to keep up this increasingly brittle defense of unequal rights.

          2. I wasn’t aware of that Michael M. case. Jesus christ, that’s some infuriating shit.

            1. I wasn’t aware of that Michael M. case. Jesus christ, that’s some infuriating shit.

              What was infuriating about it?

  6. Why government should get out of the marriage business

    Next time Harsanyi should write a column more grounded in reality: “Why Singing Kumbaya Will Give Peace a Chance.”

    1. Or perhaps an article titles, “How Cutting Off Your Nose to Spite Your Face Works!”

  7. Right on, Mr. Harsanyi. Well said.

  8. Harsanyi has it all wrong: the future of marriage is everyone married to the Government.

    1. Gives a whole new meaning to “civil affairs”.

      1. and spousal rape

    2. ..”the future of marriage is everyone married to the Government.”

      It will be a shotgun wedding with us being on the wrong end of the shotgun.

  9. I’d love to get the government out of marriage. That said,


    1. J you are totally harshing my mellow! This article states pretty much what my postion is on the subject.

  10. Kinda makes sense when you think about it.


    1. Lou? I want a divorce, Jodi.


  11. Hey now, I don’t not approve of same-sex marriage. I approve of people being able to approve or disapprove, or not approve if they don’t. So don’t put words in my mouth. But have you seen the economy? Lookin’ real good!

    1. You know that he has to take this position or he’ll piss off the blacks and working class Dems – who are both socially conservative.

      Same goes for moderate-Republicans (if there are any left). They have to talk about how much they love Jesus so as not to piss off the bible thumpers in the R party.

      Libertarians, on the other hand, say what they believe…but for this reason don’t get elected.

  12. The ramifications of taking marriage out of the hand of the state would be pretty wide spread and profound. Mind you this is something that I would fully support. There is a significant body of federal, state and local law dedicated to marriage and divorce.

  13. The government will never divorce itself from marriage. While the state loves to trample rights, it loathes to do away with an entitlement. (You see where I’m going with this…)

    Government recognition of marriage isn’t a right; it’s an entitlement.

    1. Government recognition of marriage involves both rights and entitlements.

  14. How can those who disapprove of same sex marriage be considered homophobic when it allows for two straights to get married?

  15. Psst… maybe now is not the best time to be making this argument. If married straights want to give up all their rights and benefits so that gay couples can be equal under the law, you can certainly try to sell them on it. Good luck with that. But it seems odd to make this case just as we’re in the process of gaining equal rights under the current system, especially since it’s a nonsense fantasy.

    1. When is the right time, Tony? Isn’t injustice anywhere a threat to justice everywhere?

      1. When it doesn’t appear that the argument has suddenly manifested itself just in time to poke gays in the eye for daring to demand equal rights?

        1. Actually, Tony, myself and others have been making this argument since VT and HI began the debate on same-sex marriage.

          1. Right–the argument is made in response to the same-sex marriage debate. But not in response to the decades upon decades that came before when heteros were practicing liberty-killing government marriage. See what I’m getting at?

            1. I’ve thought government shouldn’t be involved in marriage since I was 16 or 17–in the year 2000. I wasn’t around to fight against the idea of extra benefits being conferred on married couples when it was first dreamed up. But I can say that it disgusted me from the first time two other students in my school decided to set up a marriage because they’d found a way that it would allow them to get into college easier–and, of course, they both agreed that once they graduated they’d divorce.

              I don’t blame them, though. I blame the system, which shouldn’t have any interest in whether people are married or any incentive that they should be. As long as any financial, legal, or other benefits for being married exist, the government is discriminating against single people.

            2. Gay marriage has never been a big issue for Libertarians because, all things considered, as a single issue, it’s not a big infraction of the equal protection premise. Two gay people could enjoy all the benefits of a committed relationship without being formally married, the definition of which is only really important to the IRS.

              Anti-prostitution laws are far worse, because innocent people are actually going to jail over it, so its a more important cause for Libertarians. That’s why we’re more vocal about it.

              And you’re wrong anyway. Romoving government from marriage has always been a libertarian issue. It’s just that it was couched in the much broader “keep the gov’t out of our bedrooms” context. The position on the specific issues, be it marriage, prostitution, polygamy, whatever has never changed.

              1. I will give you that there will be social conservatives who end up adopting the libertarian position as a response to the movement toward legalized gay marriage. But, from my experience, I don’t know a single libertarian who doesn’t support gay marriage as a concession to removing government from the institution completely. If the government is going to poke it’s nose where it doesn’t belong, then it needs to do so equally. But we’re not going to be as passionate as Liberals are, because for us, it’s still a concession.

                1. KPres,

                  I appreciate and understand that. But this is what I see as libertarianism’s fundamental problem: it’s not pragmatic in any way. It doesn’t deal with reality, it just sits around and ruminates on its pure first principles. Thus your role in the political process is just to constantly complain that everything isn’t perfect. What’s the point?

                  1. Because look where the arternative has gotten us? Maybe if principals were more important than simply getting elected by promising people stuff, we wouldn’t have this problem.

                    1. Liberals have gotten us an advanced civilization. Now if only an asteroid could wipe out all the conservatives standing in the way.

                    2. “Liberals have gotten us an advanced civilization. Now if only an asteroid could wipe out all the conservatives standing in the way.”

                      My, how advanced.

                    3. “Liberals have gotten us an advanced civilization”

                      Which liberals would those be again?

                    4. “Liberals have gotten us an advanced civilization. Now if only an asteroid could wipe out all the conservatives standing in the way.”

                      Tut tut, Tony. Just when I was beginning to like you for your practicality, you have to show me you’re politically bigoted… Not all conservatives are standing in the way.

                    5. “Because look where the arternative has gotten us? Maybe if principals were more important than simply getting elected by promising people stuff, we wouldn’t have this problem.”

                      I’m with Tony on this. Political theory that looks good on paper and its ability to be applied are not the same thing. If your theory cannot be applied practically, then it’s worthless, regardless of purity of principles. For evidence, see “communism”.

                  2. Uh, to make things more perfect? Or, at least, to make sure that the imperfect aspects are not forced on people under threat of violent coercion (i.e. government) without any recourse (since government is supposed to be the agency of recourse)?

                    This is what I see as the fundamental problem with non-libertarians — they repeatedly compromise principals without ever realizing that it’s the compromises that cause the problems.

            3. Not really… no one is omnipotent and no one is perfect. Even if it is true that no such arguments were made by libertarians previously (which I suspect is false), so what? Even the best among us sometimes have issues figuring out right from wrong… if not, humanity would have far fewer problems.

              1. Not sure why these all popped up here instead of under the posts I replied to.

        2. Shorter Tony: Waaaaaaaaaaaaaaaaaaaah.

        3. Ok, so everyone should continue to be shit on until no one can make a (weak) argument that someone is being disingenuous. How fucking stupid.

  16. Having grown up in Mexico, I view things differently. In Mexico there is what is called a “civil marriage,” which most of the population views as the equivalent of a marriage license, as it is a legal prerequisite for a church marriage, which is actually optional.

    We could resolve the entire matter by having the state register civil unions and letting each church set its own standards for those unions it wishes to sanctify. Thus, if the Catholic church does not to wish to sanctify same-sex unions, it ought not to be compelled to do so but same-sex partners could enjoy the legal benefits of a civil union and, if they felt the need for a “higher” sanction, could seek another church that would provide it.

    1. That’s actually exactly what we have now other than most people call “civil marriage” a “marriage license” and most states won’t let gay people have them.

      We also have DOMA, which while blatantly unconstitutional in regard to the privileges and immunities clause of the 14th Amendment, has yet to be challenged in court.

    2. I fail to see how it’s any different in the US from a legal standpoint. A marriage license is issued by a government. A marriage itself is performed by a priest, or a judge, or a justice of piece. I’m an atheist, I don’t care about funny rituals that the Catholic church performs. There’s no way I would be interested in doing some kind of marriage ritual in a church. Many people wrongly believe that marriage has something to do with a church. It doesn’t. Millions of straight atheists marry without a church blessing. Religious people should get a message that it’s not all about them

      1. Many people wrongly believe that marriage has something to do with a church.

        Marriage is a cultural institution, but its very much a part of all human societies and cultures, which should indicate it’s just a bit more than merely someone’s opinion. Religions only reinforce pre-existing cultural values, they don’t create them for the most part.

      2. a justice of piece

        1. You said “piece”.

    3. I cannot agree more emphatically.

  17. I might be able to support this, although I think it will probably never happen.

    If for no other reason then I think many of the supporters of gay marriage WANT government recongition. They want everyone to think it’s morally ok.

    But for many peopel it won’t ever be.

    1. Not just government recognition, but all the $$$ from various levels of government which come from being “married”. There are all sorts of lists floating around of the supposed hundreds of monetary benefits which gay couples are being deprived of.

      Unfortunately, Libertarian groups – especially the gay groups such as Outright – have gotten on the bandwagon also, using the “As long as straights can get married and reap the benefits, we should be able to as well” argument. This is so un-libertarian it makes my head spin, along the lines of “Mom!! He got a bigger piece of pie than I did!!” The answer is *not* to demand more benefits from the government because others are getting more than you – but that’s asking too much from today’s supposed Libertarians.

  18. I would be fine with replacing government recognition of “marriage” with government recognition of family units, open to any number of people in any configuration. That does NOT imply any tax breaks would be granted to said family units just because they exist.

    This would provide for many of the utilities of a civil marriage, such as medical power of attorney, inheritance, etc. I’m sure people would cry about the definition of “family” but I don’t actually care what it would be called.

  19. They won’t be married, they’ll be Butt Buddies.

    They won’t be husband and wife, they’ll be Butt Buddies.

    1. It is technically possible for a male and female to be butt buddies.

      1. It is even technically possible for two females to be “butt buddies”…strap on FTW

  20. It used to be that conservatives regarded separation of marriage and state as an attack on marriage and the “traditional family.”

    You can bet that as soon as gay marriage becomes the norm (i.e., pretty soon), liberals will regard the libertarian (i.e., separationist) position as homophobic.

    This is how libertarians routinely get screwed. We go from dangerous radicals to backward reactionaries in the span of a few years while consistently holding to exactly the same position.

    For example: Late 19th century libertarians were dangerous free-market radicals. Early 20th century libertarians were dangerous free-market reactionaries.

    In the 1950s, libertarians were race traitors would would permit miscegenation. Today, Rand Paul is a racist!!!!

    The days when libertarians come off as progressive on gay rights issues are coming to an end.

    1. Consistency isn’t all it’s cracked up to be. I wouldn’t expect an average person in the 1950s to have the attitude toward gay marriage that I’d expect the average person to have in 2010. And maintaining a pure philosophy at the expense of real people’s liberties or equal rights in the here-and-now is just pointless.

      1. How does favoring separation of marriage and state hurt anyone’s rights? In response to an earlier post, by the time I was old enough to understand that there was a debate (and therefore take the position of separation of marriage and state), there was already a pro-gay-marriage movement. Now, I don’t think recent events like overturning Prop 8 are a bad thing- on the contrary, homosexuals deserve equal treatment, but it still discriminates against the many other sexual minorities, and, in terms of taxes, discriminates against singles. I think the ideal situation would be marriages defined by contract between consenting adults. How is that possibly taking away anyone’s rights?!

        1. He was speaking generally about libertarian positions, and he’s spot on. Sticking to one thing regardless of context always ends up with silly results. See: Rand Paul

          1. Late 19th century libertarians

            This seems to require that you project backwards in an inappropriate way. While there were people in the 19th century that you might like to claim as libertarians, they would not describe themselves as such as the term is very much more recent than that…at least in the sense you are using it. To be accurate, you would need to stick to examples from…let’s say no earlier than the 1920’s…and even that is a “liberal” benchmark…I would put it sometime in the 1940’s before the term meant what you seem to mean here.

            1. To clarify, the term itself is much older…but it was not used in the sense you are using it. That sense comes much later…sometime in the 20th century. It developed its current meaning solidly by the 1960’s or so.

              1. Life is too short to be that pedantic.

            2. People with libertarian-like beliefs in the 19th century would probably refer to themselves as liberals, which is what we really mean by libertarian. True liberalism has been consistent for that long.

          2. yes, because internal consistency in applying logic is soooo 19th century.

  21. Is there any other personal relationship that is defined by government?


  22. Since when does seeking freedom equate to ” trying to force their own ethical construction”. Was Dred Scott trying to force his ethical construct on us. Most people thought he should not be declared free. Very shitty and shallow article. Of all the issues to focus on he chooses the lame rhetorical one. As for polygamy, I can’t begin to understand the legal issues involved with property, custody, inheritance, etc. but I will say that if a mutually agreeable contract can be made, then the State should do everything it can to recognize and uphold it.

    1. The issue isn’t about freedom. Generally speaking, there are no laws preventing anyone from getting married in whatever way they choose. As you indicate yourself, the issue is whether or not the state recognizes your marriage, and whether or not you have access to all of the _privileges_ associated with that state recognition.

      If to you your marriage is only valid if the state recognizes it (and thus you’re not free to get married unless the state recognizes it), then you’re trapping yourself in your own hell.

      The issue is that the state _only_ recognizes certain favored definitions of marriage, thus providing the attendant privileges only to that favored few.

      Expanding the definition of marriage to include one more acceptable definition isn’t an enhancement to freedom — it’s a doubling-down on the initial mistake. It also is very much an effort to force heterosexuals to accept homosexual marriage, in that it (as one example among many) requires heterosexuals to subsidize homosexuality via the tax breaks afforded “married” couples. Or, vice-verse, homosexuals subsidize heterosexuals.

      The solution is to eliminate government recognition of marriage — and the attendant privileges — so that no one is forced to subsidize something they disagree with, and so that no one is the unfair and exclusive recipient of state benefits.

      Finally, regarding your last comment, you’re right there — one of the primary, fundamental purposes of government is to make sure mutually agreed-upon contracts are honored. But that can be done without any specific definition or recognition of marriage… a contract is a contract.

  23. Was Dred Scott trying to force his ethical construct on us. Most people thought he should not be declared free.

    He argued that he was free by being in a U.S. territory.

    Then Supreme Court looked at the Constitution and statute and found otherwise.

    And before you claim that the Court failed to protect his rights, it should be noted that the Constitution and statute did not protect his rights at the time. There was no legal basis for protecting his rights, and none would come for nine years.

  24. Sure, sounds great … get the gov’ment outta marriage.

    How’s that gonna happen? Are libertarians out there campaigning state-by-state for constitutional amendments that would accomplish this? Was this the tack libertarians took in reaction to legislative and judicial maneuvers in the debate over miscegenation laws? How’d that work out?

    This is all well & good (if not particularly new), but it seems beside the point to me, without some kind of concerted effort to make it happen. Cultural conservatives are pushing hard to prohibit SSM because they see it as a threat to traditional marriage; gays and lesbians are fighting for SSM because they see it as a question of equality. Who is going to fight for getting government out of marriage? Without any kind of roadmap to building a committed constituency, the proposal is toothless.

    1. Ultimately the only thing that matters is how we all vote. There is no “fight” necessary, nor is any “roadmap” necessary.

      The “committed constituency” comes from the throngs of voters who carry the idea with them into the voting booth. Thus, Mr. Harsanyi throws the idea out there to plant the seed and for discussion.

      Are you saying you refuse to vote in favor of candidates and legislation getting government out of marriage until there is some threshold number of supporters?

      Silly criticism.

      1. I’m saying there are almost no candidates out there working on, or even endorsing, the idea of getting government out of marriage. There are no efforts to draft citizens initiatives that would accomplish that. Voters can carry the idea with them to voting booth if they want, but they won’t be able to do anything with it when they get there.

        Mr. Harsanyi knows this, you know this. Instead, he proposes a stillborn notion that has never had traction and won’t, without some clearer idea of how to convince people that it is a good idea.

        I’m saying, instead of repeatedly putting this forth, how about offering some idea of how it might be accomplished.

  25. I agree with Mr Harsanyi; atheists may not like hearing this, but marriage IS at its roots inherently religious. No getting around that. The fact atheists have “civil unions” doesnt change what marriage is at its heart. So, for GOVT to marry ANYONE, gay or straight, violates the first amendment as govt is NOT supposed to endorse religion. What SHOULD happen is what Mr Harsanyi says: GOVT grants the civil union- the legal contract that establishes legal protections- to ALL. Gay, straight, polyamourous…any arrangement of the truly consenting. Then, those who wish the sacrament of marriage can have one at the church, mosque, temple, or pagan/ witchcraft grove of their choice. GOVT has no right to deny a legal contract to anyone; by denying marriage to gays and polyamourous folks that is currently what they are doing.

    1. Atheists in this country have marriages not “civil unions.” While you think otherwise any two opposite-sex persons can legally marry without ever visiting a church. No one gives a shit if the Catholic church doesn’t think that two divorced persons can marry. Catholics are free to think whatever they want.

      Let me repeat myself, religious folks, it’s not all about you.

    2. Polyamorous is a stupid word. It mixes greek (poly) with latin (amorous).

      Either multiamorous or polyerotic (maybe polystorgic). Pick one.

      1. … while the homophobe takes the subway to his automobile.

    3. atheists may not like hearing this, but marriage IS at its roots inherently religious. No getting around that.

      Actually it’s very easy to get around that, simply by showing that marriage predated religion — which it did. Marriage predated the state too, and even predated humanity. Unless the evidence from similar species’s behaviors is distortive, it shows that marriage was understood millions of years ago, before modern humans, before language, before there could ever have been anything thought of as religion.

      1. Technically you are claiming that monogamy predates humanity.

        While there are other species that have life-time unions, it is anthropomorphic to equate it with the human concept of marriage.

        Also, in general marriage has meant different things to different cultures over the course of human history.

        …And for those with a Judeo-Christian bent…find me the passages in the Traditional bible that not only define a “marriage ceremony”, but also gives a clear definition of “marriage”.

        They are not there.

      2. You’re drawing an equivalence which isn’t exactly accurate. True that family units of various kinds have existed long before the term “marriage,” but that doesn’t make those arrangements “marriages,” if “marriage” is defined as having a judeo-christian religious connotation.

        Now some might say that the word “marriage” really doesn’t have any such connotation… but that’s an issue of cultural perspective. If I’m catholic and I think “marriage” is a religious union between a man woman, then that’s what it is.

        This is the issue with using government to define aspects of culture, as we have done — mistakenly — for hundreds or thousands of years. Particularly in a country as diverse as the US, using government to define any cultural institution will inevitably result in conflicts. It wasn’t right for the government ever to recognize marriage, and it isn’t right now that the definition is being expanded. It violates the rights of individuals to define themselves.

        Indeed, (slipping off topic slightly) it’s consistently amazing to me that liberals promote themselves as the champions of inclusion and diversity, and yet they repeatedly promote legislative agendas that reduce diversity and increase homogeneity.

        Letting everyone define what “marriage” is to them — that’s true diversity, true inclusion, true heterogeneity.

  26. The state will always be involved in some way in marriage. It need not be through licensing, but it will at at least be through interpretation of contracts and allocation of property and custody in the event of death or abandonment and through the determination of who qualifies as a spouse for the purpose of the allocation of various benefits (such as pensions, social security, health insurance, income tax). Licensing or registering marriages is just a convenient, efficient, standardized way to deal with all of that. Unless we get rid of all the benefits of marriage, as well as all of the problems of marriage (i.e. death/divorce), that must be resolved by law, licensing and/or registration of marriage is not likely to go away. It’s just more streamlined that way.

    As for whether eliminating state licensing of marriage would end the debate over gay marriage?Homosexuals can ALREADY do everywhere in the country what is being suggested in this article – They can ALREADY draw up any private contract between each other they want ? make any private promises of commitment they want ? call their relationship whatever they want. That’s not what they WANT. They want, quite specifically, a state marriage LICENSE. To license means to certify, authorize, accredit. They want their private relationships to be PUBLICLY authorized, PUBLICLY accredited, and, by first getting public approval (i.e. state sanction), they hope eventually to gain wider individual moral approval. Thus, suggesting the state stop giving out marriage licenses would not “end the debate.” Because the debate isn’t really over whether or not homosexual couples should have marriage licenses. It’s over whether or not their relationships should be approved of by society as having equal moral standing with heterosexual relationships. It’s about whether or not people who disapprove of homosexual relationships should be regarded as immoral for the very act of disapproving. The marriage license is just one of many fields where that debate is being waged.

    1. [audience_clapping.jpg]

    2. This is a bullshit argument. Private contracts between gay couples have been consistently violated. Powers of attorney ignored, property seized for the government instead of respecting the will, etc.

      Gays seek marriage licenses because that’s the only way to stop this “whoops, you didn’t dot the i on this contract so it all goes to the government now! bwahahaha.. die alone in a hospital now, fag..” nonsense.

      1. “This is a bullshit argument. Private contracts between gay couples have been consistently violated. Powers of attorney ignored, property seized for the government instead of respecting the will, etc.

        Gays seek marriage licenses because that’s the only way to stop this “whoops, you didn’t dot the i on this contract so it all goes to the government now! bwahahaha.. die alone in a hospital now, fag..” nonsense.”

        that might be true to an extend, but I agree the larger issue is the moral one.

        1. So achieve a state of calm and meditate on the moral issues. Our gov’t isn’t supposed to legislate on morality, and especially not on religious views, which is what you really mean.

          1. I think it’s a slippery slope to say our government isn’t supposed to legislate on morality- I think it’s more nuanced than that.

            Many of our laws are based on moral principles. The issue is, imo, that our morality as a people (and species) has evolved. At one point, slavery wasn’t considered immoral or illegal, but we don’t see the issue in that light anymore- it IS immoral and illegal by today’s standards. Whereas some people see homosexuality as immoral, more and more people are coming to realize it’s immoral to discriminate against people who are different.

            “Morality” isn’t exclusive to religion. It’s possible to reach moral positions based on rationality and reason- that is to say, philosophy. Philosophy based on reason and not religion can come to moral decisions identical to those dictated by religion, and shouldn’t be disregarded simply because religion is in agreement.

    3. The relevant meaning of “license” (verb) is “permit”. But you can permit something all you want, that doesn’t make it possible to begin with. It’s the difference between “may” and “can”.

  27. Trouble is, marriage isn’t just a “personal relationship.” As long as marriage involves property, wealth, and the welfare of children, Government will be in the “marriage business.” It would be more practical if the law defined “marriage” the same way it defined “Corporation” or “LLC.” From the Government’s point of view, they’re mostly identical: relationships between people involving money and property which the Government wants to get its mitts on. The only thing a Corporation or LLC lacks is a kid.

    Religion and culture shouldn’t enter into it. If the Pope holds an elaborate church ceremony in which he declares himself President and CEO of Wells Fargo in the eyes of God, the Government won’t care. Similarly, if a priest declares that me and my gal are married, the Government *shouldn’t* care. We can run around “being married” all we want, introducing ourselves as Mr. and Mrs. X, but as far as the Government is concerned, we’re still two separate people and not a single legal “entity.” To be married for Government purposes, we have to go through the Government’s own ritual legitimizing our union. And that ritual should be race-, gender-, and religion-blind.

    And the church(es)? They can do whatever they please. Don’t want to “marry” gay people? That’s between them and the gay people. Government shouldn’t care, partly because of the First Amendment but mostly because getting mixed up in the dispute would be a useless pain in the butt.

    If exclusively monogamous heterosexual relationships are such an important part of our culture (or even our biology), then it shouldn’t take Government intervention to “protect” them. It would be like trying to protect the Law of Gravity from people in hot-air balloons. Just because a norm is violated doesn’t mean it’s in danger.

    1. I see your point, but what’s the government’s exact interest in creating a contractual relationship that it defines between two adults, giving them special rights and permissions not available to others (which I thought there was an equal protection clause to prevent), rather than simply serving to enforce a contract set up between two (or more, for that matter) consenting adults?

      1. In other words, let the couple define the relationship – the contract – and let the Government ensure that both parties honor it? Suits me! (Although you’d have to have a way to ensure that the couple’s definition of marriage doesn’t include anything that violates existing laws.) I’m thinking the Government wouldn’t (or shouldn’t) care who defines the relationship as long as the Government gets its money and the kids are properly taken care of.

        I think the Government might take a more active interest if such a contract appeared to violate the rights of one or more of the parties. What kind of marriage definitions might some radicals, cults, or fundamentalist religious groups come up with? And would having a self-defined legal contract make it more difficult for an abused person to get out of such a marriage?

        Oh, well – just speculation. I don’t see any of this happening any time soon.

  28. The constitution does not set out a right to marriage, but I believe it is not a stretch to say if falls under the “nor deny to any person within its jurisdiction the equal protection of the laws” 14th. Marriage provides protection and privileges to those involved in the union. I do agree that marriage does not have a place in government, but as long as it is a legal contract between two people, the most important in my opinion, the 14th gives an obligation to deal with people fairly. Being gay is not a choice, as polygamy is, by defining a legal protection, marriage, as excluding them is a violation of equal protection under the law.
    Get marriage out of the government, but as long as it is, it better not discriminate. If it does our nation has two tiers of legal protections when it comes to the most important of human bonds.

    1. “Being gay is not a choice, as polygamy is”

      Yes but choosing to get married whether gay or polgamous is a choice.

      I don’t see how you can defend one and not the other.

      1. You don’t understand what’s fallacious about a fallacious appeal to a slippery slope?

    2. “Being gay is not a choice, as polygamy is”

      False. Being gay is not a choice because one doesn’t choose one’s sexual attractions.

      How is that any different than polygamy?

      Do people CHOOSE to be sexually attracted to multiple people? No, they just are..

      If you say “ah…but you CHOOSE whether to enter into a marriage, despite your attractions” then you’re making the exact same argument religious conservatives make…that CHOOSE to engage in the act.

      You’re distinction is contradictory.

      1. edit: That should read “…that homosexuals CHOOSE to engage in the act.”

      2. My use of words was not the best, but maybe I can explain better what I was thinking in that distinction.
        Marriage is a relation between loving people, but in the government it is union that provides rights to people. Many of these rights make sense only in the case of two partners in the marriage. If the government provides rules on which consenting people can engage in marriage and which can not is a violation of the 14th. My polygamy comment was stupid, but as the government defines the rights in marriage it only make sense as a monogamous. I personally think multiple spouses should be permissible, but I don’t think the equal rights under the law provision would require polygamist marriages be a legal union following from the current legal definition of marriage. I hope what I said makes sense.

    3. The Constitution doesn’t grant our rights to us – it defines the powers and limits we grant to our Government. As far as I know, the Constitution does not give the Government the power to say who can get married and who cannot. Therefore, I would think that no one needs the Government’s permission – or “license” – to get married. (What we call a “marriage license” is sort of like a dog license. You don’t need a dog license in order to purchase a dog – it’s just to let the Government know you have one. A “marriage license” lets the Government know you’re married. Issuing licenses also provides a nice little revenue stream for the Government.)

      The real problem shouldn’t be the Government’s saying who can and can’t get married. It has no power to do so that I can see. The real problem is money – property, taxes, inheritance, and Government benefits. As long as the Government giveth and the Government taketh away, it has some degree of control over how “marriage” is legally defined – in effect, who’s married and who isn’t.

      I don’t think the Government is ever going to stop being interested in married people’s cash and property. I don’t think married people are ever going to stop wanting Government benefits. So…what’re you gonna do?

  29. Hello Grizzly and all…
    Thanks for pointing out my error, I was unclear. The fact that athiests can MARRY, by a civil union/justice of the peace ceremony, doesnt change the fact marriage is at its roots and heart a religious thing. Atheists wish to deny that, and they can. Im not one of the “religious”, Grizzly, but I do know history and the origins of marriage in the USA. Thats why I think as Mr Harsanyi does, that GOVT should get out of it; marriage by GOVT violates the first amendment. Thats why I state having GOVTs do ONLY civil unions for ALL would ensure true equity and civil and legal rights…for all. As Monster from The Id (great name) said, the GOVTs own ritual SHOULD be gender blind, race blind, and (I say) numbers of particiants blind…and that CONTRACT between the people and the govt should be just that. A legal contract. NOT a marriage, considering what marriage actually is. I disagree with the chatter “Me”; the GOVT has no right to impose moral views, so long as all in the contract are consenting to it. Thats why if marriage and state WERE seperated, the govt would have no right to DENY gays that civil /legal contract…as it would be the exact same that straights have.

    1. I think it’s equally correct to say marriage has its history and origins in law, it’s just that law and religion have been historically intertwined. But we don’t do that here, so marriage qua civil institution is the matter at hand.

      1. I understand that you think plumbers, bakers and just about anyone with a set of skills should have to get a license from the man before I can trade with them for their services. But I’m surprised that you think two people should have to get a license before they can get married and, assuming it’s harder to adopt without being married, start a family. It seems like some “Family values” based authoritarianism usually reserved for neo-cons.

        1. I recognize that marriage benefits for heteros aren’t going anywhere, so it’s important to establish equal rights. I’m not even sure where I stand on whether there should be rights for married couples–it’s kind of an absurd question to even worry about, since, again, they’re not going anywhere.

          1. I agree that it’s important to establish equal rights and the California ruling is a victory. But it’s still a few elected or appointed officials(or majority opinion in some unconstitutional cases) saying you must submit your choice of partner or spouse and(if they find it acceptable) granting you certain gifts which were either paid for by other people or wrongfully withheld from you in the first place. Can’t you stand on principle and just say “It’s none of your business whom I or anybody else marries or if I stay single!”? Not because you want eveybody to have equal permission but because the permission is not theirs to give or to deny. In fact Americans should’ve denied the government permission to play match maker/breaker when they tried to keep interracial couples from getting married.

            1. The government benefits and rights that come with marriage require the government. Nobody’s stopping anyone from calling themselves married or anything else.

              1. I’m sorry, but I don’t understand this statement at all. The whole point here is that granting married people benefits based on their marital status amounts to a subsidy, which is inherently unjust as there is no way to rationalize penalizing someone for being single, which is in effect what the subsidy does. The fact that it takes a government for a government to screw somebody over isn’t much of an argument.

      2. I think it’s equally correct to say marriage has its history and origins in law, it’s just that law and religion have been historically intertwined.

        Then how do you explain species that have no religion or law, yet that recognize married couples mong them?

  30. The original Prop. 8 language here in CA talked about “enduring unions for the purpose of taking care of the next generation” type language.

    The thing is, a heterosexual couple can fight, cheat, lie, engage in criminal activities and provide a horrible environment for raising kids. This is by no means unknown here in Los Angeles.

    So what are you gonna do?

    1. That “type language” exists because for centuries, the purpose of marriage WAS to take care of the next generation.
      To me, all of the examples of crappy families today only reinforce the importance of that. Love, romance, and all that fickle BS is secondary.

      If gay marriages and the incentives created by it are just as conducive to raising a family as claimed, then fine. But I don’t see it. To me, the main argument going for gay marriage is “but gay people have feelings too!”….and that’s not good enough to topple an entire institution.

      1. First, I don’t see any institution toppling by letting gays get married. Second, I do think the equal protection under the law constitutional argument is valid. Third, one of the judges arguments was that gay marriage is about creating stable relationships to support families, and that gay couples and their children should have access to the stabilizing effect the legal benefits of marriage provides. It doesn’t matter if gay marriages are as stable for the children as hetro couples, but that families with gay parents in a legal marriage are more stable than families with unmarried gay parents.

        1. Otherwise, you have an argument that may make sense, if it was not terrible, to ban gay adoption, but I don’t see how it is applicable to gay marriage in a status quo in which gays can adopt. If gays can adopt then wit only matters that there are benefits to family stability provided by gay marriage,

      2. If the purpose of marriage was, for centuries, to procreate, then why don’t traditional marriage vows contain language to that end? There is nothing in traditional vows about children- just the two people involved committing to each other and no one else.

  31. Basically what this does (on the government end of things) is turn a marriage into a special type of corporation/LLC but without the “corporate veil.” You get a legal entity, jointly owned and controlled by the spouses, capable of entering contracts, owning property, etc. If you want to do something wacky (a “line marriage” ala “The Moon is a Harsh Mistress” or whatnot), that can go into the founding contract. Everything more or less falls into place from there, from standard corporate law. Sure it’s dull and unemotional, but dealings with the government *should* be, and with the rising popularity of prenuptial agreements we’re heading in this direction anyway.

  32. Who cares?

    Anybody who takes a case to court that hinges on whether person A is person B’s spouse. All this business about getting gov’t out of the marriage issue facilely neglects this point, which is what the issue is all about: having a legal way to determine, when someone says a certain couple is married and someone else says they’re not, who’s right.

    Is there any other personal relationship that is defined by government?

    Yeah, any time somebody takes a paternity case to court.

    1. “Anybody who takes a case to court that hinges on whether person A is person B’s spouse. All this business about getting gov’t out of the marriage issue facilely neglects this point, which is what the issue is all about: having a legal way to determine, when someone says a certain couple is married and someone else says they’re not, who’s right.”

      You determine it the same way as you determine a contract when I say you owe me money. You have a signed, witnessed, and registered document binding the two parties, with provisions as designated therein. Government does not have to issue a license for me to borrow a hundred bucks from you in order for you to legally enforce your rights in court.

      “Yeah, any time somebody takes a paternity case to court.”

      Paternity is a genetic relationship and is not determined by the government. The enforcement of the implied contract between you and the child you father, however, is within the purview of the courts. The court can order a paternity test to determine if said contract does indeed exist.

  33. A lot of you don’t seem to realize that many of the things covered by marriage are also covered if not married. If you’re not married you can still get alimony/palimony, child support, inherit. You can also sign pre-nups that change the rules normally considered the rules of marriage under the state. The real issue is that this is a contractual agreement between adults. It shouldn’t matter if you’re opposite sex, same sex or even multiples. All the state should be involved in is ensuring that the contract between those parties is fullfilled and enforced. I don’t need a license to contract with a plumber and it doesn’t matter if it’s a same sex or opposite sex plumber, same color or same religion, all that matters to the state is that I fullfill my end of the contract and the plumber does the same. Marriage is a religious ceremony and isn’t even considered legal by the state unless it’s under certain conditions, and gays can marry in churches with no intervention allowed by the state. I’ve said for years the state needs to get out of the marriage business and leave it to the people, just let the state enforce the applicable agreed upon contract.

    1. I pretty much agree with everything you said. I think it gets complicated because the Government taxes “married” people differently and provides them with different benefits. What’s to prevent some woman and me from defining a marriage contract such that we hold no property in common, report our incomes separately, do not live anywhere near each other, but have one child whom we’re entitled to claim as a deducation on our taxes? I’m not actually sure what the results of that would be. What I mean is, you could end up with a lot of mighty strange marriage contracts, some of which might have nothing to do with two people setting up housekeeping and everything to do with screwing the taxpayer. A Government-defined marriage contract might help avoid that situation.

    2. Isn’t the applicable agreed upon contract in this case marriage?

  34. The author seems to miss the point that people who wish to get married actually want their union to be “officialized”.

    The other point he seems to miss is that the definition of marriage is getting wider, not narrower thanks to … the judiciary branch of gvnt.

    In other words, I don’t get what this piece is arguing.

  35. The state is involved in marriage because of the issue of property rights and the question of legitimacy of children and their inheritance rights, as well as the issue of increasing government’s wealth through various forms of taxation on property, its transfer, and inheritance.

    If the state would stay out of regulating probate law, it could also stay out of marriage.

    Myself, I’m all for bringing back fault grounds, and, ultimately, putting all marital issues in the hands of the ecclesiastical courts.

  36. If marriage were taken away from the state, who would deal with divorce and other legal matters such as property and other spousal privileges like medical decisions?

    Saying the state shouldn’t be involved in marriage to get around the issue of gay marriage is tossing the baby out with the bath water, which is to say it is no solution at all.

    1. Don’t everyone answer me at once!

  37. Concerning those of your arguing for polygamy- how would the law deal with a medical condition of a man with two wives where one wife wants the husband left on life support, and the other wife wants to remove him from life support?

  38. The author asks:

    “Is there any other personal relationship that is defined by government?”

    Perhaps he should ask adoption lawyers.

  39. Family court is a whorehouse managed by lawyers, “therapists” and professional feminists.

    The gay community fought to keep “the government out of their bedrooms” in Texas when hey fought against anti-sodomy laws.

    Now they’ve opened the door to the sewer pipe that is Family Law.

    This won’t end well. God help them.

  40. There is no better, only the best ,your vision is the
    best answer
    All men and women fashion. You don’t feel the same.

  41. Another poorly written and researched article.

    The author start’s in error by accepting an invalid piece of homophobe propaganda. This is not a battle over the definition of marriage. Marriage is not defined by who may enter it. If this were true then recent trends increasing the age of marriage would have redefined marriage. The Loving v Virginia ruling would have changed the definition, as well.

    The definition of marriage is defined by the romantic and legal bond of the participants. It is not defined by the gender, race, income level or even religion of the participants. Certainly, those things may influence a participant, but only through the participant’s exercise of free choice.

    From a romantic context marriage is defined by the emotional commitment of the two parties. This gives more meaning to a marriage than the blessings of the state or a church ever could and in many ways, homosexual couples cannot be denied the ability to form such a bond. The state really has little interest in setting this part of the definition.

    For legal purposes, the only purposes relevant to the court or state, a marriage is defined by the legal contract. The state has long had an interest in this for the protection of property rights of the participants to such a contract and the property rights of the offspring.

    The argument that the state should not be involved in marriage leaves too many unanswered questions.

    For instance, how will communal property be dissolved? What about inheritance?

    These are usually answered with the response that the contract will determine these matters. But, the courts and therefore the state and society are burdened with settling disputes over the contract. Since the court and society are charged with settling the contractual disputes it is not improper that they have some general say in the fairness of such contracts. For instance, a court surely must be able to reject a provision of a contract that says upon the husband’s request the wife will be shot out of a cannon and into a pit of alligators (a man can dream… lol). The court, state and society also have an interest in determining if the parties to the contract were/are competent to consent.

    The state can not be taken out of marriage so long as it settles contractual disputes. The courts, state and society have just cause to reject unjust contractual provisions. In order to efficiently discharge of its duties the state has some say in regulating the general form of the marriage contract. Otherwise, the court system would struggle under the weight of dissolving a broad spectrum of cohabitation contracts.

    Now David Friedman would have some good arguments against this, but no minarchist can, without ignoring reality.

    So the courts, state and society have some say, but can it reject gay marriage? This was the question put to Walker. He gave the libertarian answer.

    Walker’s ruling does not define marriage nor is it primarily concerned with the definition. It is primarily concerned with the definition of “due process and equal protection of the laws.” The purposes of restricting marriage to one man and woman have nothing to do with the state’s proper interest in marriage. It does not affect the state’s duties in regards to marriage. It is certainly suspect as being discrimination based on a narrow morality not relevant to the state’s proper interests. If voters disagree and feel they have a rational basis, they are empowered to file a legal brief to present their arguments.

  42. Eh bien, je suis un bon poste watcher vous pouvez dire et je ne donne pas une seule raison de critiquer ou de donner une bonne critique ? un poste. Je lis des blogs de 5 derni?res ann?es et ce blog est vraiment bon cet ?crivain a les capacit?s pour faire avancer les choses i aimerais voir nouveau poste par vous Merci
    ????? ???

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