Skip to comments.Kmiec: Time to get government out of the marriage business (Rely on contract law instead)
Posted on 05/28/2009 5:19:11 PM PDT by SeekAndFind
I dont agree with Douglas Kmiec often, but this may be the exception maybe. With all of the various legal and legislative challenges to the definition of marriage in states across the nation, Kmiec tells Catholic News Agency that government should restrict itself to enforcing contract law and leave the question of marriage to the churches. Robert George, a highly respected Constitutional scholar and fellow Catholic, vehemently disagrees (via The Corner):
Doug Kmiec, a prominent Catholic who backed Barack Obamas presidential bid, has endorsed replacing marriage with a neutral civil license, a proposal law professor Robert P. George called a terrible idea that would make the government neglect a vital social institution.
Speaking to CNSNews.com, Pepperdine University law professor Doug Kmiec said that although his solution to disputes over the definition of marriage might be awkward, it would untie the state from this problem by creating a new terminology that would apply to everyone, homosexual or not. Call it a civil license, he said.
The net effect of that, would be to turn overquite appropriately, it seems to me, the concept of marriage to churches and a church understanding, he said.
Its a pre-political institution, he said. It exists even apart from religion, even apart from polities. Its the coming together of a husband and wife, creating the institution of family in which children are nurtured.
The family is the original and best Department of Health, Education and Welfare, he continued, saying that governments, economies and legal systems all rely on the family to produce basically honest, decent law abiding people of goodwill citizens who can take their rightful place in society.
Family is built on marriage, and governmentthe statehas a profound interest in the integrity and well-being of marriage, and to write it off as if it were a purely a religiously significant action and not an institution and action that has a profound public significance, would be a terrible mistake, George told CNSNews.com.
I dont know where Professor Kmiec is getting his idea, but its a very, very bad one.
Normally in any debate between Kmiec and George, Id rely on the latter, especially on matters of faith. However, in this case, Kmiec has the better argument, mostly because the state gave up protecting marriage and children decades ago. The advent of no-fault divorce, in which one party can abrogate the marriage contract without penalty or consideration of the other party, has completely destroyed the notion that the government plays a role in protecting integrity and well-being of the family. In fact, Id argue that serial marriers of the kind seen in Hollywood (or in Washington DC) do more to undermine marriage than single-gender unions would ever do.
The state could get out of the marriage business entirely, and have its citizens enter into partnership contracts instead. That might have the salutary effect of putting mechanisms into place for dissolutions that would keep divorces from dragging on through the courts, but also give the state more ability to enforce the terms of the contract than government is willing to do with marriages that lack pre-nuptial agreements, especially on penalties for abrogation. That would also give the courts an opening to finally get rid of palimony, that noxious avenue where the courts have to make determinations whether contractual relations exist between people who neither execute a contract or take wedding vows.
Churches could then recognize marriage along their own precepts. Catholics who want to get married in a Catholic church would still have to be a heterosexual couple above the age of consent, at least one of whom is Catholic, without issues of consanguinuity, but would have to also sign a partnership contract for the civil recognition of the relationship. It would be little different than the current requirement of getting a marriage license now, except that the agreement would have more detail on the partnership than the current marriage license provides, although even that could be more or less boilerplate for many couples.
Would the public accept the withdrawal of government from the blessing of marriages? Not at first, certainly, but the public also wont back a revocation of no-fault divorce, either, which strongly implies that a government imposed integrity of marriages solution wont be popular at all. Id expect this to be the eventual solution to the definition-of-marriage argument.
It's just that simple.
Doug Kmiec, a prominent Catholic who backed Barack Obamas
Idiots flock together or was that birds.
There went his credibility.
George is definitely right and Morrissey’s rebuttal that the state has no interest in marriage because the state and society has handled it badly.
That’s like saying baseball teams have no interest in pitching because they’ve drafted poorly.
Some philosophy whiz kid please give me the name of the logical fallacy employed here by Morrissey. I would call it “throwing out the baby with the bath water.”
“Doug Kmiec, a prominent Catholic who backed Barack Obamas presidential bid”
OBAMA DERANGEMENT SYNDROME ALERT!
First this guy thought Obama was ‘pro-life’ ... and now his solution to saving marriage is to destroy it in law.
Way to go, you are now officially a lunatic!
Rather than get govt out of the marriage defining business ... let's first get the liberals, socialists, cultural marxists, confused post-moderns and others OUT of the marriage defining business.
I'm with George.
Kmiec’s absurd idea is nothing more than a new tactic by the left to LEGITIMIZE homosexual “marriage”.
If the states were to no longer recognize the validity of marriage and leave it to religious groups, there is little doubt what would happen:
Leftist “churches” (and I use that term very lightly as they would probably be nothing more than social clubs where leftists go to talk about “judge not lest ye be judged” and sing “Kumbaya”) would start “marrying” homosexuals and giving them marriage certificates. These certificates, signed by an “ordained” minister/community organizer would be every bit as legitimate in the government’s eyes as a true marriage certificate signed by a Bible-believing minister, priest or rabbi.
I talked to my priest this morning about the possibility of the church making a civil license optional.
Get married in the Church and never file a marriage license. All legal ramifications can be handled as suggested, contractually.
Be sure to click the FreeRepublic homosexual agenda keyword search link for a list of all related articles. We don't ping you to all related articles so be sure to click the previous link to see the latest articles.
Add keywords homosexual agenda to flag FR articles to this ping list.
There; that's better.
One last thought, unless the government is prepared to remove marriage penalties from the tax system this whole notion is pointless.
It's the same logical fallacy used by those who wanted to cut-n-run from Iraq. "We screwed up and things arent perfect, so lets not care about the consequences, lets just go."
It's a reverse slippery slope argument - 'ah, we are halfway to Hell in a bucket, lets go the distance' A form of perfectionism - 'it aint perfect, so lets break it fully.'
Government has mucked things up - BUT - Ed Morrisey forgets that while goodly numbers of marriages break up, 50% stay intact. Children in intact marriage are far less likely to be victims of abuse and have better life outcomes - less juvenile delinquency, more likely to graduate HS and College, etc.
The outcome of this policy is to simply destroy the last vestiges of an institution that is vital to civilization.
Maybe there are people coming up with such horrible, dreadful ideas so the still-bad-but-less-dreadful idea of gay marriage becomes more acceptable. I dunno, but its beyond bad to end the definition of marriage in law.
The gay "useful idiots" are being used to deconstruct
What this schmuck does not tell you is that contract law
has always been available to homosexual couples.
society by the Marxists.
The gay "useful idiots" are being used to deconstruct
Uh, no. Marriage is an institution which is bedrock to the stability of our culture. The commonwealth has a vested interest in maintaining its sanctity and its applicability only to heretosexuals.
The danger (and I hate to agree with Kmiec) is that once gay marriage is the law of the land everywhere, two men can walk into a Catholic or Southern Baptist or Greek Orthodox church and demand to be married there.
Once the church refuses, it’s off to court to get the church’s tax exemption removed, using the Bob Jones decision as precedent. Many believe that this is the real agenda behind the gay marriage movement—to defund all conservative churches.
Separating marriage into religious and civic understandings may be the only way to head off this nightmare.
What contract law? obama and his henchmen killed it.
He's right on that. You want to end the homosexual marriage debate, end no-fault (unilateral) divorce.
Once the church refuses, its off to court to get the churchs tax exemption removed, using the Bob Jones decision as precedent. Many believe that this is the real agenda behind the gay marriage movementto defund all conservative churches.
This will happen whether the government recognizes marriage or not.
Why would that be, no one can do that now. You and your girlfriend cannot require any minister or church or faith to perform a marriage ceremony for you.
Soooo....doesn't it make more sense to change tax law than marriage law?
If marriage is replaced by a civil license (and no doubt, a fee) issued by the state for the unchurched, couldn’t the state re-define the legal agreement’s terms after that point as it saw fit or as some disgruntled groups petitioned Congress, especially if the state no longer is bound by contract law, as in the Chrysler negotiations? And wouldn’t that god-like power prove too irresistible a temptation to wield over us, the people?
yes yes...and if you cut off your foot, you wont have to put up with ingrown townails....
Toe nails even....*grin*
There should be a way to enter into Holy matrimony without the state, without a license from the state, only permission from the church. Those would leave govt out of it. But I don't see govt getting out of it, our government is too entrenched in it. Social Security, for one thing. Marriage penalties are another. There are many ways.
What is needed is for marriage to be separated from “civil rights” it isn't one. Nor is it an inalienable right. Pursuit of it is, but marriage is not. And for all the homosexuals, NEITHER IS SEX! When courts allowed the equal protection clause to be co opted, that is when all the trouble started.
OK you do have a point there. I know a few elderly couples, who have been forced to divorce in order not to lose their homes and stay out of nursing homes. I feel for them. It happens a lot.
How did he respond?
Yip yip yahoo. 5,000 years of Western Society thrown over by people with an American Idol attention span. Maybe it was the fluoride in the water. Maybe it was public education. Whatever it was, it was toxic.
Hard to imagine the government would get out of the dissolution of marriage business.
Whenever liberals dangle the bait, libertarians always grab it, and always get hooked.
I think it struck him as a unique idea. He thought about it and noted that the state wouldn't recognize Church weddings. I responded that such recognition was rarely beneficial anyway, as the state puts a penalty on marriage.
He then cocked his head in thought again and stated that if the State did invent a new non-Christian definition, that he thought that the Church should indeed start to marry people without a state license.
It was pointed out to me, that if they did marry people without the state license, unitarian churches and Episcopal churches would marry gays. But they have been for years. Those are just not recognized by states.
Any person with eyes and ears need only look at what the Great Socciety did to the urban family and the resultant gross expansion of government to realize just what a stupid idea this is from a conservative point of view.