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Kmiec: Time to get government out of the marriage business (Rely on contract law instead)
HOTAIR.COM ^ | 5/28/2009 | Ed Morrissey

Posted on 05/28/2009 5:19:11 PM PDT by SeekAndFind

I don’t 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 Obama’s 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 over–quite appropriately, it seems to me, the concept of marriage to churches and a church understanding,” he said.

George counters:

“It’s a pre-political institution,” he said. “It exists even apart from religion, even apart from polities. It’s 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 government–the state–has 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 don’t know where Professor Kmiec is getting his idea, but it’s a very, very bad one.”

Normally in any debate between Kmiec and George, I’d 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, I’d 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 won’t back a revocation of no-fault divorce, either, which strongly implies that a government imposed “integrity of marriages” solution won’t be popular at all. I’d expect this to be the eventual solution to the definition-of-marriage argument.


TOPICS: Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: catholics; contractlaw; gaymarriage; government; homosexualagenda; homosexualmarriage; kmiec; samesexmarriage

1 posted on 05/28/2009 5:19:12 PM PDT by SeekAndFind
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To: SeekAndFind
Then let's get the government out of America's personal, spiritual, and social business. Completely.


2 posted on 05/28/2009 5:21:54 PM PDT by Viking2002 (This tagline for rent.)
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To: SeekAndFind
If you support Hussein you're not a Catholic.At best you're a Unitarian/Universalist impersonating a Catholic.At worst,you're an atheist impersonating a Catholic.

It's just that simple.

3 posted on 05/28/2009 5:22:56 PM PDT by Gay State Conservative (Christian+Veteran=Terrorist)
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To: SeekAndFind

Doug Kmiec, a prominent Catholic who backed Barack Obama’s

Idiots flock together or was that birds.


4 posted on 05/28/2009 5:23:01 PM PDT by edcoil (IF CA rolls pollution standards back to 1990 levels, lets roll CA spending back as well.)
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To: SeekAndFind
Doug Kmiec, a prominent Catholic who backed Barack Obama’s presidential bid,......

There went his credibility.

5 posted on 05/28/2009 5:24:54 PM PDT by umgud (Look to gov't to solve your everday problems and they'll control your everday life.)
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To: SeekAndFind; P-Marlowe; Dr. Eckleburg; wagglebee

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.”


6 posted on 05/28/2009 5:26:47 PM PDT by xzins (Retired Army Chaplain, Pro Deo et Patria)
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To: SeekAndFind

“Doug Kmiec, a prominent Catholic who backed Barack Obama’s 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!


7 posted on 05/28/2009 5:27:28 PM PDT by WOSG (Why is Obama trying to bankrupt America with $16 trillion in spending over the next 4 years?)
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To: SeekAndFind
“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 government–the state–has 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,”

Well said.

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.

8 posted on 05/28/2009 5:29:19 PM PDT by WOSG (Why is Obama trying to bankrupt America with $16 trillion in spending over the next 4 years?)
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To: SeekAndFind
"“Family is built on marriage, and government–the state–has 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'm with George.

9 posted on 05/28/2009 5:29:47 PM PDT by JWinNC (www.anailinhisplace.net)
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To: xzins; P-Marlowe; Dr. Eckleburg; wagglebee

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.


10 posted on 05/28/2009 5:39:28 PM PDT by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: WOSG
Kmiec is nuts.
11 posted on 05/28/2009 5:39:35 PM PDT by utahagen
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To: SeekAndFind

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.


12 posted on 05/28/2009 5:39:47 PM PDT by SampleMan (Socialism enslaves you & kills your soul.)
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To: SeekAndFind; 185JHP; AFA-Michigan; Abathar; Agitate; AliVeritas; Antoninus; Aquinasfan; ...
Homosexual Agenda Ping

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13 posted on 05/28/2009 5:41:08 PM PDT by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: SeekAndFind
Doug Kmiec, a prominent Catholic who backed Barack Obama’s 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 destroy a vital, millenia-old social institution.

There; that's better.

14 posted on 05/28/2009 5:41:34 PM PDT by Publius6961 (Change is not a plan; Hope is not a strategy.)
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To: xzins; P-Marlowe; Dr. Eckleburg; wagglebee

One last thought, unless the government is prepared to remove marriage penalties from the tax system this whole notion is pointless.


15 posted on 05/28/2009 5:42:34 PM PDT by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: xzins
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.”

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.

16 posted on 05/28/2009 5:45:36 PM PDT by WOSG (Why is Obama trying to bankrupt America with $16 trillion in spending over the next 4 years?)
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To: SeekAndFind
Doug Kmiec

What this schmuck does not tell you is that contract law
has always been available to homosexual couples.

The gay "useful idiots" are being used to deconstruct
society by the Marxists.


17 posted on 05/28/2009 5:45:58 PM PDT by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: SeekAndFind

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.


18 posted on 05/28/2009 5:46:01 PM PDT by Titus Quinctius Cincinnatus (We bury Democrats face down so that when they scratch, they get closer to home.)
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To: wagglebee

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.


19 posted on 05/28/2009 5:46:21 PM PDT by denydenydeny ("I'm sure this goes against everything you've been taught, but right and wrong do exist"-Dr House)
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To: wagglebee

What contract law? obama and his henchmen killed it.


20 posted on 05/28/2009 5:46:36 PM PDT by sport
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To: SeekAndFind
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.”

He's right on that. You want to end the homosexual marriage debate, end no-fault (unilateral) divorce.

21 posted on 05/28/2009 5:48:40 PM PDT by Tribune7 (Better to convert enemies to allies than to destroy them)
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To: denydenydeny
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.

This will happen whether the government recognizes marriage or not.

22 posted on 05/28/2009 5:53:35 PM PDT by wagglebee ("A political party cannot be all things to all people." -- Ronald Reagan, 3/1/75)
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To: SeekAndFind
Comment on Hot Air: This canard of marriage is just a religious thing is a joke. If marriage came solely from religion then we would have many definitions of what marriage is as we have many religions. We don’t. Marriage as a man and a woman is universal across time, place and religion. From an anthropological standpoint one can only conclude religions co-opted marriage the same way governments did. The definition of marriage as a man and a woman is just as much cultural as it is religious. There is nothing illogical about an atheist being against calling the same-sex union a marriage than there is of him being against calling copper gold. This solution doesn’t “leave the definition up to their faith,”. It simply says the government will use their concept of marriage to apply to anybody and not what the “faith” or person of faith agree for their marriage.
23 posted on 05/28/2009 5:54:45 PM PDT by WOSG (Why is Obama trying to bankrupt America with $16 trillion in spending over the next 4 years?)
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To: denydenydeny
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.

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.

24 posted on 05/28/2009 5:56:24 PM PDT by ansel12 (Romney (guns)"instruments of destruction with the sole purpose of hunting down and killing people")
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To: denydenydeny; wagglebee
Once the church refuses, it’s off to court to get the church’s tax exemption removed

Soooo....doesn't it make more sense to change tax law than marriage law?

25 posted on 05/28/2009 6:02:05 PM PDT by xzins (Retired Army Chaplain, Pro Deo et Patria)
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To: anyone

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?


26 posted on 05/28/2009 6:02:16 PM PDT by Coyote Choir
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To: denydenydeny

yes yes...and if you cut off your foot, you wont have to put up with ingrown townails....

Same logic...


27 posted on 05/28/2009 6:13:42 PM PDT by Crim
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To: denydenydeny

Toe nails even....*grin*


28 posted on 05/28/2009 6:15:37 PM PDT by Crim
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To: SeekAndFind
I see what he is getting at, but the author, the way he portrays this “contract” would not be taking govt out of it at all, in fact it seems to me govt would be more involved.

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.

29 posted on 05/28/2009 6:18:50 PM PDT by gidget7 (Duncan Hunter-Valley Forge Republican!)
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To: WOSG

Here Here!!


30 posted on 05/28/2009 6:20:18 PM PDT by gidget7 (Duncan Hunter-Valley Forge Republican!)
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To: wagglebee

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.


31 posted on 05/28/2009 6:22:23 PM PDT by gidget7 (Duncan Hunter-Valley Forge Republican!)
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To: SampleMan

How did he respond?


32 posted on 05/28/2009 6:23:04 PM PDT by gidget7 (Duncan Hunter-Valley Forge Republican!)
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To: Viking2002
Absolutely!
Then replace it with.....
Oh wait. That's the rub. Adoption? Parent rights? Religious rights? Property rights? Tax law? The very foundation of American society? All gone.

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.

33 posted on 05/28/2009 6:24:24 PM PDT by IrishCatholic (No local Communist or Socialist Party Chapter? Join the Democrats, it's the same thing!)
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To: Viking2002

Hard to imagine the government would get out of the dissolution of marriage business.


34 posted on 05/28/2009 6:25:32 PM PDT by Ted Grant
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To: SeekAndFind
Once again, our culture is being deconstructed. Centuries of Anglo-Saxon law and tradition, recognizing marraige as an institution that precedes the state and which the state is thus obligated to honor and protect, gets casually tossed out the window.

Whenever liberals dangle the bait, libertarians always grab it, and always get hooked.

35 posted on 05/28/2009 11:21:36 PM PDT by puroresu (Enjoy ASIAN CINEMA? See my Freeper page for recommendations (REALLY & TRULY updated!).)
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To: gidget7
How did he respond?

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.

36 posted on 05/29/2009 5:30:50 AM PDT by SampleMan (Socialism enslaves you & kills your soul.)
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To: SampleMan
For a lot of people, the fewer involvements with the state the better. Better, much better, to be married in the eyes of God than the state. But it should also be solely called Holy Matrimony. If a couple wants the state civil license, they can go to a JP or a judge, in addition.

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.

37 posted on 05/29/2009 8:41:32 AM PDT by gidget7 (Duncan Hunter-Valley Forge Republican!)
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To: SeekAndFind

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.


38 posted on 05/29/2009 8:44:29 AM PDT by jwalsh07
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