Thursday, February 09, 2012

church & state

I heartily endorse Mungo's post yesterday that the 14th amendment is a straightforward reason to overturn Prop 8 in California and I'm totally in favor of same sex marriages.

However, the following comment appeared and got a fair amount of support in the thread:

"Why should the government ever be in the position of defining marriage? Let that be up to churches and have the government enforce the contracts."

People, that is nuts.

Say I'm an atheist. Where's my "equal protection"? Say a church allows marriages between 40 year olds and 12 year olds. Should the government "enforce the contract" or throw the church leaders in jail. Suppose a church refuses to allow divorce for any reason.

Note that "just go find another church" is not a viable solution. Not for the 12 year old. Not for the person in the abusive relationship. The simple fact of the matter is that churches can create all kinds of mischief and it's just not that easy to walk away if your family, future spouse, social network is all bound up in the church.

Sure majorities make mistakes. Pure majority rule can be tyrannical to minorities. But in my opinion, Theocracies make way more mistakes and create much more tyranny.

I simply don't see the "tyranny" of having the Government be in the marriage business in the USA, especially if it would simply respect the Constitution and provide equal protection to all its citizens.

Are you people seriously against a law denying the right to marry 12 year olds?


John said...

Are you seriously suggesting he was seriously suggesting this? I think the comment was incomplete in its detail, but I think the commentator expected his comment to be taken more in good faith*. I thought what he was trying to say wasn't all that different from what I said, just not as complete. Perhaps I am assuming too much and should let the commentator speak for himself.

*Forgive my theocratical parlance

Robert S. Porter said...

I think you are being patently unfair to the comment. I think think you know you are.

The standard libertarian response to marriage is "get the government out of the marriage business". But this view does not imply than anything is then ok.

First off, there is the consent issue. Almost certainly a 12 year old cannot consent to such an arrangement.

Secondly, the government can get out of the marriage business for the most part without condoning children from entering a spiritual marriage, or whatever.

It's not the libertarian dream, but Germany separates the legal and religious function of marriage. The church function is purely symbolic.

Chris said...

There are already protections for any abuses like that, aren't there? After all, for the example you gave, if they ever consumated the "marriage" it would be illegal. They could not cohabitate (by themselves) unless the 12 year old was legally adopted (which would be a whole other set of weirdness)and that would require the consent of the guardian I think. Most other financial or legal contracts that would replace what is written into marriage would be impossible to sign with a twelve year old already as well. I would much rather have marriage be a social convention and let the government handle the contractual legalities as it normally would. This way, no one is imposing their view of marriage on anyone else. If your problem with theocracy is that it is imposition of unwanted moral views, you get it either way with your suggestion -- you just get the moral views you personally agree with rather than those you don't.

August said...

What equal protection? I don't know if the commenter actually realizes it or not, but this would fall to private contract, so as an atheist, you would be able to contract with your spouse. The church would be a third party, possibly even a decent first step to private law, where many things could be adjudicated without going through the state divorce industry mill.
But as an atheist, you still have the same protection under the law as anyone else- you'd just end up in the state court faster, unless you put something about arbitration in your contract. Indeed, you'd likely have better protection, if you are a man, because the concept of this contract being a real contract would come back. We don't have equal protection under the law now. A wealthy man can be (and has been) made to pay alimony to an adulterous ex-wife, for instance. The divorce industry welcomes gay marriage precisely because it will provide more juicy targets for their greedy little hands.

Johnson85 said...

Have to agree with the other comments? Why are you attacking a straw man so vigorously? This doesn't seem to be the typical approach at KPC. Is there a point you're trying to make that I'm missing? Was this a facetious post?

Because I've never heard anybody argue that the state getting out of the marriage business means it should get out of the enforcing contract business, enforcing statutory rape business, etc. Just a weird post as far as I can tell (not weird for many blogs, but at least weird for this one).

Damien said...

The courts have never blindly enforced contracts with no regard to their contents. It's not like they would say "sorry lady, there's a contract, so go and get raped for the next 40 years because you signed a contract!".

If you are an atheist, I'm sure that there are atheist/secular humanist organizations that could offer the same services. Alternatively, there could still be a non-mandatory government contract (which would not get special treatment compared to the private alternatives).

If a church were to allow marriages between 12 year olds and 40 year olds, the courts could still refuse to enforce the contract on the grounds that minors lack the capacity to make a contract.

If a contract were to disallow divorce, there might be damages to pay in case of breach of contract. We'd probably be in a situation similar to a breach of a promise of marriage, where specific performance would not be allowed. The church would of course be free to shun the defendant or restrict their privileges to participate fully in the ceremonies of their religion (as the Catholic Church currently does with divorced people who have remarried).

Yes, it's hard to walk away from a church but people do it every day. And, after all, in a free society, people will make mistakes, associate with the wrong crowd, submit to peer pressure, etc. But as long as there are legal protections in place (e.g. laws against kidnapping and harassment), it's up to people to decide whether they want to remain part of an organization or not.

SheetWise said...

Agree with the comments. OP is one of the strangest and most statist ideas I've ever read on this blog. People do not have a right to contract illegal activities -- domestic relationships are not illegal.

Anonymous said...

First and foremost even with the government defining marriage - this stuff still happens. Second illegal contracts can not be enforced - how many drug disputes are settled in the courts. Third if people marry in a church that refuses to allow (have you heard of the Catholic church?) the church will have rules to deal with it (the Catholic church does now - although with enough money you can buy an annulment). I could go on, but this was a poorly thought out post.

Mike said...

As one of the commenters on yesterday's post that was taken to task for what I thought was a light hearted comment, I am glad to see the defense of Anonymous. When read in a charitable manner, there is nothing controversial about his comment.

Anonymous said...

The easiest response is to simply get the government out of marriage. Drop any financial incentives and make a marriage purely ceremonial. That would be perfectly fine with me.

If we are going to let the government into the marriage business as you say, and we want to protect all citizens, it seems that we would need to allow for polygamy as well. Again, I have no problem with that.

Anonymous said...

I think what the poster meant was. Why should the government ever be in the position of defining marriage between two consenting adults. If there is abuse between the spouses then the law has provisions for that.

The problem with government being involved in marriage is that it sets up a situation that forces religious institutions to marry couples that they feel are not qualified to marry (same sex marriage). They are left with the choice to either preform these types of marriages or preform no marriages at all. it effectively takes away their rights.

Shawn said...

I don't understand what you don't understand about this, Angus...marriage as a club good. That club doesn't *have* to be a church, but then there's nothing defining what "church" means beyond some huge, broad brush definition. Anybody (legally able to consent) can marry anybody else in whatever way they want to. If the government wants to decide to use that thing called a marriage as a shorthand, conveying legal benefits or other goodies to the participants in this marriage-thing, they certainly can...but they probably won't, because as you point out, the gov doesn't want to say "presbyterian marriages we accept...LDS and first church of the shriven hamster, not so much."

So, the gov uses something else to convey those benefits, and people can choose the level of commitment, within their chosen club, that they want. My PCA church then has a certain set of expectations of its' freely chosen married couples (jack and diane), probably choosing not to wed homosexual couples, while the methodist church down the street does marry jack and steve. If jack/diane and jack/steve meet whatever litmus test the gov applies for conveying the benefits currently extended to married couples, they get the benefits.

All this "get the gov out of the marriage business" does is divide the contractual obligations and benefits from the phrase "married." Why is that a problem?

Shawn said...

of course, your club might enforce its own contractual obligations and benefits...but there's nothing wrong with that (assuming they're not already legally considered abusive).

sean said...

You seem to equate statutory rape and gay mairrage. Or if sex isn't implied in mairrage (it is), it's still comparing dating a 12 year old to dating a person of your own gender. Is it or is it not a problem for a grownup to date a 12 year old prior to marriage??? If you said yes, rethink whether that example really made your case for gov't intervening in marraige.

John said...

Now seems as good a time as any to ponder the wisdom of a galactic hero:

"Everything gets married. Even animals and spiders." - Space Ghost

Brad Hutchings said...

I'm all for getting government completely out of marriage too. However, I realize that the two toughest issues to address with the government completely out of marriage are spousal and child support. Despite the preponderance of to earner families, there can often be situations where one earner sacrifices career ambitions or take-home pay to care for kids or dogs or whatever. And kids need to be supported if parents dissolve.

I would fear that getting government out of marriage might completely might drag government into raising kids. Imagine having to pay "child support" while your version of family is "intact". That's really intrusive.

Anonymous said...

This is the dumbest post I've ever read in my life!

SheetWise said...

"This is the dumbest post I've ever read in my life!"

Don't get out much, eh?