I got to following the links and got into a discussion at:

http://rightwingnews.com/2010/08/big-announcement-right-wing-news-is-sponsoring-homocon/

And I started thinking. Marriage is a function of the church. It only became a government function in order to prevent whites from marrying blacks. Bigotry. So I wonder if gay marriage bans couldn't be seen as preventing the free exercise of religion. After all some churches have no problem with marrying gays.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Interesting argument. And if marriage is a religious sacrament, the state has no business it it, period. Any more than if they decided to license priests.

http://www.classicalvalues.com/archives/2007/11/post_518.html

(Not that anyone will care but unfortunately, the case for gay marriage carries with it an implied recognition of state supremacy in one's personal and religious affairs.)

What about contract law? Does the state have any interest in that, and isn't marriage a contract between two people?
Or should we go the totally anarcho-libertarian way and have private, for hire judges and courts? What about divorce and property settlements? Who decides where the children and dogs go?
Oh, never mind, marriage is private. We can just hash it out between ourselves.

Frank,

Yes the state has an interest in contract law. However, in the case of religion the power of the state to limit the terms of the contract ought to be severely limited. In general no fraud or coercion.

Thus it seems that a man and a man, or a woman and a woman ought to be able to devise a contract suitable to their circumstances unencumbered by state prohibitions other than the limits of fraud and coercion.

After all we allow prenuptials. i.e. modifications of the standard state contract.

Simon:
I generally agree with you that the state has intruded into many areas where they have no business. As to marriage, there is now an effort by gays in California to limit state intrusion into church affairs. This is in reaction to legitimate concerns that the state could mandate them to perform same sex marriages.
Where I disagree with those who want to take the state out of the marriage business, is that first of all it isn't going to happen, and secondly, there are good reasons for it such as enforcement of contract, verbal or otherwise. We can argue about the overreach of government, the labyrinthine family law mess, and all the rest. But IF you are going to have state sanctioned and state performed marriages, then they should apply to same sex couples. Does it make any sense to acknowledge those relationships through cumbersome partnerships, which are marriages in all but name, but then deny those "others" the real thing?

Listening to Rush Limbaugh today, he inadvertently summarized the reasons why conservatives oppose this final step. In the course of a long rant, he let slip out a reference to redefining deviancy as the norm, that we have made deviant behavior no longer a crime, but that does not make it right in his mind. To pass laws that actually support or affirm such behavior is to be a part of tearing down the country.
And I'm sure he feels the same way about legalizing pot.

There's nothing like a reformed whore who preaches celibacy, or an ex-addict on a dry drunk.

It is with interest I watch the spectacle of celebration for a behavior that was punished by Death in all thirteen states when the Nation was founded.

Thomas Jefferson, in an effort to be less severe, authored a Bill to change the punishment from Death to castration for males, and to have the Nose cut off for females.

Now we are pretending they are normal, and that our Nation never regarded them otherwise.

It is now Marriage which is at fault, and therefore we have always been at war with Oceana.

As our social fabric became more complex local and state laws used "marriage" as a legal shortcut for the corporation that is two people coming together and forming a lasting economic, social and (in most cases) religious union.

Marriage--in the sense of a formal union--has always had some sort of religious component (and yes, I'm aware that from the founding of the Catholic Church until sometime in the early part of the last millennium it wasn't an official sacrement, but that sort of pedantry ignores Judaism, a most other religions that all have vaguely similar things to say about marriage), and the law took advantage of this to say "when you register your marriage with us you get this laundry list of legal schtuff that obligates and protects you".

I'm not opposed to the idea of homosexual marriage, but I am REALLY skeptical of the agendas of the people pushing it.

I'll make you a trade--let's get rid of no fault divorce, and let's see how hard these activists keep pushing for it. When dissolving the marriage has to be for cause, and when that brings with it some real penalties then we'll see who really wants the sanctity of marriage, who wants to just play house, and who has another agenda.

In the Soviet Union marriage was a contract with time limits. You could chose the length of the marriage. The longest was 30 years. My parents were married in the Gulag
during WW II and later had a Jewish marriage
ceremony when they were repatriated to Poland after the war.

"It is with interest I watch the spectacle of celebration for a behavior that was punished by Death in all thirteen states when the Nation was founded."

This is my biggest problem with it, from a legal standpoint, as well.

If there are laws passed deciding this, I won't like it, but I'll live with it.

But to just "interpret" the Constitution to "have always really meant" something that it CLEARLY did not mean to the people who wrote is just plain dishonest and authoritarian. That's a systemic problem, much bigger than simply who we allow to enter which kind of legal contract.

Gays wouldn't care about marriage if the state penalties on singles living together weren't so economically punitive. My boyfriend of 30 years cannot collect my pension, my social security or my veterans benefits upon my death; he will also have to pay an enormous estate tax because our state and federal law see him as an unrelated party.
All we ask for is the same legal rights as a married couple has. Apparently equity is a concept that is difficult for many.

1. The argument that the "intent of the framers" is the sole legitimate basis for Constitutional interpretation is a loser for any number of reasons, including the difficulty of establishing the intent of a large group of people scattered over 13 states 225 years ago. Indeed, it is not entirely clear that the Supreme Court's now accepted role as final arbiter in Constitutional matters reflects the intent of the framers.

2. Ann Coulter is no homophobe, certainly not in her personal life, unless you define homophobia as involving certain political or policy positions.

As a "Heinlein Libertarian" I believe the government has no business in marriage, but as long as we have tax codes and benefits that discriminate in favor of or against marriage, we are stuck with the discussion. Survivor benefits in Social Security, Spousal exemptions in the Death Tax, and special treatment of "Family Coverage" in ObummerCare are all examples of things the Gummint has no business being involved in, that gives them (and thus, us)a vested interest in interfering. Even down to the nonsense of student aid eligibility being determined by who is currently married to who rather than the students' actual financial wherewithal.

Civil marriage is a way to designate a non-related person who is next-of-kin, has certain property and power-of-attorney rights, and certain other common-law rights that vary from jurisdiction to jurisdiction. Strikes me as a "law respecting ... religion" to allow Alice & Bob (who are sterile, divorced, and atheistic anyway) to enter into this contract but not Charlie and Daniel, or Eve and Francine.

The county and state governments got into the business of regulating marriage, because they were already obliged to punish adultery, bigamy, breach of promise, and other breaches of the marital contract and public order; and they also had to deal with wills and liability and debts.

Common law marriage was a pain in the butt for local governments in these matters, because you didn't have documentation in case something needing proof or enforcement were to occur.

M. Simon

"And I started thinking. Marriage is a function of the church. It only became a government function in order to prevent whites from marrying blacks."

No but yes in another way.

It started as a tax. You had to pay for license because it cost the government money to record and store the record that you were married. The records were important for hashing out inherences and such.

Then some people in the south used it to discriminate.

Now some other progressives* are trying to use it as a social message (plus wedge issue)...

* keeping in mind progressivism’s racist roots… using public policy to prevent interracial marriages was progressive. Letting people do what they wanted is social Darwinism..

1. The argument that the "intent of the framers" is the sole legitimate basis for Constitutional interpretation is a loser for any number of reasons, including the difficulty of establishing the intent of a large group of people scattered over 13 states 225 years ago. Indeed, it is not entirely clear that the Supreme Court's now accepted role as final arbiter in Constitutional matters reflects the intent of the framers.

TigerHawk · August 17, 2010 11:58 AM

I can address this issue. When The intent of the ratifiers is to be discerned, (who are actually more important than the writers and congress) it is reasonable to conclude that they won't ratify something that conflicts with their own state's laws and constitution.

I've pointed this out with the Second Amendment issues (That it is ridiculous to believe legislators would ratify the modern liberal interpretation when their own state constitutions were far more clear on the subject.) and now I am pointing it out with the Homosexual issue. If every state required the Death Penalty for Homosexual acts, how can it be argued that the legislature's intent is unclear?

Eric Scheie · August 16, 2010 11:35 PM

"Not that anyone will care but unfortunately, the case for gay marriage carries with it an implied recognition of state supremacy in one's personal and religious affairs.)"

Ding ding ding... that is ultimately what is in it for the left (aside from the wedge issue aspect and keeping gays as a voting block with it)...

Just like any discussion of federalism produces the knee jerk left response of 'racist / you really mean states rights'... If you reject the government's supremacy in this area your now a anti gay bigot.

Since I do reject the government's supremacy over religious sacraments, I'd like to pry marriage licenses out of their hand all together. They’ve already abused it too much.

'lanched:

http://pajamasmedia.com/instapundit/104742/

Going back a bit further in history, and to a more general and defensible rationale for the state's interest in recognizing and supporting marriage: A state's prime responsibility is to preserve itself - its borders and its peoples as a whole - and heterosexual union is THE fundamental source for the people to do that with. I.e., the prime secular state interest is to encourage the production of sufficient cannon fodder to protect the state. All other state interests are like discretionary spending - can be done without if you can't afford them. But this prime interest does justify the limiting of the class of 'encouraged' (usually economically or legally benefitted) people to those who are easily and consistently identifiable as being able to produce and raise kids. Blunt, I know - even brutal - but there it is.

When The intent of the ratifiers is to be discerned, (who are actually more important than the writers and congress) it is reasonable to conclude that they won't ratify something that conflicts with their own state's laws and constitution.

Except you have to remember that when the Bill of Rights was ratified, it was understood to not apply to the states. More than one state had an official religion, yet they ratified the First Amendment because it only applied to the Feds.

The county and state governments got into the business of regulating marriage, because they were already obliged to punish adultery, bigamy, breach of promise, and other breaches of the marital contract and public order; and they also had to deal with wills and liability and debts.

I think it was more of a holdover from the fact that governments had always recorded and recognized marriage, because governments and religion were inextricably intertwined in most nations before the formation of the US.

And if marriage was limited to people who can bear children, you might have a point. Since it's not, though, I don't see the compelling government interest here.

Tell me the compelling government interest that permits Alice & Bob, 80 years old atheists, each divorced, to get married, but denies the same to Charlie & Daniel or Eve and Francine?

Now, none of hem can force Father Gregory to perform a ceremony; but the government had better be able to rpovide someone to sign their license.

Don't forget the distinction between licensing and rights:

http://www.classicalvalues.com/archives/2008/11/a_war_over_a_ri.html