July 21, 2015
So, the U.S. Supreme Court has declared gay marriage a constitutional right (something that would disturb the actual writers of the constitution, but I digress). Is there anything left to distinguish “marriage” and “sexual relationship with tax benefits and implicit (though entirely fictional) social approval”?
I do wonder what would happen if states revisited the concept of “covenant marriage“:
Once married, a husband and wife are expected to commit to a lifetime partnership. However,the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: Adultery by the other spouse; commission of a felony by the other spouse and a sentence of imprisonment at hard labor, or death; Abandonment by the other spouse for one year; physical or Sexual Abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.
Keep in mind that absent a legal divorce, remarriage is impossible.
Imagine if a state abandoned its current marriage scheme and replaced it entirely with near-permanent covenant marriages. Imagine if it even treated foreign marriages (entered into in other states) with the same seriousness, meaning that divorces would not be permitted but for one of the causes above. Such a law would have a legitimate interest: social stability and the provision for children. Since gay people are permitted to adopt, the state has a legitimate interest in maintaining and enforcing the stability of any marriage relationship.
Granted, this would raise interesting questions of federalism. But let’s say some maverick state like Texas decided to completely abolish its current marriage scheme, replace it with covenant marriage, outlaw divorce except for certain causes (as described above), and yet make this available to all persons or potential unions (whether gay, straight, or even polyamorous). What would happen? Clearly, many would simply drive across the border to some other state to get a quick divorce. But what if other nearby states then followed suit (just as they did by enacting legislation defining marriage as between one man and one woman)? Spouses desiring quicker, no-fault divorces may have to travel to Nevada or California to get those divorces. But even then, imagine if Texas went a step further and disallowed remarriages in the absence of a showing of fault justifying the divorce of all prior marriages (this would raise constitutional “full faith and credit” objections, but set that aside for the sake of argument). Then some divorcees would have to travel to other states to get second marriage licenses. This could all be gender/orientation-neutral, of course, but a big hassle to those who desire “flexibility” to end their marriage.
If a state went this route, I wonder how many people (gay or straight) would decide to get married at all in such a state. Marriage rates would probably decline (even dramatically) in such states, except among religious communities and the most serious of secular relationships. But, wouldn’t those unions be stronger? And if so, would more potential spouses (particularly women) be inclined to demand covenant marriage from their partners to avail themselves of this stability for themselves and their children?
At the very least, this would be a way for a state to voice some form of dissent to the recent Supreme Court decision in Obergefell v. Hodges. The state would essentially be saying, “ok, Supreme Court, you’ve had your fun, but now we will create a form of marriage even stronger than before, so strong that it would be nearly disadvantageous to go through with it.” Overall, would this be a good thing or a bad thing?
Speaking for myself, a few weeks ago I would have told you that I’d consent to gay marriage if we could take away no-fault divorce (essentially making all marriages covenant marriages). I believe marriages across the nation would be far more strengthened by a sense of permanence than by a sense of “at least we’re a man and a woman.”
June 13, 2013
Just a thought experiment, roll with me…
What if, in the American Civil War era, it was the North that insisted upon permitting slavery whereas the South opposed slavery? So, in that vein, let’s say that the northern states began to seek to impose pro-slavery or slavery-compromising legislation upon the southern states through the federal government and supreme court, and then the southern states seceded from the United States on the grounds that they would not permit the northern states to impose their unjust pro-slavery national laws upon them. The southern states create a confederacy which will protect each state’s ability to outlaw slavery (or not) and no other state will be able to impose legalized slavery upon them.
First question: in this situation, would you prefer that the confederates (southerners) win the civil war rather than the union northerners? In other words, would you root for the pro-slavery north or the anti-slavery south?
Second question: if we took away the issue of slavery altogether, would you prefer confederacy or our current federal government? What’s better, each state left to decide its own fate, or a national government deciding once for all?
Now, in this hypothetical, keep in mind that if you said you prefer a strong federal government, someone listening might call you a “racist” for supporting a form of government that once supported slavery.
Just a thought…
August 20, 2012
According to the U.S. Census bureau, in 1790 the United States had 3.9 million persons in 13 states from Maine to South Carolina. New York City had a population of 33,000.
Today, the nation has 308 million people, and New York City has a population of 8.2 million. In other words, the Mayor of New York answers to more than double the constituents that George Washington did as President of the United States at the time the Constitution was ratified.
A small number of people produced a great document that currently governs a far greater number of people. However, at the time that the Constitution was passed, the government was necessarily closer to its people because each representative had a much smaller constituency to please. Has the nation out-grown the constitution, not in principles but in sheer representative force? No doubt the refrain “I’m going to write a letter to my Congressman” carries even less weight than it used to. Should the states be divided up for federal purposes, so that perhaps even each county receives a senator?
While such a change may sound radical and unfathomable, it might pose a beneficial check to the dual-party system imposed on the nation.
May 7, 2010
A professor in the economics department at George Mason University has assembled a fantastic collection of quotes from central figures in American history regarding individual liberty and limited government. Many of those quotes reflect a skepticism of the character of man. While unregulated man might make evil choices, the governor with power over him is (allegedly) prone to even greater evil choices, and those choices will affect everyone. Here is a sampling of the quotes that reflect this view:
[I]nstituting a Congress with power to do whatever would be for the good of the United States . . . would be also a power to do whatever evil they please.”
— Thomas Jefferson
“All men having power ought to be distrusted to a certain degree.”
— James Madison in The Federalist
“No man is good enough to govern another man without that other’s consent.”
— Abraham Lincoln, October 16, 1854
“We still find the greedy hand of government thrusting itself into every corner and crevice of industry, and grasping at the spoil of the multitude. Invention is continually exercised to furnish new pretenses for revenue and taxation. It watches prosperity as its prey and permits none to escape without a tribute.”
— Thomas Paine
While I don’t share the view that government ought not regulate anything beyond the harm principle (the strict libertarian perspective), I share the view that man is so fallen that absolute power will always corrupt him. Thus, limited government is a necessity for all, and the best way to limit it is to decentralize it as much as possible. The greater the centralization, the greater the eventual evil.
February 22, 2009
Tonight we also witnessed an Academy Award given to the writer of the screenplay Milk. That screenwriter told of how his parents moved him away from a conservative Mormon environment where he could learn to accept “who he is”. While there are plenty of philosophical problems associated with someone claiming “it’s who I am” (about anything), which I won’t go into, I found it interesting that he promised all the homosexuals out there that the marriage license would soon be extended to homosexual “marriages” from a federal level. I’m guessing that the screenwriter is no lawyer, but he may suspect that the U.S. Congress is largely powerless to regulate state marriage laws (or at least it is supposed to be). However, the federal judges, none of whom are elected, have been known to strike down state laws by declaring them unconstitutional, whether or not there is any sound reasoning or any text in the Constitution to support such a decision.
The screenwriter reveals an interesting attitude: we just lost an election, but no matter, we’ll run to the courts to fix it. And if we lose in the state courts, we’ll go to the federal ones. And as soon as we get that precedential decision we’re looking for, it won’t matter what people vote for, because judges (by co-opting the constitution) trump democracy (and perhaps can trump the citizens’ attempt to amend their own constitution).
Of course, setting aside the justice or injustice of the homosexual movement, any democratic process can produce unjust laws. And yes, it would be nice to have all of those unjust laws overturned by some other governmental entity. However, that other body can likewise produce unjust decisions. So, in the end, we must recognize that someone will have the last word, and that person or group may produce unjust laws.
Thus, the question becomes who should make that last and final decision. As to the federal level, should it be the unelected Federal Judiciary or a democratically accountable Congress and President? Of course, the homosexual screenwriter may place tremendous hope in Congress and the President (and that is probably a justified hope), and he may be unaware that the Congress and President are generally not supposed to dictate state laws. Even so, as of now, it would appear that the California state courts will be the next arena for this debate, regardless of the express will of the people in the state of California. And if those judges decide that the people of the state of California cannot amend their own state constitution to reflect their will against homosexual marriage, when can we stop calling ourselves a democracy?