Archive for April 1st, 2013

So I was driving to work this morning, and I heard an interview with John Fund in which he outlined a proposal to “Get the Government Out of Marriage”.  I listened with some interest, as most of last week, I heard many of my hardcore libertarian friends voicing the same idea.  After a search, I found excerpts from another interview in which he said many of the things I heard him say in this morning’s interview, and I will address many of them point-by-point.

To take marriage, which is a 2,500 year institution, and give it the government Good Housekeeping seal of approval, to grant it legitimacy and a status that it has not enjoyed anywhere until the last few years in any country strikes me as a bit too far,’’ Fund told Newsmax TV’s “The Steve Malzberg Show.’’

Except that it has enjoyed government’s approval and legitimacy for much longer than “a few years”.  While I suspect Mr. Fund was referring to the state’s licensure of marriage, the fact remains that the status of marriage has touched on property law, the status of children, and probate law for hundreds of years.

“Let’s follow what the Founding Fathers did. They separated church and state in order to defuse the conflict. Let’s separate marriage and state. Let’s say the government has contract law. It will enforce the provisions of any contract you sign with your companion.’’

I have a better idea.  Let’s not start with a fundamentally flawed misunderstanding of what the Founding Fathers did, and try to make it a basis for a short-sighted “quick fix”.    First, the Founding Fathers were not afraid of the church (small “c” christianity) or its moral influences.  What they were concerned with was sectarian strife, which had torn Europe asunder on more than one occasion.  (The Federalist 10, 51) They didn’t want to prevent those sects from coming into being, or having individuals believe as they would; instead they were afraid of what would happen to all others if one was able to seize and control the State for its own ends.  It was this fear that motivated them to make sure that religion could never be used to Constitutionally qualify or disqualify a candidate for office. (The Federalist 52, 57, Art VI, U.S. Constitution).  Nor did these Founding Fathers “separate church and state” at the state level, as after the ratification of the Constitution and the Bill of Rights, several states still retained an official state “religion” (sect) for decades.

What is more, as “marriage” as a legal concept had applied to one man and one woman, in part because of the state’s interest in the product of most such unions, i.e.children, the idea of classifying marriage only as a “contract between two people” is remarkably myopic, as the manner in which this “contract” is performed, or not performed, can affect parties who are not parties to the “contract”, and have no standing to sue for enforcement of obligations and responsibilities that society has every expectation and right to impose upon the relationship.  Based on this, Mr. Fund is starting with the wrong concept, and it doesn’t improve as he expounds on it.

“Take as much of it as possible out of the political sphere because . . . if you take the government out of it, it gives the government much less reason and much less cause to go after religions as they’re trying to do with Obamacare saying you have to provide this medical service and this contraceptive service.’’

I understand what he is saying, but I’m not sure why he thinks the example he is using is a good one. If the courts correctly apply the First Amendment, (a difficult proposition to believe in, I admit) then there can only be ONE result in the example Fund uses: The government (and Obamacare) lose. Even so, to use it as an example is comparing apples to oranges. Marriage is not a new institution, nor is it a new government program seeking to sink its tentacles into all avenues of society and life (although one could argue that is what the gays seek with their insistence that the rest of us redefine a legal term for their pleasure). Marriage is intertwined with government because government benefits from the stabilizing influence it has on society.

Fund said that the Supreme Court, which is now mulling whether the issue of gay marriage should be regulated federally or state by state, has already said whatever it decides won’t please everybody.

“The Supreme Court last week told both sides, you know, we’re not going to have a sweeping room that’s going to make either side happy,’’ Fund said.

And if it actually works out that way, I would be pleased, because it would mean that the Court realizes that government does have a dog in this hunt, instead of engaging in the fiction that marriage doesn’t matter.

“We’re going to have a very muddled opinion … That means we’re going to be stuck with about 15 to 20 years of trench warfare on this. And there are a lot of other problems that we, frankly, should deal with and, frankly, deserve more attention than this.’’

I can only conclude that this is another knee-jerk reaction…the kind that appears to make perfect sense right up to the moment you step back and really ponder the implications of what is being said. First, there is a social aspect to this, which leads to a “civil war” of the type he was referring to in the interview this morning. He basically wants to take this out of the field of conflict for the “culture war”, and was actually quite dismissive of the concept of a “culture war” to begin with. I found this disturbing, especially as he drew a parallel to the aftermath of Roe, and the “culture war” that has ensued ever since, largely because he did not seem to grok the fact that some wars are worth fighting, as I’m sure more than 8 million babies would attest to had they not been stripped of their 14th Amendment rights by the judicial equivalent of “Because I said so” in the Roe decision. But even Roe aside, it would be obvious to even Hellen Keller that the skirmishes in the “culture wars”, from Everson to Lemon, and its malformed progeny that society has not been made better by pretending that the secular vision imposed upon this country, largely by the Judiciary, for the last 60+ years is morally neutral or superior to that which it has constantly assailed in that time. Culturally speaking, we have seen the rise of a particular brand of self-centeredness that focuses exclusively on gratification, and provision at the expense of others. It isn’t an accident that culture has coarsened, that intellect and wisdom are in dwindling supply, and so many of our “issues” can be traced back to people thinking and voting with their genitals.

But this, though worthy reason enough, is not the ONLY reason why the “culture war” is worth fighting. Taking government out of marriage would be expensive.

The Federal government confers certain benefits and responsibilities based on marital status, whether it is benefits for dependents, or determining beneficiaries for your Thrift Savings Plan. As such, it has an interest in defining what that relationship is and is not. The alternative is a “take it as you find it” situation with those relationships, which would not only create an enormous expense in having to deal with and determine what is and is not a “marriage”, but would almost certainly, at some point, involve government recognition of some union that would offend and repulse even the staunchest libertarian.

At the state level, the government regulates all kinds of associations and relationships by offering benefits in exchange for its official sanction of these relationships. It does so to create certainty. It does so because there is a perceived benefit to society for doing so, and because it wants to foster certain outcomes, and it incentivizes those outcomes by offering benefits to go with that sanction. The government regulates who may do business as a corporation or a limited liability company or limited partnership. it imposes conditions, and in exchange for that, and annual payment and reporting, it offers the benefit of limited liability for corporate acts. It allows non-profits corporations to exist in order to confer benefits on society that government shouldn’t be performing, or cannot perform in an efficient manner. It even limits marriage based on the perceived value to society, which is why you cannot marry your sister/brother, children, parents, or first cousin. And even today (some might even say ESPECIALLY today) with the expansion of out-of-wedlock births, there is still great benefit to society in marriage (I don’t say “traditional”, because it confers a legitimacy on “gay” marriage that it simply doesn’t deserve). And in matters of state law, marriage impacts questions of parentage, child support, welfare, student aid, estate and probate law, community property, and on and on and on. It affects agency law, secured transactions, property rights, and issues of tort liability. Removing government from marriage means not only the expense of re-writing the law, it means dealing with the cost of determining what to replace it with, and the cost of the uncertainty that comes with the [lengthy] process of making those determinations. This is and should be an important consideration for anyone who is concerned about other, “more important” issues, like the economy, and the cost of government.

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