That's a topic I attempted to make some sense of last summer, elaborating on an American Interest suggestion that one term, "marriage" is overworked when applied both to a religious sacrament and to a contractual relationship.  But the public interest might arise in establishing the legal status of children, and that quickly spills over into the Culture Wars.  Consider, as Bruce "Gay Patriot" Carroll notes, what happens if medical science is able to isolate a "gay gene."
I wonder if gay activists realize that their slobbering devotion to pro-abortion political organizations, and the multi-million dollar abortion industry itself, may ultimately lead to the destruction of LGBT babies before they are born within my lifetime. It truly is Sophie’s Choice for the progressive gay activists; thus far, they wave off the question with derision.

In the novels of dystopian futures, there is always a “Benevolent” central authority who decides which humans are allowed to think, thrive or survive at all. Do the progressive LGBT activists want Planned Parenthood to decide which gays are born or destroyed?
Keeping in mind that Planned Parenthood's roots explicitly include a claim of a compelling state interest in reproduction.  Founder Margaret Sanger, in the depths of the Depression, proposed a baby code (this being, after all, the era of expanded federal powers) in which a marriage license does not grant carte blanche to reproduce.
Article 3. A marriage license shall in itself give husband and wife only the right to a common household and not the right to parenthood.
Article 4. No woman shall have the legal right to bear a child, and no man shall have the right to become a father, without a permit for parenthood.
Article 5. Permits for parenthood shall be issued upon application by city, county, or state authorities to married couples, providing they are financially able to support the expected child, have the qualifications needed for proper rearing of the child, have no transmissible diseases, and, on the woman’s part, no medical indication that maternity is likely to result in death or permanent injury to health.
Article 6. No permit for parenthood shall be valid for more than one birth.
I'm not making this up. (And read on: mandatory sterilization of the feeble-minded is "indicated" in order to "protect society as a whole.") Background checks for firearm ownership seem trivial by comparison.  But such was the sentiment of the times.
This is the great day of social planning. We have come to believe in planning the production and distribution of goods. We plan methods of governing cities, states, and the nation. We plan jobs, and leisure-time activities, and vacations. We plan almost everything, big and little, except families. It can scarcely do any harm and it may do a vast amount of good to engage in thoughtful, planning of our population, a population with a still larger percentage of happy families.
On the other hand, where there is "thoughtful planning," there are bright line rules and the possibility of tyranny.

Perhaps, as several libertarian commentators have suggested, the way to end the tussle between the sacred and the secular is to remove the government from the marriage licensing business.  That appears to be the basis of a Tenth Amendment Center argument.  "By removing the state from the equation, no one can force another to accept their marriage, nor can they force another to reject that person’s own beliefs regarding an institution older than government."  With recognition of the possibility of tyranny.
Something that is rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a citizen requires the permission of their government before they can get married. A person cannot drive a vehicle, aside from limited circumstances, without a license. A person cannot practice law without a license, nor can they engage in medical care.

Put another way, marriage is not a right, or a religious institution, but a privilege the state grants us if we meet the conditions put upon us.

Consider this: In the same way a driver can lose their license if they break certain traffic laws, a man or woman, theoretically, could one day find their marriage license revoked for breaking certain “marriage” rules, whether it pertains to child rearing, or their religious and political convictions.
Walter Hudson puts the argument simply.
I don’t need an entire democracy to legitimize my relationship with my wife. Our relationship is ours, recognized by our God. All we require from others is the recognition of our rights as individuals, same as if we were single, same as if we were business partners. In the eyes of the law, all that should properly matter is our consent.
That works well, but for the children.  Thus Shikha Dalmia.
At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage "deed." It won't — and can't — simply accept any marriage performed in any church — or any domestic partnership written by anyone.
Via Newmark's Door, where we read this caution.  "My guideline is that societies should be very careful when 'fixing' long-established, widely-accepted institutions."  All the same, institutions evolve to reduce transaction costs, and unbundling of the sacred from the secular functions might be that evolution in action.  I'm not ready to give up on the evolutionary stability of bourgeois convention.

1 comment:

Dave Tufte said...

The opposite sort of experiment (to the top of your post) is going on in Utah.

It's the policy of the LDS church to encourage gays to enter into heterosexual marriages; and, of course, Mormons encourage fecundity after that. Basically, you can be (mentally) gay, but you can't act on that physically. I think the same thinking applies to any Mormon with LBGTQ leanings.

I have given to calling this the Waldman Test after a friend who pointed it out about 10 years ago. If there is a genetic component to being LBGTQ, then Mormon communities should start showing significantly higher proportions of LBGTQ people a few decades out. We'll see.