That's a topic I've been following for some time, because it lets me get away with post titles like "intercourse becomes clothed with a public interest" but behind the wisecracking, there's a Deep Policy Question.
Doesn't that imply a competence for the state in protecting the interests of children that it has not demonstrated when it comes to providing education, or school lunches, or safe neighborhoods?That appears to be precisely what the Alabama bill, not yet law, envisions. "Civil or religious ceremonies would have no legal effect upon the validity of the marriage. The state would only recognize the legal contract signed by the two parties entering into the marriage." In so doing, the bill would undo the bundling of church and state that has made so much of what ought to be a straightforward contract between consenting adults a frontline of the Culture Wars. "But that turns the civil institution -- as opposed to the religious sacrament -- of marriage into a contractual agreement (with no-fault divorce, it's notarized dating) for the benefit of adults."
Put another way, the culture is doing just fine in protecting children -- in neighborhoods where the adults act responsibly, and not so well -- in neighborhoods where the adults don't. Maybe it's time for the editors at National Review to unbundle government from culture, or Caesar from Christ?
Interesting that Alabama, for so long a punchline to the Coastal Elite, is achieving precisely the kind of unbundling in which two people can register a legal marriage contract, whether the local fundamentalist church, synagogue, or mosque rejects it or the local reform congregation solemnizes it notwithstanding. The Tenth Amendment Center's post intriguingly turns appellate judges into auxiliary bishops.
Removing state meddling in marriage would render void the edicts of federal judges that have overturned state laws defining the institution. The founding generation never envisioned unelected judges issuing ex cathedra pronouncements regarding the definition of social institutions, and the Constitution delegates the federal judiciary no authority to do so.Further, when reproduction no longer is clothed with a public interest, the unbundling of the secular contract from the sacred sacrament becomes a restoration of the status quo that even Stephanie Coontz, with a New York Times imprimatur, doesn't denounce as turning the clock back.
Constitutionally, marriage is an issue left to the state and the people.
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.The Tenth Amendment Center post notes that the power to license is the power to forbid.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
Put another way, under a licensing scheme, marriage is not a right, nor a religious institution, but a privilege granted by the state and limited by its requirements.To an extent, this revocation already exists, in the form of the child protection bureaucracy putting children in protective custody, under guises pertinent to child rearing or to convictions. That might be beyond the capability of governance to fix. Instilling bourgeois habits in young people before they become parents might still be a good idea. Reclaim the culture. Stop enabling the dysfunction.
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.