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May 28, 2009

Kmiec and Morrissey on Replacing Government-Recognized Marriage with a Sex-Neutral "Civil License"

I agree with R.S. McCain that this is a bad idea. Doug Kmiec, well-known law professor from the Church of Christ-owned Pepperdine University, is echoing a growing refrain from the more libertarian-minded: get government out of the marriage business. Ed Morrissey is mostly persuaded.

Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago. The advent of no-fault divorce, in which one party can abrogate the marriage contract without penalty or consideration of the other party, has completely destroyed the notion that the government plays a role in protecting “integrity and well-being of the family.” In fact, I’d argue that serial marriers of the kind seen in Hollywood (or in Washington DC) do more to undermine marriage than single-gender unions would ever do.

The state could get out of the marriage business entirely, and have its citizens enter into partnership contracts instead. That might have the salutary effect of putting mechanisms into place for dissolutions that would keep divorces from dragging on through the courts, but also give the state more ability to enforce the terms of the contract than government is willing to do with marriages that lack pre-nuptial agreements, especially on penalties for abrogation. That would also give the courts an opening to finally get rid of “palimony”, that noxious avenue where the courts have to make determinations whether contractual relations exist between people who neither execute a contract or take wedding vows.

Look, you can't have it both ways. Either marriage is important enough for society--most clearly represented by its laws--to encourage. Or it's not. Taking away government recognition of marriage as it has been understood to operate for some time now can only ever be recognized as a retreat, a diminution in the status of marriage in the United States.

I firmly support same-sex marrige (OT: since when does Ed Morrissey use the term "gender", anyways?). But that support is based not on the idea that marriage is so wounded that it might as well be disolved in the public sphere, but rather because it is something special to be preserved and encouraged. Many in comments here have described in exhausting detail the benefits of marriage, not least of which are the stabilizing effect marriage has on relationships between adults and their children. I would like to see gay people as a part of that.

And this isn't a trivial change being suggested. No one should be under any illusion after the past eight years of gay marriage litigation and amendment: words matter. If the term "marriage" really means so little that it can be replaced with a "civil license" available to all (gay or straight), there would have been nothing like the fight we've seen or the backlash against activists courts.

Incidentally, there is a ballot petition circulating presently in California to replace all instances of the term "marriage" in law with the term "civil union" and to make such civil unions available regardless of the sex of the parties. (Contrary to popular myth, California does not have civil unions at present; it has "domestic partnerships.") The most common refrain against the petition: "We told you they were going to destroy marriage!" According to Kmiec and Morrissey, we must destroy this villiage to save it.

Update: I have been told that gay people cannot have children. That is one of the dumber things I've heard today. There are thousands of committed, long-term gay couples raising children in the United States. Those children are every bit in need of the same legal protections and status as the children of married straight couples. Think of the children!

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posted by Gabriel Malor at 11:45 AM

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