Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing.”     Ronald Reagan

March 20, 2009

Pre-Law Student Suggests State Of California Divorce Marriage Licensing

by Brad Warbiany

Language matters. When you call a gigantic pork sandwich a “stimulus”, it becomes a very difficult thing to oppose. When your version of “campaign finance reform” is a big slap in the face of free speech and only increases the ability for moneyed interests to protect their incumbent investments, it is still seen by the majority of Americans as a positive “reform”.

Marriage is a religious concept. Contract is a state concept. To give the name “marriage” to what you get from a church and simultaneously define it as a civil contract, you open the door to very bitter disputes. Few but the extreme bigots in society would suggest that gays not be allowed to enter into civil contracts. But as we saw here in California last year, a majority said they shouldn’t get married. I’ve said that we should do away with civil “marriage” entirely, and use a different term to reduce double meaning.

Two students from SoCal agree, and they’ve decided to do something about it:

Ali Shams, a senior at the University of California-San Diego, was watching a soccer game with a bunch of buddies when his phone started ringing Tuesday, and refused to stop.

Surprising even the 22-year-old pre-law student, his personal project during Christmas break — framing a constitutional amendment initiative to replace the word “marriage” with “domestic partnership” under state law — was cleared by Secretary of State Debra Bowen to gather petition signatures for a potential statewide ballot.

Fox News, NBC, The Associated Press and many of the state’s largest newspapers were on the phone wanting to discuss the unusual initiative launched by Shams and his friend Kaelan Housewright, a 21-year-old senior at the California Institute of the Arts. More to the point was Queerty.com, a gay issues blog which marveled: “Straight Dudes File California Gay Marriage Ballot Initiative.”

The measure would overturn Proposition 8′s ban on same-sex marriage, and have California treat all unions — opposite-sex or same-sex — as domestic partnerships. It would also allow churches, synagogues and mosques to decide whom they want to marry in a social, rather than civil, ceremony.

The domestic partnership initiative might be an extreme long shot to pass — or even make it to the ballot. In what may be a first, the warring sides in the Proposition 8 campaign agree on something — they both hate the idea.

That’s always good. When two bitter rivals are presented with a way to stop fighting, they often hate the idea. Perhaps they’ll come around. It’s difficult to accept the idea that this dispute is largely over a single word rather than a much more important concept, but language matters.

What does this accomplish to truly end this dispute?

“We’re not banning marriage. We’re protecting fundamental rights for minorities and protecting the religious definition of marriage for” religious groups, Shams said.

As I’ve said before, those who are truly concerned about the sanctity of marriage should keep it in church, where it belongs. Let the legal system do what it is designed to do, arbitrate and enforce contracts. Once separated, the issue becomes much easier to argue — and you can see the motives of those for and those against much more clearly.

This, of course, doesn’t mean I think this will pass — but I hope it gets discussed enough to open a few minds.

Hat Tip: Co-contributor Doug @ Below The Beltway

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13 Comments

  1. It’s appealing to separate the social and legal aspects of marriage, but this solution still has problems. Normal contracts aren’t expected to be conditional upon the emotions of the parties involved: you can’t break a normal contract just because you don’t like the other party anymore, or because you’ve decided you like another party more. You’re not expected to enter into normal contracts with the intention that they will last your entire life.

    If you really want to get the state out of marriage, creating a new form of state involvement in people’s sexual relationships isn’t the answer. A better (if even more unlikely solution) is to leave people to form normal legal contracts alongside whatever private religious or social partnerships they choose to enter into. So, let your priest bless your marriage, but when it comes to how you share ownership of a home, do it in the same way that you would with a flatmate.

    As for kids, arbitrate disputes over their care by reference to their best interests, not the interests of those who claim ownership of them.

    Comment by mkvf — March 20, 2009 @ 3:06 pm
  2. as an afterthought (and becuase I can’t edit my orginal comment):

    I guess I’m not disagreeing much with your closing paragraphs: I just fail to see the need to even consider a special class of contracts, whatever you call them.

    Comment by mkvf — March 20, 2009 @ 3:09 pm
  3. The “special class of contract” already exists, in the current laws regarding marriage. Simply changing the reference in law from “marriage” to “civil union” accomplishes everything that needs to be done.

    Comment by SRC — March 20, 2009 @ 3:26 pm
  4. This is very much the answer to this issue. I hope the CA Supreme Court does this as part of their decision and save us all a lot of grief…

    Comment by JJ — March 20, 2009 @ 3:31 pm
  5. > Marriage is a religious concept

    Bullshit. If it were, then only religious people would get married.

    Comment by millstone — March 20, 2009 @ 5:55 pm
  6. “Marriage is a religious concept.”

    No it isn’t. Just ask the ancient Romans.

    Sorry Brad, but EPIC FAIL on you for writing that.

    Comment by KipEsquire — March 21, 2009 @ 4:35 am
  7. I think that it’s an amazing idea, and it sounds like an excellent solution to isolate state from church. However, I have three concerns. How will this prevent religious groups from abusing the ballot process, as they have done with prop 8? The ballot process was not designed to take away fundamental rights from minorities!. The second.prop 8 would still hold. This was a very rude amendment that has no business being in the California constitution. The third. the term “domestic partner”. In a civil union, or a marriage, the two contracted individuals do not need to share the same address to be espoused, or married, but a domestic partner would require this sharing of an address.

    One misunderstanding from Mr. Warbiany is the power, and quantity of bigotry. “Few but the extreme bigots in society would suggest that gays not be allowed to enter into civil contract.” I wish this were true, but I believe he is dead wrong. The christianist corporation is a bigot producing, wrench cranking factory, and they make hundreds of millions of dollars doing this. They will not let the business die if they can help it!

    Comment by Flex — March 21, 2009 @ 8:22 am
  8. Whether marriage is seen as a religious concept, an anthropological concept, or a result of evolutionary biology, I agree that it should certainly not be a state concept in anything other than a boilerplate agreement between free people.

    Government should not be in the business of defining or limiting behavior except as it applies to its original charter of protecting life, liberty, and property.

    Comment by Akston — March 21, 2009 @ 11:37 am
  9. gee what a f@@@@@ brilliant concept. like 100,000s of people weren’t identify the exact problem for at least 8 years now.

    Comment by oilnwater — March 21, 2009 @ 6:45 pm
  10. marraige in the eyes of the state is only a matter of taxation and property rights. it was never a matter of legitimacy. the state has no legitimacy in this matter. eliminate federal income tax and any form of inheritance tax and you will cut the head from the snake.

    instead the media makes you want to either hate gays, or love gays. in fact, you shouldn’t give a shit about gays or Eskimos or penguins.

    Comment by oilnwater — March 21, 2009 @ 6:48 pm
  11. oilnwater,

    I agree, but the marriage issue is about more than just taxation.

    Married couples who buy real estate together enjoy a special form of title that makes it impossible for creditors of only one spouse to take the property.

    Married couples enjoy presumptions in the law with respect to inheritance and access to medical records.

    And that’s just the start of it…..

    Comment by Doug Mataconis — March 22, 2009 @ 4:31 am
  12. Kip,

    I know you strongly disagree with what Brad wrote, but, really, what is wrong with the idea of getting government completely out of the marriage business ?

    Comment by Doug Mataconis — March 22, 2009 @ 4:32 am
  13. In the absence of such laws there will continue to be the intrusion of religion into the system of laws. If religion wishes that government stay out of their business, then religion needs to stay out of the business of government.

    While it may be idealistic to have the government “completely out of the business of marriage” this ostensibly accomplishes that. The government would be dealing with civil unions-not marriage. All “marriages” then would become civil unions unless and until they become sanctified by a religious entity. At the same time, there are some churches that ARE celebrating and blessing gay marriages, so then these marriages would, of necessity, have to be recognized as such.

    This law would accomplish the separation of church and government while permitting religion to set it’s own parameters for the definition of marriage, which is by all means its priviledge and prerogative. However, I think the most conservative of those among us will hate this because it removes one more level of social control that they have over everyone.

    Comment by Cranky Yankee — March 23, 2009 @ 9:15 am

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