It occurs to me that this raises a potential problem for two of the current crop of Republican candidates. Neither Huntsman nor Romney supports same-sex marriage. Both are Mormons. Surely at some point some curious voter will ask one or the other for his view of polygamy. Given that they are trying to get votes from people who regard polygamy as so obviously wicked that the mere possibility of legalizing it is a convincing argument against legalizing same-sex marriage, what are they to say?

It is true that the Church of Latter-Day Saints abandoned polygamy a century or so back. But it is also true that it was founded by polygamists, throughout its early history regarded polygamy as an important part of its religion, and abandoned it only under severe outside pressure, including military occupation by the U.S. army. Can a believing Mormon really hold that polygamy is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that polygamy is evil win the Republican nomination?

I can see his point… But by changing a few words, you can make a completely different point:

It is true that the United States abandoned slavery a century and a half back. But it is also true that it was founded by slaveowners, throughout its early history regarded slavery as an important part of its national economy, and abandoned it only through the bloodiest war in the nation’s history, a war fought between the states for the very continuance of the union. Can someone calling themselves a “Classical Liberal” and claiming to represent the views of the Founding Fathers really hold that slavery is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that slavery is evil win the Republican nomination?

Logically, I think we’re at the same place here (although, again, I consider slavery to be inherently evil but don’t consider polygamy/polyandry to be inherently evil — as long as only occurs with full consent of all parties).

As someone who would call myself a classical liberal, or libertarian, I don’t think there’s any particular difficulty maintaining that slavery is evil while still revering the work that the Founding Fathers did to create America. Slavery is an unfortunate blight on our history. It is an affront to the values affirmed in the Declaration of Independence. Slavery was a failure of the time, and while we can’t erase it from the record, classical liberals point to the outstanding positive contributions that the Founding Fathers made implementing the ideas of Constitutionally-limited government and the rule of law in solid practice. And the very nature of the system they put into place allowed for some of their mistakes such as slavery to be rectified by the 13th Amendment (sadly, it required a war and the deaths of hundreds of thousands of men in addition).

If we wanted to break it down, there are hundreds of things we could force politicians to answer for if we took the worst of their social associations and forced them to answer for it. We don’t ask Catholic candidates whether the history of the Crusades means they’ll engage in wars of religious oppression. We don’t ask Gingrich, a Southerner, whether he plans to re-institute Jim Crow. And we accept that classical liberals can be anti-slavery without hypocrisy. If anything, the problems that Mitt Romney may face is the fact that he follows a minority religion of relatively recent origin, so the folks who believe in long-established fairy tales are already prejudiced against him with distrust. So he may face the question that Friedman brings up, but such questions — contrary to David Friedman’s implication — are unfair.

Politicians have enough problems that we don’t need to invent “gotchas” like these to ensnare them. It may be valid to ask him whether he supported the efforts of his church to spend as much money as it did on the California Prop 8 ballot measure, as it is at least current, but bringing up long-disavowed sins committed by Mormons three generations ago is completely unnecessary.

A stand-up comedian I heard once said that prejudice is simply a sign of laziness, because if you take the time to get to know someone, they’ll give you hundreds of individual reasons to hate them. The same is true of politicians; they all stink, but each has their own distinctly distasteful odor to find offensive.

Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.

Gregory is right: preserving the Bill of Rights ultimately rests with all of us.

Part 1 deals with the philosophical foundations that came out of the Age of Enlightenment.

Part 2 explains the reasoning behind each of the ten amendments we call the Bill of Rights

As the narrator went through each of the amendments, I couldn’t help but think of the many instances where these very rights have been violated and continue to be violated by federal, state, and local governments throughout the country. For those of you who want to really know what we are about and the larger liberty/small government movement is all about, these are the very principles we are trying to restore. These are our guiding principles.

If ever you are perplexed by a position that we write about be it our opposition to the war on (some) drugs, opposition to conscription, support for sound money, support for the right to bear arms, opposition to ObamaCare, opposition to the so-called Patriot Act, etc. , you might find it helpful to refer back to these first principles.

I would like to encourage others to share these videos because I would like to see these videos go viral to remind our friends on the Left, the Right, and the middle about why these rights are so important and worth fighting for.

Related: The Philosophy of Life, Liberty, and Property Explained

In this Daily Show segment below entitled “Extremist Makeover – Homeland Edition” Stewart does something that I’ve seen very few pundits do publicly: admit he was wrong. In observing the overreactions of this mosque controversy in which many on the right want to deny freedom of speech, freedom of religion, and property rights to a religious minority out of fear, Stewart realizes that he too overreacted in the wake of the Columbine Massacre when he and others on the left condemned the NRA for going ahead with their scheduled convention in Denver (near ground zero for this tragedy). From there, Stewart plays excerpts from then NRA President Charlton Heston and admits that Heston was right and he was wrong.

Stewart:

If you replace ‘NRA’ with ‘Muslim community’ and ‘Second Amendment’ with ‘First Amendment’ he [Heston] is still right.

Jon Stewart has earned my respect for his intellectual honesty even as others (*cough* Wayne Allyn Root *cough*) have lost it.

Take, for example, the widely publicized opinion of Abraham Foxman, national director of the Anti-Defamation League. Supporting those relatives of the 9/11 victims who have opposed Cordoba House, he drew a crass analogy with the Final Solution and said that, like Holocaust survivors, “their anguish entitles them to positions that others would categorize as irrational or bigoted.” This cracked tune has been taken up by Newt Gingrich and Sarah Palin, who additionally claim to be ventriloquizing the emotions of millions of Americans who did not suffer bereavement. It has also infected the editorial pages of the normally tougher-minded Weekly Standard, which called on President Obama to denounce the Cordoba House on the grounds that a 3-to-1 majority of Americans allegedly find it “offensive.”

Where to start with this part-pathetic and part-sinister appeal to demagogy? To begin with, it borrows straight from the playbook of Muslim cultural blackmail. Claim that something is “offensive,” and it is as if the assertion itself has automatically become an argument. You are even allowed to admit, as does Foxman, that the ground for taking offense is “irrational and bigoted.” But, hey—why think when you can just feel? The supposed “feelings” of the 9/11 relatives have already deprived us all of the opportunity to see the real-time footage of the attacks—a huge concession to the general dulling of what ought to be a sober and continuous memory of genuine outrage. Now extra privileges have to be awarded to an instant opinion-poll majority. Not only that, the president is urged to use his high office to decide questions of religious architecture!

Nothing could be more foreign to the spirit and letter of the First Amendment or the principle of the “wall of separation.

Although he doesn’t come right out and say it, Hitchens hints that he’s not at all happy about the idea of this mosque being located so close to the site of the September 11th attacks. Unlike Sarah Palin, Newt Gingrich, and all the others who have taken up the anti-mosque banner in this matter, though, Hitchens recognizes demagoguery when he sees it and, for an Englishman, has more respect for our First Amendment than many Americans do.

Hitchens ends up in about the same position that I am in this fight. I don’t necessarily favor the project, but these people own the building, they’ve complied with all applicable laws, and there doesn’t appear to be any legal means remaining to stop them. Those who want to use government force to stop them are nothing more than thieves motivated by religious bigotry rather than financial gain. The rest ? Well, they seem to think that having “feelings” and are “offended” means they have some special right to be heard. It’s really all rather sad and pathetic.

I’ve written before about the questionable libertarian allegiances of Wayne Allyn Root, the LP’s 2008 Vice-President nominee and currently an At-Large member of the Libertarian National Committee. Now, Root is out with a blog post about the so-called “Ground Zero” Mosque that is anything but libertarian in it’s sentiments and it’s conclusions, and it should be of concern to anyone who thinks that Root represents the direction the Libertarian Party should take in the future.

Root starts out with the same sort of milquetoast paeans toward religious liberty and property rights that we saw in his book, but he quickly goes off in a direction that makes it clear that, on this issue, he is more in line with Sarah Palin and Newt Gingrich than any Libertarian (or libertarian):

This proposed building of a mosque on hallowed ground is an ATROSITY towards America. To build a celebration of Islam within steps of 9/11 does nothing to increase religious freedom…it inspires hatred, divides our cultures, and increases the odds of violence and hate crimes. Common sense suggests this mosque, being built in this specific location, is NOT being built as a sign of friendship between Muslims and Americans…but rather as a sign of the lack of respect…a belief in our weakness…and an attempt to embarrass and belittle us. The financial district of Manhattan is not a residential area with a large number of Muslim residents for the mosque to serve. Therefore common sense suggests that the only possible reason to build it there (rather than in Brooklyn or Queens where there are large Muslim populations) is to show Muslim contempt for Americans by building a monument to Islam in the shadow of the site of their greatest triumph over America.

It is an offense to build a mosque in that location- an offense to all Americans (including Muslim Americans), all Christians and Jews, all relatives of 3000 dead heroes at the World Trade Center.

First of all, Root is just completely wrong on the facts here. The Cordoba House isn’t at all what he and the project’s critics have represented it to be:

The building’s planners, the American Society for Muslim Advancement and the Cordoba Initiative, have said it’s modeled on religious and community centers such as the YMCA, and that the 13-story, $100 million building would also include an arts center, gym and a swimming pool, as well as a mosque. It would be two blocks away from Ground Zero.

Two blocks away and nowhere within line of sight of the area where the attacks actually occurred.

The attempt by Root, Palin, Gingrich, and other opponents of this project to call this a “Ground Zero” mosque are therefore a complete misrepresentation of the location of the project. A misrepresentation obviously intended to lead people to think that a mosque is being built on the location of the World Trade Center rather than being constructed inside an already-existing decades old building as part of a larger project that would be open to the public as a whole. For that reason alone, Root’s appeals to emotionalism and the supposed “atrocity” that this project represents should be rejected as silly and, quite frankly, dishonest.

Root goes on:

Yes, private individuals and organizations have the right to build houses of worship with their own funds. But one has to wonder where the money is coming from to build a 15-story building on some of the most expensive real estate in the country. We Americans believe in the separation of Church and State. If it turns out that this project is sponsored by a foreign government — either directly or through a state-sponsored organization that engages in terrorism — than the idea of this being an issue of religious freedom is a sham and an argument can be made that our Constitution would actually prohibit this mosque from being built.

Except, of course, for the fact that there is no evidence that this is the case. More importantly, there is no connection between the organization that wants to establish the center and anyone associated with the September 11th attacks.

In the end, Root falls into the same anti-Muslim hole that Palin, Gingrich, and others have. All he’s really saying is that we can’t let them scary Muslims build what they want to in a building they own. While he doesn’t go as far as Gingrich and Palin in calling for government action to stop the project, he adopts the same attitude of religious intolerance and, for any libertarian, that’s just unacceptable.

Let’s contrast Root’s paean to fear-of-Muslims with something published this past weekend by Libertarian National Committee Interns Marissa Giannotta and Josh Roll:

The attacks on 9/11 and its victims should not be ignored, however, we cannot lay blame on the entire Islamic community for the terrible acts that occurred on that day. The Islamic cultural center would be a great way for others to learn about Islam and ultimately build bridges between the United States and the Muslim World. Islam by principle is not an extremist religion and not all Muslims should be portrayed in such way.

More importantly, those who have ownership of the site should have the freedom and the right to build what they wish. Property rights should be respected as a right for all citizens, not just a few. Our platform clearly states, “The owners of property have the full right to control, use, dispose of, or in any manner enjoy, their property without interference, until and unless the exercise of their control infringes the valid rights of others.” The Islamic cultural center does not infringe on the rights of others.

As Steven Chapman describes in his article at Reason, “Palin is not a slave to intellectual consistency. Change the church to a mosque, and put it a couple of blocks from the site of the World Trade Center, and she suddenly loses all patience with the rights of religious believers.”

Libertarian Party candidate for New York State Governor, Warren Redlich, also weighed in on the issue stating, “…I have asked some people if they would object if it was a synagogue, church, Jewish community center, or YMCA. All of them say that wouldn’t bother them. So the reason for opposing this facility is because it’s associated with the Muslim religion. That violates freedom of religion under the First Amendment.”

As Thomas Knapp notes, this is a litmus test for all libertarians (Big-L, or small-l):

If you don’t support private property rights and freedom of religion, you aren’t a libertarian.

Period.

Cordoba House, the project being fraudulently referred to as a “mosque” by those attempting to prevent its construction, is planned for construction on private property and with private funds.

The opponents of Cordoba House are attempting to stop its construction by persuading a government board to declare the building currenly standing at the project’s prospective location “historic” so that the owners can be forced to “preserve” it and forbidden to demolish it and build a structure more to their liking there.

The opponents of Cordoba House oppose private property rights. Their opposition to private property rights stems from their opposition to freedom of religion. They are, therefore, not libertarians.

That, Mr. Root, is libertarianism. Perhaps you’re in the wrong party.

Update: Jason Pye has weighed in with his own take:

Property rights and religious freedom are among the principles of a free society, basic liberties are supposed to be protected from the mob. To hear of anyone casting them aside is concerning. For a libertarian to do it is a betrayal of these core values that we are supposed to believe in.

Indeed.

Given that, there is a very, very fine line between critiquing the retrograde nature of radical Islam and outright xenophobia. I honestly find it hard to discern this line myself, since I am fully ready to call out efforts by Christians, Muslims or any other group to insert religious dogma into politics. Wherever that line is, it is more than readily apparent that many who are protesting the building of a mosque near Ground Zero in New York have crossed it.

There’s a part of the constitution that I’m especially fond of. It’s called the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “free exercise thereof” doesn’t just mean free exercise of Roman Catholicism, the faith of mosque critic Newt Gingrich, or Lutheranism, the denomination of Michelle Bachmann, another critic. It counts for Muslims, Jews, Christians, Buddhists or Hindus.

As the project has neared breaking ground, opponents and supporters have taken to the streets. “It’s an affront to the freedom that NARAL protects that these Christo-fascists would try to base their hate so close to our headquarters,” said Susan Colona, a NARAL employee. “It’s clear that they’re moving so close in order to threaten and intimidate the workers here at NARAL. It’s chilling, in the wake of the senseless murder of Dr. George Tiller, that they’re willing to escalate their actions.”

Protesters carrying signs with slogans such as “Go Back To Kansas” and “Keep Your God Out Of My Uterus” marched outside the headquarters. Supporters of the church countered nearby with opposing signs, “Abortion Is Murder — An Eye For An Eye” and “We Protect Those Who Can’t Protect Themselves.”

Pro-choice US Representative Donna Edwards (D-MD) sides with NARAL. “The actions of the picketers in support of this church are a clear example of hate speech. We are a country that values freedom of religion, and I don’t believe we can legally stop this congregation from forming, but I am deeply saddened that the church would choose such a site for their home.”

Pastor Elijah Williams, who would be heading the proposed church, doesn’t understand the fight. “While we as a church are generally against the practice of abortion, many within the ELCA are willing to make exceptions for circumstances such as rape and the health of the mother. In fact, Dr. George Tiller was a member of the ELCA, and we have publicly condemned Scott Roeder for his unconscionable actions. We are a peaceful church, and chose the site of our church because we thought it was the best place for our home, not because of its proximity to NARAL.”

Pastor Williams even suggested that the extremist protestors antagonizing NARAL were not from the ELCA, but rather sent by the Westboro Baptist Church, an organization known for sending protestors to funerals of US Servicemen killed in combat.

The fight doesn’t appear to be waning. NARAL has been searching for legal ways to fight the church, including potentially having the entire block declared a historic landmark due to its age. Stephen Simpson, a lawyer who had previously advised the ELCA on other matters, doesn’t see this as cause for hope. “What should have been a very simple process of building a home for a budding congretation is now likely to be derailed. Once national politics and the legal system become involved, this will become a circus. I hope the church and NARAL can come to some agreement to avoid this outcome.”

Given the contention between the parties, though, this appears unlikely at this time.

BOSTON (AP) — A Roman Catholic school in Massachusetts has withdrawn its acceptance of an 8-year-old boy with lesbian parents, saying their relationship was “in discord” with church teachings, according to one of the boys’ mothers.

It’s at least the second time in recent months that students have not been allowed to attend a U.S. Catholic school because of their parents’ sexual orientation, with the other instance occurring in Colorado.

The Massachusetts woman, who spoke on condition of anonymity because of concerns about the effect of publicity on her son, said she planned to send the boy to third grade at St. Paul Elementary School in Hingham in the fall. But she said she learned her son’s acceptance was rescinded during a conference call Monday with Principal Cynthia Duggan and the parish priest, the Rev. James Rafferty.

“I’m accustomed to discrimination, I suppose, at my age and my experience as a gay woman,” the mother said. “But I didn’t expect it against my child.”

Rafferty said her relationship “was in discord with the teachings of the Catholic Church,” which holds marriage is only between a man and woman, the woman said.

She said Duggan told her teachers wouldn’t be prepared to answer questions her son might have because the school’s teachings about marriage conflict with what he sees in his family.

Rafferty and Duggan did not respond to requests for comment.

It’s unfortunately that the Church is choosing to deprive this young boy of the benefits of a Catholic education because of the lifestyle of his parents, but this strikes me as one area where the rights of the Church should trump the rights of the parents, or the child.

In an ideal libertarian world, of course, there would be no laws barring discrimination in private institutions at all. If a business owner wished to refuse service to anyone for any reason. We don’t live in that world, of course, thanks largely to the a history where the power of the state was used to enforce strict racial segregation that was designed to prevent any entire group of people from succeeding economically. That’s no reason, however, to involve the government even more in private decisions like this.

If the Church feels that it would be in appropriate to admit a student with Lesbian parents, it should be free to make that decision.

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don’t physically harm the person or property of a nonconsenting other.

Thus begins a book that everyone interested in politics should read; Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Country by Peter McWilliams.  Published in 1998, it is a damning survey of how the United States had become a state composed of “clergymen with billy-clubs”.  It analyzes the consequences of punishing so-called victimless crimes from numerous viewpoints, demonstrating that regardless of what you think is the most important organizing principle or purpose of society the investigation, prosecution and punishment of these non-crimes is harmful to society.

This remarkable book is now posted online, and if one can bear to wade through the awful website design, one will find lots of thought-provoking worthwhile commentary, analysis, theory and history.

His final chapter, on how to change the system, while consisting mainly of pie-in-the-sky, ineffective suggestions of working within the system, starts of with an extremely good bit of advice that I urge all our readers to try:

The single most effective form of change is one-on-one interaction with the people you come into contact with day-by-day. The next time someone condemns a consensual activity in your presence, you can ask the simple question, “Well, isn’t that their own business?” Asking this, of course, may be like hitting a beehive with a baseball bat, and it may seem—after the commotion (and emotion) has died down—that attitudes have not changed. If, however, a beehive is hit often enough, the bees move somewhere else. Of course, you don’t have to hit the same hive every time. If all the people who agree that the laws against consensual crimes should be repealed post haste would go around whacking (or at least firmly tapping) every beehive that presented itself, the bees would buzz less often.

I highly recommend this book.  Even though I have some pretty fundamental disagreements with some of his proposals, I think that this book is a fine addition to the bookshelf of any advocate of freedom and civilization.

Hat Tip: J.D. Tuccille of Disloyal Opposition.

A United Nations forum on Thursday passed a resolution condemning “defamation of religion” as a human rights violation, despite wide concerns that it could be used to justify curbs on free speech in Muslim countries.

The U.N. Human Rights Council adopted the non-binding text, proposed by Pakistan on behalf of Islamic states, with a vote of 23 states in favor and 11 against, with 13 abstentions.

Western governments and a broad alliance of activist groups have voiced dismay about the religious defamation text, which adds to recent efforts to broaden the concept of human rights to protect communities of believers rather than individuals.

What exactly is defamation of religion? Is criticizing certain Islamic practices such as stoning adulterers defaming Islam? Is criticizing Sharia law because it is a barbaric, seventh century legal code defaming Islam?

Or is flying jetliners into skyscrapers defaming Islam? Maybe the Pakistani government should answer that instead of handing the Taliban parts of their country and demand we shut up.

Of course this is nothing more than an attempt by the nations of the Islamic conference than to further exempt themselves from the conduct of civilized nations, especially on matters of freedom of speech, thought, and coinscience. Under this resolution, just about anything from criticizing an “Islamic government” to demanding human rights for religious minorities and certain groups such as homosexuals as “defaming religion”. This resolution is nothing more than the criminalization of thought.

Another curious thought, what does the Islamic conference in particular and this cabal in general think about anti-Semitism?

Of course there was some opposition to this resolution by more civilized nations.

India and Canada also took to the floor of the Geneva-based Council to raise objections to the OIC text. Both said the text looked too narrowly at the discrimination issue.

“It is individuals who have rights, not religions,” Ottawa’s representative told the body. “Canada believes that to extend (the notion of) defamation beyond its proper scope would jeopardize the fundamental right to freedom of expression, which includes freedom of expression on religious subjects.”

Perhaps Canada’s objections would have a little more merit if Canada wasn’t engaged in its own war on thoughtcrime.

Finally, a simple question of morality. Why does the world take a body seriously that calls itself the “UN Human Rights Council” that has Nigeria as its president and includes such members as Egypt, Russia, Cuba, China, Saudi Arabia, and Pakistan? Isn’t this really letting the fox guard the henhouse?

If these countries won’t protect human rights at home, why would they protect human rights around the world?

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

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

(…)

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

The first problem with this proposal seems to be rather self evident to me. Namely, where in Article I, Section 8 of the Constitution is Congress granted the power to regulate marriage ? Some might argue that Section 5 of the 14th Amendment creates such a power to the extent that marriage is a “privilege or immunity” contemplated by Section 1 of that Amendment, or that depriving homosexuals of the rights and benefits of civil marriage constitutes a deprivation of life, liberty, or property, without due process of law; or that it denies them equal protection of the laws. However, that argument would run head-on into the fact that there’s little evidence that the framers of the 14th Amendment intended it to be such complete a usurpation of state’s rights as this argument would contemplate. Moreover, such an interpretation of the 14th Amendment would effective mean that the 10th Amendment had been repealed by it’s ratification; and there’s no evidence that was the intention back in 1865.

So, at the very least, we’ve got a significant federalism problem that shouldn’t be dismissed.

A second problem with this proposal is that it continues with the idea of creating two separate statuses. What, exactly, would be the difference between marriage and these civil unions ? Unless the differences are in name only, then we’re not talking about real equality. Would heterosexual couples be able to enter into these civil unions instead of marriages ? If not, then you really are creating two different classes of people. And, finally, what would be the rules regarding dissolution of a civil union ? Would it be easier ? Harder ? Would traditional domestic relations law apply ?

If the only difference between “marriage” and “civil union” is the name, then what’s the point of having two different institutions ?

A final problem with this proposal is that it raises what is clearly a straw man in this whole debate. Except in the mind of the truly wacko, the idea that same-sex marriage poses any serious threat to religious liberty. Modern marriage is a civil institution governed by the state, so long as that is the case then the state has no right to discriminate against people when it decides who is and is not entitled to claim the benefits of that relationship. Churches, on the other hand, are free under the First Amendment to confer their religious marriages under any circumstances they deem fit.

The problem, of course, is that marriage today is still a hybrid institution.

Is it a civil relationship governed by the state, or a religious one governed by the laws of whatever deity(ies) you happen to worship, or, is it a combination of both ?

The solution, as I’ve mentioned before, seems rather obvious:

If that’s what you believe a marriage is, the union of a man and woman before God and man, then what does the state have to do with so fundamentally a religious institution ? Why does the state need to recognize it at all and why does it need to grant that religious institution preferntial benefits in the form of tax breaks and a protected legal status that is not available to unmarried persons ?

Kellie and I were married in the Roman Catholic Church, which has requirements for marriage that exceed, and are different from, those of civil marriage. That wedding ceremony is what made the marriage official in the eyes of God, not the little piece of paper we got from Cuyahoga County, Ohio the day before.

Here’s my proposal. Get rid of civil marriage licenses entirely. Let people decide for themselves what they believe about marriage and let them, if they wish solemnize that union in a church of their choice. We are hundreds of years past the day where the state was involved in religious affairs, it doesn’t need to be involved in this matter either.

It’s really not as radical an idea as you might think. Contrary to what some of the “traditional marriage” advocates would have you think, state involvement in marriage is a relatively recent thing historically:

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

That practice carried over to the American colonies and, later, the United States, where marriage licensing laws quickly became a way to prevent socially disapproved inter-racial marriages and to limit the rights of women:

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

So, the idea that the marriage must be something defined by the state isn’t as historically grounded as some would have you think.

And what about the supposed threat to religious liberty if homosexuals were allow to declare themselves married ?

Well, it ain’t there:

[N]obody is saying that your church has to approve or consecrate same-sex unions. Heck, you could have a religion that said people with different hair colors can’t get married if you wanted to, just don’t make it the business of the state to codify your religious prejudices.

Exactly.

Blankehorn and Rauch make a good effort at trying to find some middle ground on this issue. And that alone I take as a sign that the rigid opposition to same-sex unions that we’ve seen in the past is melting away far quicker than anyone anticipated (just look at Utah for more proof of that assertion). As a practical, Constitutional solution to the problem, though, I’m afraid they’ve fallen short.

Originally posted at Below The Beltway