“Marriage is of religious origin; it should remain there.[...]

“Some faiths accept same-sex relationships and others profoundly object. As a matter of religious freedom, both must be accommodated, but how? Separate state and church.[...]

“Now, of course, the state of California can only decide for itself. But just as California protected the right of those of different races to form a family almost two decades before the U.S. Supreme Court, there is reason to anticipate that the federal government will once again follow California’s lead.

“By not over-reading Prop. 8, and reaffirming the separate roles of state, a result without religious animosity is possible.”

This echoes what marriage privatization advocates have been saying for years – the only real solution to the controversy over same-sex marriage is to get government out of the marriage business. It is not only more equitable, but it also falls in line with the American tradition of separation of church and state. It is the only solution that all sides should be able to agree on.

Thanks to Tony Jones’s blog on Beliefnet, I discovered that Kmiec was even interviewed by Stephen Colbert. It’s a good watch.

1. The “Religious Conservative” Argument
   We can not legalize gay marriage because it would damage the institution of marriage. Marriage should be between one man and one woman – if we let gay people get married, then that legitimizes gay relationships legally, and we don’t want that. It makes it seem like gay relationships are the same as straight relationships, which is absurd.
2. The “Right To Marriage” Argument
   Gays need to be given the same rights as straight people. If straight couples are allowed to marry, then why not gay couples? Is their love any less worthy of recognition? The government needs to give gays the right to marry right now. They are being treated as second-class citizens, which is unacceptable in the “Land of the Free.”

Now, I have sympathies with both of these arguments. As a Christian, I do not believe homosexual relationships are the same as heterosexual relationships. However, as a lover of liberty, I do not believe we should disallow gay people the right to freely associate. I would like to propose a third option.

3. The Marriage Privatization Argument

One of the first places I recall seeing this argument was in an article by David Boaz on Slate. Since then, the torch has been taken up by Wendy McElroy (of iFeminists), Michael Kinsley, Ryan McMaken, Doug Newman, and radio talk show host Larry Elder. I urge you to read their articles, as they are most likely far more eloquent than I. However, I shall do my best.

What we hold is that, essentially, government has no place in marriage in the first place – therefore the entire debate about whether or not to give marriage licenses to gay people is moot. We believe that marriage is a private, personal, and often religious union between human beings – that it is a social state defined by society, as it has been for thousands of years. It is NOT something that government should be able to dictate over at all – just like church attendance, consensual sexual relations, and many other private matters.

A Private Alternative: Marriage Contacts

Marriage, beyond the personal, emotional aspects, is legally and conceptually nothing more than a contract between two people. “I take this man, Joe Schmoe, hereafter known as the Groom…” Even our wedding vows sound like a verbal contractual agreement. Our government has the ability already to oversee and enforce contracts – however, it does not have the ability to deny certain people from entering into a contract:

“No state shall … pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts”

–US Constitution, Article I, Section 10

An argument could be made that, by substituting a license for a contract and granting special immunities and privileges to it, the states are effectively impairing the ability of citizens to create contracts which suit their needs. Currently, this is not of great scope – outside of tax law and certain federal marriage entitlements (like Medicaid coverage and Social Security), any two people (gay or not) can get most of the legal benefits of marriage already. This brings us to another question, though…

Should People be Getting Married for the Money?

One of the big reasons I hear from the pro-gay-marriage side of the debate is that they will miss out on so-called “marriage benefits” in the form of federal entitlements. Many of these are simply benefits that they each would get individually, but hope to get by themselves should, for example, their spouse become ill or die. But the question becomes – should these people really be entitled to further entitlements, merely because they chose to get married? Why are single people denied those same benefits, merely because they chose not to marry someone?

Besides, I thought people wanted to get married for love, not money. If that is not the case, perhaps we should re-evaluate the institution of marriage all together.

Out of the Court, Back in the Steeple

For religious people like myself, marriage licenses should be a truly revolting situation. For a very, very long time, marriage has been a church affair – which is to say, it is a social, community, and religious affair. One did not have to go groveling before Uncle Sam in order to wed one’s beloved – one merely had to go before the local priest or minister and ask for one’s union to be sanctified and recognized. Then government got involved and the whole thing went to pot.

There are certain religious leaders today that are revolting against the imposition of marriage licenses upon them and their flock. Pastor Matt Trewhalla is one such activist, and wrote this list of reasons why Christians should not seek to obtain licenses to marry at all. Personally, I happen to agree with him.

Another very important thing that Pastor Trewhalla points out is the history of marriage licenses themselves. This is something that I find very few people are even aware of, and may be shocked to learn about.

A Brief History of Marriage Licenses in the US

As Pastor Trewhalla mentions, “George Washington was married without a marriage license.” This is true. In fact, before the middle of the nineteenth century, no license was required to marry at all. Then, horror of horrors, some people started wanting to marry interracially! What a concept! Miscegination up until that point had been totally illegal, then some states started to adopt marriage licenses - specifically for interracial couples. Meaning that, basically, anyone could get married… unless you had different skin colors. That, of course, required permission from the state.

The reason any license throughout history has been instituted was so that it could be denied to some people. In the mid-1800s, this happened to be interracial couples. Then, in 1923, the “Uniform Marriage and Marriage License Act” was passed by the federal government – 6 years later, marriage licenses were being distributed in every state to ALL people, not just interracial couples. Marriage had become a government institution.

Let me say that again for clarity. Marriage licenses have only existed on any significant scale since 1929. No one in the US before that was required to have a marriage license in order to practice their fundamental right to marry.

Marriage Licenses are Unnecessary and Harmful

State marriage licenses are a means of depriving citizens of a right we have had for thousands of years. The only benefit they provide is to the government – for the purposes of keeping track of us and keeping certain of us from marrying at all. They are a morally indefensible institution of the State.