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Thomas Lucente: Time to divorce marriage from the state

March 31, 2013

Now that the U.S. Supreme Court has heard oral arguments on same-sex marriage, all we can do is wait. The wheels of justice, after all, usually move at a snailís pace.



What is sad, though, is that it has even come to this point.



The idea that we must beg the government for permission to marry, same-sex or otherwise, should be repugnant to every freedom-loving American. So long as people are not hurting anyone, they should be permitted to marry whomever they wish. That includes same-sex marriages, plural marriages, group marriages and any other combination.



If a transsexual wishes to marry a transvestite and throw in a hermaphrodite as a third partner, why should the government object? That is no more the governmentís business than a red-haired man marrying a brunette woman.



There are two points, though, that should be addressed.



First, permitting same-sex couples to marry is one thing. However, the government should not force churches to perform such ceremonies if they do not wish to. That crosses that First Amendment line. If a religious faith is opposed to same-sex marriages, then its facilities and clergy should not be required to perform those marriages. Just as same-sex couples have the right to marry, churches have the right to decide their own rules governing marriage as a religious institution.



That seems self-evident, but it should be made clear anyway.



Second, permitting same-sex marriage in no way leads to bestiality, pedophilia, or, as Michael Reagan even had the audacity to claim, legalized murder. Reagan should know better.



This is a silly argument, to be sure, but one opponents of same-sex marriage seem to be making in abundance.



At the basic level, marriage is simply a contract between two people. This is, of course, talking about a secular marriage. Certainly, to those with a religious bent, marriage is much more. For example, according to the canon law of the Catholic Church, marriage is a ďcovenant (which is a fancy word for contract) by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring.Ē



However, we are not talking about holy matrimony here. We are talking about civil marriage. And in a civil marriage, you are basically entering into a contract. You exchange promises, which is essentially a contract. When it comes time to dissolve the contract, the courts get involved and help the parties wade through the various property issues.



Because of that, people would still not be permitted to marry children (who canít enter into contracts), the dead (who canít enter into contracts), or animals (who canít enter into contracts). As for murder, I have no clue how Reagan reached that conclusion.



It should be pointed out that permitting same-sex marriage is not equivalent to condonation. It is simply recognition that marriage should be beyond the power of the state to control.



This contract view of marriage is how humans in the Western world saw it for centuries. Marriage, throughout most of Western history, was a private affair. Indeed, early marriages occurred when the couple simply said, ďI marry you.Ē Neither priest nor government agent nor witness needed to be present. Often, cohabitation for a period of time was enough to validate the marriage in the community. There was no license from the government or the church. It just happened.



Eventually, the church began recording marriages and requiring a ceremony in the late Middle Ages. In the 17th century, some jurisdictions began issuing marriage licenses (though a form of licensure can be found in Great Britain as early as the 13th century, but that was usually more about public notice than permission), which became widespread about the mid-19th century.



So the tradition of marriage is one absent state control. It is only in later years, with the growth of the administrative state, that marriage became something that required permission from the state.



Itís time we end this recent development and give people the freedom to live, and marry, as they wish.






  1. U.S. Supreme Court


  2. Thomas J. Lucente Jr.


  3. Supreme Court Hears Same Sex Marriage Case- Full Hearing-March 26, 2013


  4. Supreme Court Hears Defense Of Marriage Act Arguments-Full Hearing-March 27, 2013