Separation of marriage and state

I love LucyJuly 1, 2013

By Steven Greenhut

SACRAMENTO — As a kid, I remember watching a rerun of the 1952 “I Love Lucy Show” episode in which Lucy finds her marriage license while cleaning out a closet. She discovers, to her horror, a typo that refers to husband Ricky’s last name as Bacardi, rather than Ricardo, which causes her to question the legality of her marriage.

The ensuing hijinks are the makings of sitcom legend. I’ve thought about that episode in the years in which the contentious battle over gay marriage has unfolded, as it touches on a key part of the public-policy question embodied in the Supreme Court’s two big decisions last week. How important is the approval of the state — epitomized by the marriage license — in sanctioning a marriage?

In 2013, rather than the 1950s, a technical error on a marriage certificate wouldn’t cause anyone consternation. But let’s say, for some reason or another, the government invalidated my marriage. Would it matter?

Not really. Marriage is primarily a pact between two people and, in the view of many, a sacrament of the church. The state merely recognizes this contract. If, say, a totalitarian government (think the Khmer Rouge or others like them that have meddled in such things) dissolved my marriage, my wife and I would still be married. The state could make our lives miserable, but it couldn’t end our marriage.

Yet that point seems lost these days. The public battles involve two sides who see the government as the means to legitimize their viewpoints. One side says gay marriage is wrong, and the other says that it is the same as any other marriage. The two sides will never see eye-to-eye.

Government ‘benefits’

The governmental “benefits” at the heart of many of the gay-marriage battles are mostly rhetorical window dressing. The state shouldn’t be handing out many privileges or payments, and to whatever degree issues involving hospital visitation and inheritances are an issue, their terms and conditions can easily be worked out without a cultural war over the meaning of “marriage.”

Unfortunately, the court’s meddling has ensured that such a battle will keep going.

I’m not unsympathetic to the high court’s 5-4 decision to overturn part of the 1996 Defense of Marriage Act, specifically designed to deny federal government benefits to same-sex couples. If the government gives out stuff, it’s reasonable to insist that it give it out on the most fair-minded basis.

The court majority’s rhetoric reflects its desire to take a noble stand in this cultural debate. The court’s dissenters were right that the majority opinion was overheated. But at least the decision made some legal sense.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote for the majority.

By contrast, the court’s decision (actually, a nondecision) on California’s Proposition 8 seemed lifted out of “Alice in Wonderland.” In 2008, voters approved this constitutional ban on gay marriage. Jerry Brown, then as attorney general and now as governor, opposed it, so he refused to defend it against court challenges.


The Supremes refused to rule on the merits of the statute because its defenders didn’t have “standing.” Only the state government apparently had such standing — but that government refused to do its duty.

As National Review’s Hadley Arkes put it, “If the state has a Democratic governor … he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution.”

The meaning is even broader and more disturbing than that. Top officials of all parties now have de facto veto power over all voter initiatives. They simply need not defend in court any initiative they don’t like, and there is no one else the high court will allow to defend it. That’s an anti-democratic precedent.

There’s no doubt the courts, legislatures and public opinion are moving in favor of gay marriage. Time magazine was right to declare this “one of the fastest civil rights shifts in the nation’s history.” The culture has shifted. That part doesn’t bother me. I have no problem with gay people getting married. But it disturbs me when the battles are fought in the political system rather than in the cultural arena. Both sides are responsible for the over-politicization of this personal and cultural matter.


The best solution always has been the separation of marriage and state. If my priest decides to marry gay people, then my fellow parishioners would have every right to be upset about that, based on their cultural traditions and understanding of Scripture. If your pastor wants to marry gay people, then it’s none of my business. The terms of marriage should be decided by religious and other private organizations, and the state shouldn’t intervene short of having a compelling reason (i.e., marriage by force or with children).

Liberals were more open to this “separation” idea back when conservative profamily types were ascendant. Now, some conservatives understand its merits as a more liberal view is ascendant. Conservatives should have listened when they had some bargaining power, but everyone wants to impose their values on others by using government.

Government neutrality — or the closest we can get to it — is the best way to ensure fairness and social peace on this and most other social issues.

Marriage is too important an institution to be dependent on the whims of the state. Do we really care if the state validates our marriage licenses?

Steven Greenhut is vice president of journalism for the Franklin Center for Government and Public Integrity. Write to him at [email protected]



Write a comment
  1. Hondo
    Hondo 1 July, 2013, 08:27

    This decision by the Supreme’s give Jerry Clown the legal right to ignore Prop 13. This ruling invalidates the 10th amendment. This creates judicial chaos. Any gov or state attorney general can ignore any law. Is there any difference from a law passed by the legislature or my the citizens voting? If only the governor and the attorney generals across this country have ‘standing’, then we have a dictatorships.
    This is insane.

    Reply this comment
  2. SeeSaw
    SeeSaw 1 July, 2013, 10:57

    Imagine the chaos of having, respective, marriages ruled by religious institutions only, and the state having no legal part in those marriages–crazy! Marriage is a legal contract, and each should be guided by the legal tenants of the state/country in which the couple resides–the status quo, thank god. Each couple is free to sanctify their union within their chosen religion with whatever type of religious ceremony/practice is used.

    Reply this comment
  3. Sean Morham SIlver
    Sean Morham SIlver 1 July, 2013, 12:41

    Exactly, me and my horse, SIlver, just wed. What a country.

    Reply this comment
  4. SeeSaw
    SeeSaw 1 July, 2013, 14:40

    Utter nonsense, Sean!

    Reply this comment
  5. Steve Mehlman
    Steve Mehlman 1 July, 2013, 16:51

    Should have been a jackass, Sean. Would have been a much better match.

    Perhaps you should move to a country that has more “respect” for religion. Iran would be a good start.

    Reply this comment
  6. Queeg
    Queeg 1 July, 2013, 17:40

    Don’t sweat it….divorces will skyrocket past the usual 50%….the modernism proponents face massive relationship nightmares! Where do you fit….nowhere…stay out of others’ affairs….let them sort out the agonies of what they whimsically wrought!

    Reply this comment
  7. Sean Morham SIlver
    Sean Morham SIlver 1 July, 2013, 20:09

    The same narrow minded comments were made about same sex intimacy, Pandora’s box has been opened, Silver and myself say watch what transpires, hooray for trams species alliances. What happens in our stable is our business. Stay out.

    Reply this comment
  8. Rex the Wonderdog!
    Rex the Wonderdog! 2 July, 2013, 12:14

    In 2013, rather than the 1950s, a technical error on a marriage certificate wouldn’t cause anyone consternation. But let’s say, for some reason or another, the government invalidated my marriage. Would it matter? Not really.
    It makes a huge difference on a myriad of issues, including taxes, pension benefits, healthcare benefits and many others

    If gay people want to marry more power to them, it has ZERO effect on me, my life (or anyone else’s), so leave it alone

    Reply this comment
  9. Lot's wife
    Lot's wife 5 July, 2013, 08:49

    Get ready for “climate change.”

    Thou shalt not lie with mankind, as with womankind: it is abomination. 23Neither shalt thou lie with any beast to defile thyself therewith: neither shall any woman stand before a beast to lie down thereto: it is confusion.

    24Defile not ye yourselves in any of these things: for in all these the nations are defiled which I cast out before you: 25And the land is defiled: therefore I do visit the iniquity thereof upon it, and the land itself vomiteth out her inhabitants. 26Ye shall therefore keep my statutes and my judgments, and shall not commit any of these abominations; neither any of your own nation, nor any stranger that sojourneth among you: 27(For all these abominations have the men of the land done, which were before you, and the land is defiled;) 28That the land spue not you out also, when ye defile it, as it spued out the nations that were before you. 29For whosoever shall commit any of these abominations, even the souls that commit them shall be cut off from among their people. Lev:18

    Reply this comment

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