Wednesday, April 03, 2013

Law, marriage and government interest

The concept of law is based on judgment, much of which is moral judgment -- e.g. moral judgment against murder, assault, theft, slander, pedophilia, bestiality, rape. Americans are fast losing the ability to draw a line of law based on moral judgment, or perhaps have abandoned the basic foundations of that judgment. Laws cannot stand independently of moral foundation. Eventually at stake in the debate about homosexuality and same-sex marriage is the ability to express moral judgment regarding any behavior.

Whether or not one engages the moral debate about homosexuality, does the state have any compelling interest -- for general welfare and common good -- in the contract of marriage? A piece of paper from the court house does not make a marriage moral, but it does make it legally recognized. With good reason, for thousands of years marriage has been understood as a covenant entered by a man and a woman. Men and women are the two halves of a puzzle that uniquely blend into one whole. They are both different and complementary. Mothering and fathering are unique and particular roles, important to the development of children. The proper development of children into good citizens is an interest of the state for its general welfare and common good. (Reversal of some of our inane divorce law would be another step in the right direction.) Traditional marriage "serves the good of children, the good of spouses, and the common good of society."

In the book What is Marriage, authors Girgis, Anderson, and George explain that the traditional view of marriage, a life-long conjugal commitment, is giving way to a "revisionist view". This view "is a vision of marriage as, in essence, a loving emotional bond, one distinguished by its intensity—a bond that needn’t point beyond the partners, in which fidelity is ultimately subject to one’s own desires. In marriage, so understood, partners seek emotional fulfillment, and remain as long as they find it." This revision is not newly formed for the defense of homosexual marriage, but "has informed the marriage policy reforms of the last several decades." It contributes to the decay of traditional marriage. The view is not new. Same-sex marriage is simply the current outcropping of this agenda. It will not be the last.

We ought to obey God rather than men, but I find no reason that we cannot obey God and get a marriage license. Under God, we don't need the state's permission to marry. Under the law, there are multitudes of intertwined legal issues of long historical standing that would be a nightmare if there were "no permission slips for marriage." The best government governs less rather than more. When and where it governs, it should govern with compelling interest for the common good and general welfare of all of its citizens. I believe marriage and its fruits is one of those interests.

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