CAMPOS: Legal marriage obsolete

By Paul Campos, Rocky Mountain News (Contact)

Published July 2, 2008 at 12:05 a.m.

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July 2, 2008

5:08 a.m.

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roger44 writes:

I agree, take the state out of the marriage business and let the church do it. If the church refuses to marry gays, let them sue the church. Eliminate alimony, if that woman is too lazy to work, too bad. Smacks of prostitution anyway, only not paid up front.
July 2, 2008

6:03 a.m.

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LetsThink writes:

Does anyone have any idea what Mr Compos is saying????

He is a very intelligent man, and I know he is a liberal.....but possibly he drank too much coolade?

We all know that the purpose of government is to encourage behavior that is constructive to society, and discourage behavior that is detrimental.

And we also know that man, left to himself, chooses to indulge in increasingly immoral behavior. That is clearly explained by God in the Bible.

And the hundreds of thousands of laws created by government are an effort to curb man's decadent behavior.

Now.....back to the need to have a government defined institution of MARRIAGE, that is truly constructive to society for many generations that will follow.

Wouldn't it be smarter to listen to God's directions (the creator of the universe; including us humans), rather than to cave into the 'reasoning' of lustful humans when we consider this critical decision?
July 2, 2008

6:18 a.m.

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Mike_In_Hartsel writes:

Yikes. You all miss the point. Marriage began as a political union. Ruling families used it to bind offspring together to protect property, forge political alliances, and to determine heirs. The lower classes didn't have formal marriages until before the Middle Ages and that was done for much the same purposes. The churches got involved because it was a way to control the masses as well as exert influence upon the royals who ruled.

Campos should be the ruler of his "new republic" and call it "Whackistan".
July 2, 2008

7:10 a.m.

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VVVV writes:

"We all know that the purpose of government is to encourage behavior that is constructive to society, and discourage behavior that is detrimental."

Holy crap. When did they knock me out and ship me to China? I never felt a thing.

I thought the purpose of government was to "Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s". AKA the bible's own separation of Church and State, or what I equate to "The right to swing my fist ends where the other man's nose begins."

There is no victimhood caused by watching someone else willingly do what you detest, when you have the equal right to look away. Freedom of behavior is exactly what the founding fathers were trying to protect.
July 2, 2008

7:13 a.m.

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Miseslover writes:

Mike_In_Hartsel you actually further Campos' point well---even if you skip over a huge chunk of history in doing so. In the Judeo-Christian world anyway, marriage was in the eyes of God and King be damned (for a good part of that there was not king).
However, it has been used as a political bludgeon for many-a-year and Campos is correct, it should not be so.

The only problem is in such a godless society, where the STATE is soooo much more important than our Creator, the whole concept of marriage would probably dissapear in about fifty years.

And if you agree with Campos that it is an anachronism, then wait around for the next fifty years and watch our society crumble into dust.
July 2, 2008

8:19 a.m.

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BJG writes:

I believe we should follow the French model of "marriage." If two people wish to marry, they need to first have a civil ceremony, then if they wish to have a religious ceremony they can do so later. If they do not have the civil service they are not considered married by France.
Marriage is a "civil contract" between the two parties, not a religious event. Why else would you have to go to a public office and pay for a license to proceed. And then have a court abolish the contract if you wish to get divorced. As far as I can see, religion has nothing to do with marriage.
July 2, 2008

8:26 a.m.

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OneCreek writes:

Given the current state of "AFFAIRS", Campos suggestion has merit. "AFFAIRS" include the current upside-down legal aspects, not to mention the disgustingly and all to commonplace unmentionable. Current estimates indicate that 30% of the "children" men are raising and presumed to be their offspring, aren't. Then we have to deal with this pathetic circus act from Craig and Vitter, having to stomach the rank hypocrisy of the two amoral Amendment "Propositioners". How much lower can we sink?

Besides, the biggest threats to "marriage" have nothing to do with the idiotic notion of "Gay Marriage". Rather, the threats are adultery and "serial monogamy", notably that practiced by right-wing moral icons such as the thrice-married, formerly(?) drug addicted Rush Limbaugh and his now libertarian pal Bob Barr. And let us not forget those acts practiced by another shining light of adulterous and licentious behavior, the quite married but big into extra-marital sex, Bill O'Reilly. Why these creatures have an audience and support from the so-called "Moral Majority" is beyond me. Tune in on your A.M. Dial!

Dump the whole mess. If the arrangement is between God and the man and the woman, fine. Let it be so. Get the STATE the hell out of it.
July 2, 2008

8:28 a.m.

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El_Guapo writes:

Getting rid of marriage is definitely a good idea.

Women should be free to have sex with whomever they want, make a unilateral decision to keep or not keep any resulting fetuses, and unilaterally support any children they decide to keep.

Men should be free to have sex with whomever they want and have no obligation to support any resulting children. After all, women, not men, make the choice whether a pregnancy continues to term. Because men have no choice, they should have no responsibility.

Sex, as we all know, is only about pleasure, not procreation.

Sounds like paradise, doesn't it? Women get the choices and the children. Men get lots of free sex without worrying about the consequences.

Marriage makes women subservient to men. Modern divorce makes men subservient to women. The solution is to liberate everyone. No marriage. No divorce. Just freedom and justice for all.
July 2, 2008

9:17 a.m.

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Ted_in_Vegas writes:

ahh, dummy, Marriage is supposed to be contract between a man and woman. That's the point.

Campos would have us kill marriage and then institute a relationship contract for those who want to have that committed relationship. THAT'S WHAT MARRIAGE IS SUPPOSED TO BE!

You know, it's a sad thing that for the previous 230-odd years, it was understood that church and state DO intersect and the American view of marriage is good proof of that. But now, mindless "progressives" like Campos want to end the structures that made America great. Why? Because greatness involves submission to God and His principles.
July 2, 2008

9:22 a.m.

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Bagel writes:

Church and state DO intersect? How many of the ten commandments translate into law?
July 2, 2008

9:22 a.m.

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Cowboy63 writes:

We needs to get rid of "mutual recognition" nonsense at the State level.

Let each state decide for themselves. If you want to have a gay marriage in California, fine; then stay in California to stay married.

Individual States should not have to recognize another state's folly.
July 2, 2008

10 a.m.

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ghoax writes:

face it, it's over. Gays won, they'll use California's ruling to sue their way into marriage in all 50 states. They've successfully sued and legislated their way into having dissent of their lifestyle criminalized and they've won the battle to teach your children that their religious beliefs are archaic and for the feeble and intellectually challenged. The only question now is where to find lawyers that can defend you if you're not gay and run into any of the hundreds of legal challenges you'll be faced with. It's yet another step towards the Marxist utopia the that so many dream of. Abolish the family, strip property rights (environmentalists) Abolish Religion...Abolish captialism and let the intellectually superior rule...anyone else see this?
July 2, 2008

10:10 a.m.

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Jimminy writes:

As might be expected,Campos tells us again what Leftists want:control over every aspect of life.As regards marriage,he implies that the prime beneficiary of the marital contract is tha adults.Wrong,wrong,wrong.Marriage,or more accurately,monogamous pair-bonding,is a reproductive strategy evolved over millions of years,whose aim is to provide the best possible environment for the next generation as it grows to maturity.A legal contract between the biological parents of a child entered into before any of the children are born implements that strategy better than other paradigm ever put forth.It has very little to do with the direct benefits to adults,which are granted by society to assist parents in their job.Those benefits are most specifically NOT intended as a tax break for the pathologies suffered by homosexuals.
What Campos is telling us is essentially that we must trash the literal wisdom of geological ages in favor of pop sociology that over the short term of its existence has shown only that it does not work.It bears repeating that Attorney General Suthers told us in March of this year that seven out of ten Colorado prison inmates have never lived with their natural father.
July 2, 2008

10:19 a.m.

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Ted_in_Vegas writes:

Yes, Bagel, christianity and the US governments have long been intertwined. How else do you explain the once-numerous LAWS against blasphemy of Jesus Christ? Which were upheld in the Supreme Court!
July 2, 2008

10:31 a.m.

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KelcyCo writes:

Personally I have long believed in what Campos says in this commentary. The fact that marriages fail so frequently and that the children generally suffer for it materially reinforces the notion that the whole system needs to be fixed. For the person denigrating women and alimony. Ha. It is child support that should be the focus and in general I've noticed it is never sufficient and the excuse given for such low amounts are "well I have remarried and have new children who deserve my money more." Uh-huh. When he remarried he should have realized he didn't get to lose the first set just because he found a new wife. If he couldn't afford more children then he (or she) shouldn't have had them.

I feel that when a couple divorce that an account system should be set up to figure the true cost of said children and that the costs should be split 50-50. If that means the non-custodial parent has to pay a ton of money then fine, they better get a second job to afford it if necessary. The children shouldn't have to pay for the divorce by living in a lower standard of living than when the parents were together and neither should society as a whole have to pay via welfare or subsidized housing or anything else. This whole thing should be set up in a contract before the marriage just as C.S. Lewis and now Campos suggests. As a society we do a heck of a better job enforcing contracts then we do divorce decrees.
July 2, 2008

10:40 a.m.

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Conservativeslayer writes:

Lets Think, here's a suggestion. You are entitled to your religious beliefs, but stop trying to force them on the rest of us. I don't share your beliefs, which is my right. If you want to live in a theocracy, I suggest you move to Saudi Arabia. Only thing, it's not the kind of theocracy you'll like. However I think it would be good for you, so you can see the danger of combining church and state.
July 2, 2008

11:59 a.m.

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Ted_in_Vegas writes:

Conservative"slayer": Why do you keep trying to change and kill what is/was a Christian America? Why are you trying to force an atheistic/agnostic country down our throats?

It is my right (Freedom of speech, petition government, etc.) to proclaim the Gospel of Jesus Christ and His doctrine. Why do you want to kill my right and freedom to do so?

The history of this country is a Christian history, not agnostic, atheist, mormon, muslim or buddhist - Christian. It is who we are and who we were. Quit trying to change that.

As for the common failures of marriages, I'll point out that divorce, cheating and other immorality in general has increased as we've wondered from God's principles for good life. That's what happens when we stray from the principles of God, our lives and society turn sour.
July 2, 2008

12:21 p.m.

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PhilM writes:

Marriage is and should be a religious right taht follows the doctrine of the faith the performs the right. ALL non-religious unions are contracts and agrrements between two people who have agreed to share mutual rights and responsibilities.

Simply, a state only hase the right to grant legal secular partnerships between to consenting adults. These partnerships are enforcable and undoable under the law.

Religious marriage rights are outside the pervue of governemnt. For instance, the state can not disolve a Catholic marriage only a church tribunal can nulify it. Technically, once married in the church, you remain married until death without a propper disolution. I believe the same holds tru in other faiths.

This is the basis of why the question of gays being "married" come full circle. If California wants to recognize a legal partnership, they can. That's secular. But they are not married in the sight of (most) religious beleifs and never will.
July 2, 2008

12:56 p.m.

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Bagel writes:

Ted, please find me a reference in one of our founding documents to Christ (or any of its derivative words), Yahweh, Abraham, or any other word that would distinguish this country as a christian nation.

God and Creator do not make that distinction.
July 2, 2008

1:03 p.m.

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Bagel writes:

I can't find any reference of the US supreme court upholding blasphemy laws. I can find several of state courts doing so. Can you post a link?
July 2, 2008

2:01 p.m.

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Ted_in_Vegas writes:

Bagel: Have you ever read the Declaration of Independence - one of our founding docs?
July 2, 2008

2:17 p.m.

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Ted_in_Vegas writes:

However, upon further review, I must acknowledge that those supreme court decisions weren't from the US Supreme Court but in several of the state Supreme Courts.

Of course, a matter like this was not likely to come up before the US Supreme Court prior to the adoption of the 14th Amendment so that is best guiding legal authority available at that time.
July 2, 2008

3:06 p.m.

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Bagel writes:

Dear lord, have you read it? Please answer my question. Where in the declaration of independence does it mention Christ?

It mentions God, creator, nature's god, nature's creator. NOWHERE does it make any reference whatsoever to christianity. So how about you tone down your misplaced arrogance?
July 2, 2008

3:12 p.m.

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rjnova writes:

Campos is back on track with his liberal thought if there is any seriousness to his ramblings here. I suspect this is the deep analytical thinking though that comes out of his classes at Boulder. I do not care to take the time to give his column any deeper analysis. It deserves as much thought as the
hypocritical legislation Craig and Vitter propose.

El_Guapo makes a fine analysis of where we go from El Campos puerile proposal. The state of marriage could do well without the state for sure and left to the church’s purview. An example of his New Age thinking. Yet sustaining marriage today has enough problems without his suggestions for complete destruction. Many men, and I use that term loosely with Campos, are all for free love, until their mother or sister’s name comes into the topic.

There is however a much more serious matter at stake here than the human foibles of marriage and resultant divorce, and that is where children are concerned. They seem to receive little enough consideration in settlement of the matter at best. Campos treats the matter lightly whereas El_Guapo puts it succinctly in his reply. The respondent and the perfesser should be reversed here considering which has the more scholarly saga. By Campos’ rationale the solution should be to abort them and eliminate the problem altogether. And here is to abortion because Campos is the best reason I can think of to keep abortion legal.
July 2, 2008

4:02 p.m.

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peterpi writes:

Looks like a lot of people completely missed Paul Campos' point. He's basicly saying "marriage" is a religious institution. He creates a civil model that relied on contract law. I agree with an earlier poster. We should follow the French model. After a certain date, the government issues civil unions, which are contracts enforceable by law. Marriage would happen only in the church, synagogue, mosque, ashram, kiva, hogan, etc., of your choice. The two would be separate institutions. Religious institutions could not create or dissolve civil unions. Government couldn't create or dissolve marriages.
If your institution doesn't like the idea of two men or women getting married, fine. But the government couldn't discriminate on that basis alone.
July 2, 2008

5:24 p.m.

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Ted_in_Vegas writes:

OK Bagel, almost every signer of the Declaration of Independence was either in the clergy (ie. Rev. John Witherspoon) or a deacon or alderman or whatever of their CHRISTIAN church. Just WHO do you think they were referring to?

Marriage, the legal history of marriage in nearly every culture, is and has been both a religious, in almost every religion, and a state affair and has been for centuries if not millenia.
July 2, 2008

6:02 p.m.

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Bagel writes:

I think you've just softened your position. Do you think there's a reason all these pro-Christian signers chose not to put anything at all into the founding documents that would identify a specific church? It's because they didn't think it was a good idea!!!

Also, some of the important founding fathers were noted deists, which is where the terminology "nature's creator" came from. Thomas Jefferson specifially was critial of the supernatural aspects of Christianity.
July 2, 2008

6:24 p.m.

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me2 writes:

Some of you folks need a college level course in the history or marriage, around the world, and the history of the ever changing family form.

We don`t know for sure that there is a God/Goddess so we can not say for certain that marriage came from He/She. We know people exist so I assume we invented marriage. That being the most logical case, we can also change its form and function as we see fit.
July 2, 2008

7:50 p.m.

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peterpi writes:

There you go again, me2, being logical.
Jimminy, marriage is not millions of years old. Marriage is thousands of years old, or tens of thousands if you include rites practiced by the nomadic tribes humanity was made up of before the invention of agriculture. The current Western form is only centuries old. What humans create, humans can change. Witness the change in status of women in marriages in the last few decades. If you're thinking of the animal kingdom, it turns out that very few species practice permanent monogamy. Most either aren't monogamous or practice serial monogamy.
July 3, 2008

6:22 a.m.

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malis writes:

Poor Ted_in_Vegas. Made it to adulthood (I assume) yet retains such willful ignorance. This is going to make Ted’s head hurt, but let’s take a look at a few actual facts.

Start with Thomas Jefferson’s famous Letter to the Danbury Baptists, quoting Jefferson’s words specifically referencing the Constitution:

"...that act of the whole American people which declared
that their legislature should "make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,"
thus building a wall of separation between Church & State."

Some people argue the 'wall of separation' was only Jefferson's opinion of what he favored, but not a part of the Constitution. But read that quote again...it's obvious that Jefferson, reflecting the common knowledge of educated people of his era, was simply observing the wall of separation was the purposeful and intended result of the First Amendment’s Establishment Clause—and that’s why government in America today may neither ‘respect’ (meaning ‘aid’) nor ‘prohibit’ religion.

This country was founded by people of various and diverse beliefs, from near-atheistic deism (Jefferson) to modified Congregationalism (Adams), to ministers of various religions (Roger Williams, John Witherspoon etc.), to cheerful optimism and unspecified trust in a kindly Deity (Franklin, and he’s my favorite because he has so many quotes both supporting and denying religion—no ‘foolish consistency’ for him!), etc., etc., etc. Of course they reflected the common religious understandings of their time, but read some of the history of the drafting of the Constitution—there is no controversy at all that the goal of the Founders was to entirely eliminate the influence of religion from government (lessons-learned from the State Churches of Europe). Note the many proposals to insert references to God, Jesus, and even "Divine Providence"—all were voted down by these wise men, these, undoubtedly, Men of God.

After the sheer audacity of conceiving a government formed by the common agreement of "We the People" rather than by the whims of Gods or Kings (or worst of all, the Divine Right of Kings), the glory of the Constitution is the First Amendment and its 'Five Freedoms' (quick, who can recall all five? let's see, Speech, Press, Religion, Assembly and Petition for Redress of Grievances (everyone forgets that last one)).

The most unique, original, and yes, audacious idea in our country’s Constitution is freedom both of and from religion, enforced by the wall of separation enacted by the Establishment Clause.
July 3, 2008

8:02 a.m.

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El_Guapo writes:

rjnova--Glad you got my point.

I should also point that if marriage is abolished, so is divorce, which means a lot of divorce lawyers would have to find honest work. That should make Campos unpopular among his colleagues.

Campos needs to clarify what he means here. At times he appears to want to abolish marriage; at times he appears to want to privatize marriage.

I believe abolishing marriage is a bad idea but privatizing marriage is a good idea. Each couple writes its own contract before marriage; that contract becomes the basis for any legal claims resulting from the marriage. Right now, the legal meaning of marriage is often defined after the fact in divorce court.

Privatizing marriage could also resolve issues raised by same-sex marriage, which re-defines the marriage contract to fit a "gender neutral" model, replacing "Mom" and "Dad" with "Parent A" and "Parent B." Celebrating "Parent A's Day" just doesn't have the same ring to it. And who is Parent A? Mom or Dad? A private contract could help to retain gender distinctions.

We only have so many options here. The no marriage/free love option, which I believe will result in women raising children alone. The single mother supported by absent dad option, which results in men avoiding both marriage and fatherhood. Or a marriage contract that benefits both parties and give both parties reasons to make the marriage work.

Does the last option include same-sex marriage? Maybe--if the issues it creates can be resolved. Re-defining marriage is not a minor issue; doing so will re-define the family and result in changes to hundreds of laws. SSM advocates would be wiser to deal with the problems it will create than to deny them.
July 3, 2008

9:20 a.m.

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Ted_in_Vegas writes:

Bagel: Terms have changed; comparing Jefferson's stated beliefs against modern terms, you'd be better off calling him a Unitarian, not a Deist. And, the reason they didn't refer to Christ by name is that they were all Christians or familiar enough with Christianity to know that they were all refering to the same God, Jesus.

Malis: You resort to one private letter from TJ to the Danbury Baptists. I turn to Congressional Record. What was the very first act of the first Congress to meet under the Constitution of the Unites States? A 3-hour prayer meeting! What was their first appropriation? Funding for the translation of an "American Bible" lest we continue to use the King's Authorized Version - now known as the King James Version. (Interestingly, after the translation was completed, it was rejected by Bible scholars at the time because the KJV was, and is, still more accurate to the vast majority of original texts.) What happened next on this subject, KJV Bibles were purchased by the Congress and given to the public schools throughout the country.

WOW, there's a lot of separation between church and state there isn't there? LOL
July 3, 2008

9:55 a.m.

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me2 writes:

Now that makes my head hurt. We all know they were referring to Jesus because no one mentioned Him.

They got the Bible thing wrong but the kids needed some free books, and they got the slavery thing wrong. They were the founding fathers, not demi-gods.
July 3, 2008

10:15 a.m.

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Ted_in_Vegas writes:

True, but they got their God right and eventually got the the slavery thing right too.

Given the strong Christian influence in the anti-slavery movement, has it occured to you that it was because of our nation's joint trust in Christ as God that we've been able to correct some of these wrongs?

Now that we, as a nation, are turning our backs on Christ, we're creating a whole new set of wrongs.
July 3, 2008

11:56 a.m.

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kbrigan writes:

Or, how about we define marriage as a life-long commitment to an exclusive sexual, cohabitation and economic relationship limited solely to a single man and a single woman (i.e. two people who can be parents of a child), wherein any children produced by the marriage will be cared for in a single home by both the mother and father of that child? (And, therefore, regardless of how one deals with infertile heterosexual couples, same-sex couples would, by definition, not be eligible.) This definition of marriage would accompany a rededication on the part of government and society in general to discourage to the greatest degree possible the emotional and economic abandonment by natural parents of their children.

In other words, the primary purpose of marriage is to protect children. It does this by requiring monogamy (disease prevention, economic & emotional commitment of the father to the mother & kids), and by strengthening the legal and social obligations of parents to their children.

In other words, blood counts. No sane society ever deliberately set up a system whereby the tragedy of natural parents abandoning their kids (whether through death, parental incompetence or violence, or by making the moral mistake of being a "doner" for a same-sex couple) was celebrated as an equally desireable form of "family" as parents raising their own kids. People who adopt abandoned kids are to be congratulated, but only if they did not themselves encourage that abandonment to take place (i.e. by commissioning a sperm "doner," etc.) Adopted kids have undergone a tragedy, and their loss needs to be acknowledged. (Look up "genetic orphans" for info on how grown kids of anonymous sperm or egg "doners" are now suffering as a result of this grave moral mistake.)

Marriage is about keeping real, natural blood parents (BOTH of them), together with their offspring. Any other aberration of this idea harms kids. This issue is not about "justice" for gays, it's about ensuring the right of a child to be raised, whenever possible, to the greatest degree possible by his or her own parents.

Yeah, I know. I'm such a radical.

(More info, see the Institute for American Values (http://www.americanvalues.org/) and The CA Marriage Amendement site (http://www.protectmarriage.com/). And, by the way, I'm Agnostic, and politically dead centrist.
July 3, 2008

1:47 p.m.

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peterpi writes:

kbrigan, you want a monogamous, life-long, heterosexual marriage devoted to raising kids? Under what most people here, including Paul Campos, are arguing for, you would contract for it. The whole nine yards. Married until the death of one of the partners. No escape clauses. Iron-clad. Attempt to break the contract, and the courts would dismiss it, without a hearing on the merits.
Go for it. Nobody would stop you, and you'd have a thousand different religious institutions who would be glad to provide a religious rite to accompany your contractual obligation.
But, let other couples form other contractual arrangements. Marriage is not and never has been exclusively about children. It's been about property, forming political alliances, sealing treaties, merging nations, creating financial empires, etc.
I believe in separation of church and state when it comes to marital arrangements.
July 3, 2008

2:19 p.m.

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malis writes:

hmmmm...I wonder if Bob Heinlein (Robert A. Heinlein) proved himself wrong by coming back as a spirit and possessing Paul Campos long enough to write this column? Nah...writing's not good enough. Still, see Heinlein's 'The Moon is a Harsh Mistress' for an interesting description of a society living under the principles Campos describes (also one of the best descriptions of a fully 'Libertarian' society I’ve read).
July 3, 2008

2:48 p.m.

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malis writes:

Ted, I don’t mind stipulating your point (because it’s one I was making too)—most people living in the colonies and then the United States of America in the 17th and 18th centuries were, reflecting their era, quite religious. It is unsurprising to find people acting in accordance with customs and traditions of their time.

On the other hand, these very religious individuals well understood the potential danger government-involved religion posed to society, and the potential danger of the State to religion. Therefore, in their foundational document of government, “the supreme law of the land”—the Constitution—they purposefully and unambiguously established freedom both of and from religion, enforced by the “wall of separation between church and state” (again, Jefferson’s words describing the Establishment Clause).

They did this in Article VI:

- “no religious test shall ever be required as a qualification to
any office or public trust under the United States.”

…and in the 1st 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.”

Recall that the agreement to ratify the Constitution in the first place, was reached only on the assurance of the additional ratification of the first ten amendments—the “Bill of Rights.” Notice the place of honor granted the Establishment Clause—the first freedom of the first amendment of the Bill of Rights, is freedom from and of religion.

So, Ted, are you trying to imply ‘separation of church and state’ is a myth? It's a fairly common talking point among the religious far right (which I assume you are) that the Establishment Clause means only that government can't 'Establish' a State Church. As a matter of history, fact, and decided law, however, that's simply incorrect. Again, the Establishment Clause says simply: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The authors understood very well the purpose was to establish that 'wall of separation.'

Want some evidence for that?
July 3, 2008

2:54 p.m.

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malis writes:

OK, extra credit if you identify the source of this quote:

"The `establishment of religion' clause of the First
Amendment means at least this: Neither a state nor [367 U.S. 488, 493]
the Federal Government can set up a church. Neither can pass laws which
aid one religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or to remain away from
church against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax in
any amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly, participate in the affairs of
any religious organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by law was intended
to erect `a wall of separation between church and State.'"

Ding! Ding! Ding! You’re right, it’s the Supreme Court of the United States! (Everson vs. Board of Education, 1947) And if that isn’t clear enough, a little later in the same decision they clarify the point further:

.."Not long afterward, in Illinois ex rel. McCollum v. Board of Education,
333 U.S. 203 , we were urged to repudiate as dicta the above-quoted Everson
interpretation of the scope of the First Amendment's coverage. We declined
to do this, but instead strongly reaffirmed what had been said in Everson,
calling attention to the fact that both the majority and the minority in Everson
had agreed on the principles declared in this part of the Everson opinion. And
a concurring opinion in McCollum, written by MR. JUSTICE FRANKFURTER
and joined by the other Everson dissenters, said this:

..."We are all agreed that the First and Fourteenth Amendments have a secular
reach far more penetrating [367 U.S. 488, 494] in the conduct of Government
than merely to forbid an `established church.'. . . We renew our conviction that
`we have staked the very existence of our country on the faith that complete
separation between the state and religion is best for the state and best for religion.'"

(...that last, by the way, was the Court making the point that, although there were dissenters to Everson, they agreed 9-0 that “...complete separation between the state and religion is best for the state and best for religion.")
July 3, 2008

3:57 p.m.

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Ted_in_Vegas writes:

OK Malis, you have a point. I seem to remember the Supremes don't always get things right and have to overturn previous bad decisions; ie: Dred Scott, Plessy v. Ferguson, etc. Others require overturning or fine-tuning like Roe v. Wade, Boumediene v. Bush and Everson vs. Board of Education, 1947.

We were a Christian nation and the more we get away from that, the more violent and less moral society we become. I have no problem with the courts saying "Colorado cannot be a 'Baptist State', Utah cannot be a 'Mormon State', and Maryland cannot be a 'Catholic State'."

Its entirely another to ignore our Christian heritage and continue to turn away from God as we see our society getting more and more perverse as we do.
July 3, 2008

4:02 p.m.

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kbrigan writes:

Or, to put it another way, marriage has been and should remain our GOVERNMENT (aka. We, most of We The People) saying that, "If you want to live in these parts, you don't get to abandon your kids without facing dire (or, at least, fatiguing and/or expensive) consequences." Regardless of your religion. Regardless of whether or not you're under the delusion that you can "sign over" to other people the "right" to pretend to be parents to YOUR offspring. Your genes; your kid. Individual contracts do not suffice in this case because no way can a just country not have laws protecting the right of kids to be raised by their real parents.

Once again, IT'S NOT ABOUT YOU. (And, sorry, but one can't help wondering if all those theories linking homosexuality and narcissism might have some validity, seeing how quickly those folks arguing for same-sex "marriage" forget about kids' rights, needs and welfare.) THE KIDS COME FIRST.
July 4, 2008

9:20 a.m.

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Roader writes:

I think Campos’ column is spot-on. Never in the comments above or in the media stories on gay marriage have I read about Social Security’s effect on the institution of marriage and the cost of divorce to taxpayers.

Under Social Security rules, divorced spouses are entitled to half their former partner’s Social Security benefits if the couple was married at least ten years. So, theoretically, someone could get married and divorced every ten years – say from age twenty to age sixty – and their four ex-spouses are entitled to receive half of the benefits the wage earner receives at retirement. This isn’t too far from reality; first marriages last an average of eight years, and more then half of all men over 25 get married at least twice (U.S. Census Bureau, 2007.)

One wage earner, plus four ex-spouses at one-half benefits, is the equivalent of three people receiving full benefits, with the contributions of just ONE person (the wage earner) paying into the system.

Two observations about this rule: One, contrary to commenters’ assertion that government has a role in strengthening heterosexual marriage, Social Security policy has the opposite effect. Entitling divorced spouses to a half of their ex’s SS benefits after only ten years of marriage ENCOURAGES divorce.

Second, I suspect that this dirty little secret is a main driving force behind disallowing homosexual marriage at the federal level. If homosexual marriage were to be recognized by the federal government then the half-benefit-for-divorced-spouses would have to apply to divorced homosexual couples as well. I can’t find an estimate of costs to taxpayers for divorced spouses and the financial impact on the Social Security Trust Fund, but it has to be pretty darned big. Add tens of millions of divorced homosexual spouses into the mix and the financial viability of Social Security would be even further weakened than the current, miserable long-term calculations indicate.

Paul is right: get the government out of the marriage business. Contract law would serve married couples and their kids very well.
July 4, 2008

4:15 p.m.

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raysmom writes:

There is so much ignorance here about the current laws surrounding mariage and divorce- it's stunning.

Campos' idea wouldn't put family law attorneys out of business- it would do exactly the opposite. Every union would require painstaking contractual documentation, and there would be no standard for nullifying the contracts. One poster said there should be rules for separating assets and support and child support- there are! Well designed, standardized formats- the judge has some leeway for deciding personal property and debt responsibility, as he/she should. This same person also said that children shouldn't have to reduce their lifestyle at all because of divorce. That's incredibly unrealistic. Most people are living beyond their means together- if they CHOOSE to have children and CHOOSE to dissolve the marriage, one can't be homeless- joint debts must be paid, support and child support must be earned, etc. If non-custodial parents don't pay, there is little the courts can do NOW about it, except for contempt and a little jail time-IF the parent is around- what would it be like under this model? And isn't this what gays are complaining about? That they want legalized MARRIAGE, not civil unions, because they don't want to pay attorneys so much for the given rights of heterosexuals in legally recognized MARRIAGES? That's been one of their main complaints!

Instead of punishing all of society for having certain standards, as Campos thinks we should, I think we should allow gays to marry- really marry. I have mixed feelings about it, but I don't have a huge religious problem with it, personally, and it would give them responsibilities as well as privileges. It would cost society more in benefits on the job, SS, and such, but those can change, too, and they might. Marriage IS a responsibility, and a moral commitment, as it should be. Not necessarily religious, but moral. To abolish marriage, as it stands, would be an incredible hornets nest, and defeat the purpose of those unions entirely. This doesn't make sense.

My husband is a family law attorney, and he was amazed at the ignorance that Campos showed. I wonder if he's thinking of going back into practice? There's lots of $$$$ to be made going with this idea for attorneys, and years and years of legal precedents to set. I guess not- it's a tough way to turn a buck, and I don't think Campos has the huevos for it- some days it drains my husband dry and breaks his heart, but it still beats the heck out of Campos' alternative.

BTW- we put my husband through undergrad & law school on our own dime, and we have been married for 25 years. If I can stay happily married to a lawyer for that long, then ANYBODY can do it- and he knows he can't AFFORD to divorce me! LOL!
July 4, 2008

7:42 p.m.

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El_Guapo writes:

"Every union would require painstaking contractual documentation, and there would be no standard for nullifying the contracts."

Under current no-fault divorce laws, a marriage can be ended any time either party wants to end it. And the party who usually ends it--the wife--usually gains the most when she ends the marriage.

In addition, the marriage contract is currently defined after the fact in divorce court, which is also the only time the contract is enforced. The terms of the most important contract a person ever "signs" are not known in advance. That makes no sense. I suspect most men would not enter the contract if they knew what it really meant--she can leave at any time, take the kids, take the house, and take a good portion of a man's future income.

Further, family courts are constantly changing the contract and applying the new terms ex post facto. That includes re-defining marriage to include same-sex partners. No more "husband" and "wife"--just "Partner A" and "Partner B." (Do we still have two sexes or just Gender A and Gender B? If a child can have two moms, is there any legal difference between a mom and a dad? Between a man and a woman?)

I do not have an ideological reason to oppose same-sex marriage--but I do believe it's unwise until the problems are worked out. The legislatures won't touch SSM because it's widely opposed, so the courts are re-defining marriage on their own. That is not the best way to make a far-reaching change in society and the law because it makes no provisions for the resultant changes.

Private marriage contracts could be standardized with check boxes for various options. Each couple could also customize the contract. That's better than a blank contract to be filled in later by a divorce court judge, which is what we have now.

Marriage lawyers would have work if marriage were privatized, but divorce lawyers might have less. It's wiser to prepare for a good marriage than to prepare for a "good divorce."
July 5, 2008

10:48 a.m.

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WestminsterJ writes:

me2: We don`t know for sure that there is a God/Goddess so we can not say for certain that marriage came from He/She. We know people exist so I assume we invented marriage. That being the most logical case, we can also change its form and function as we see fit.

So instead of building our society on a foundation of religious belief, we should build it on agnosticism/secularism. That really *is* the choice; a truly religiously-neutral society is an impossibility, and to your credit you are honest about your desire to eliminate religion from public institutions, including the legal system.
"As we see fit"; who is the "we", the majority? A plurality? If we were to become a nation with a majority of pederasts (it *has* happened before; see Athens in its declining years) can we "redefine" marriage to include pederasty? Polyamorous relationships?
July 5, 2008

2:55 p.m.

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paulsnjfriend writes:

Raysmom makes some good points. Marriage is a bundle of legal rights and obligations. To just say "marriage" doesn't analyze the issue. Marriage affects property rights, inheritance, health benefits, social security, support, pensions, rights to raise and control children, rights to receive benefits due to death or injury, etc.etc.

Campos shouldn't be teaching law because he never analyzes an issue correctly and can't logically discuss any problem.

Marriage is pretty much a world-wide institution based upon human nature and procreation. Even many animals couple. True, the law has added many benefits and obligations to the "contract". Some may not be the best solutions such as social security that gives triple benefits to us of multiple wives.

Contract marriage would not work. It is too complex. Even now you can do a prenuptial agreement, but few do; so the law sets up a default agreement. Gay marriage probably has a lot of different problems than hetero-marriage. When courts lump them together they don't solve these problems, they just create new problems. Good reasons exist to allow same sex partnerships. Many couples now share property, raise children and are a benefit to society. I know of several gay couples who have adopted or have given birth to children. They should share some of the benefits and obligations that heteros have. What are these? Benefit rights, support of children and many others.

You started a good discussion, Paul, even though your conclusions are shallow as usual.
July 6, 2008

2:53 a.m.

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Patron_Drinker writes:

Bagel,
I think the answer to your question is 9 of the 10 commandments being codified into law. Mind you, I’m not a lawyer or legislator, and I admit that others may have a different enumeration of the commandments, and may interpret a few of them differently.
The 1st establishes His authority to make the commandments and tells us not to worship anyone/anything else. The 2nd says not to take His name in vain, and I’m sure profanity laws still exist, though they’re seldom enforced. The 3rd establishes a day of rest (and worship), and the law requires that you get at least one day off each week (and says that you can’t be forced to work on your religion’s day of worship). The 4th establishes parental authority, and by extension, all other authority. The 5th prohibits murder, assault, and possibly rape. Rape may be addressed by the 6th commandment which forbids extramarital sex. The 7th commandment restricts us from theft, including robbery, burglary, and fraud. The 8th outlaws lying, meaning perjury, defamation, libel, and slander. The 9th and 10th commandments talk about coveting, which could be interpreted as stalking, rape, pandering, industrial espionage, and “casing the joint”.
July 6, 2008

2:35 p.m.

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me2 writes:

Gee Westminster, thanks for the answer. Humans invented all social institutions including marriage, and they change it all over the place.

I agree that the amount of misinformation on marriage and family is stunning.

Agnostic/secularism is logical, religion is not. The original purpose of marriage let those in the community know who had sexual access to whom. Married women were to dress and look different from single girls. Clothing changed, hair was worn up, rings, neck rings, etc. These women were off limits to other men.

The village or community or tribe raised the kids when young moms or dads died.

Only recently has the idea that marriage is all about children come into fashion. And now that nuclear family fad is being used as a justification to prohibit same sex marriage.

Nice to see someone elaborate on the Ten, but they didn`t say what you printed. All the other laws of the time did address those issues, but not the Ten.

Rape was a property crime, not a personal crime.

If you remove religion from consideration in same sex marriage, remove the idea that marriage is just for children, then you are left with no valid reason to restrict it.

A small exercise here, make a list of all the women you know who have never married. Then make a list of all the men who have remained single. The male list will be longer.

Marriage is less popular with men. There are four old unmarried men in my family alone.

People who support same sex marriage do not then dismiss the needs of children. Just because you can post something, must you?

If you put religion into marriage, watch out, some other religion, say Islam, may outnumber you all some day and change marriage to one man and three women only.

Only three commandments are law, no killing, no testifying falsely against a neighbor, and no stealing.

A woman married over ten years, cannot collect SS on that first marriage unless she is unmarried and I think disabled. Call SS and ask them. A married woman getting her own SS and her husband gets SS, no money from previous marriages.
July 7, 2008

9:56 a.m.

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El_Guapo writes:

"Humans invented all social institutions including marriage, and they change it all over the place."

True--but there will be consequences to the changes. To me, it's not enough to say we can change it. The question is, do we want the consequences the change will bring?

"Agnostic/secularism is logical, religion is not."
As Spock said in Star Trek VI, logic is but the beginning of wisdom. Aristotle, the creator of logic, believed in an Unmoved Mover.

"The original purpose of marriage let those in the community know who had sexual access to whom."

Marriage was about more than sexual access. It was a set of agreements that benefited both parties--or else it would not have endured. Without marriage, women end up raising the children without help from the men.

"The village or community or tribe raised the kids when young moms or dads died."

Yes, but that was a backup system, not the preferred outcome. And it worked best in villages, not in the large cities have today.

"Only recently has the idea that marriage is all about children come into fashion. And now that nuclear family fad is being used as a justification to prohibit same sex marriage."

Marriage was about more than having children, but children were part of the motive for getting married, especially when having children outside of marriage was frowned upon.

"If you remove religion from consideration in same sex marriage, remove the idea that marriage is just for children, then you are left with no valid reason to restrict it."

In other words, if you re-define marriage, then yes, there is no reason to restrict same-sex marriage. Just don't pretend you're not re-defining marriage.

"A small exercise here, make a list of all the women you know who have never married. Then make a list of all the men who have remained single. The male list will be longer."

So who did all these women marry if not men?
July 7, 2008

12:41 p.m.

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WestminsterJ writes:

me2: Agnostic/secularism is logical, religion is not.

That's quite an assertion. A lot of very smart, logical people disagree with you.

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Home › Opinion › Opinion Columns & Blogs

CAMPOS: Legal marriage obsolete

By Paul Campos, Rocky Mountain News (Contact)

Published July 2, 2008 at 12:05 a.m.

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