Below is a comment that I left on the Volokh Conspiracy some time ago. Rather than squander perfectly good ramblings there, I have reproduced it here and attached a link. Th’ Gaussling
Broadly, we have two kinds of marriage in the USA. One is before a god and the other is before the state. Marriage before a god is a supernatural arrangement that is beyond the scope of this letter.
It would seem that the states compelling interest in marriage is mostly confined to the disposition of debts, assets, and minor children during the marriage and in the event the marriage fails. Married partners have an obligation to the welfare of minor children born to them or adopted. Married partners also have a status that allows for decision-making in critical care situations. It seems to be a kind of partnership whereupon responsibility for the secular aspects of married life are defined. After all, the state is called in to make decisions as to the disposition of civil matters in the event of a divorce. Surely the state can clearly define certain basic responsibilities and privileges in advance.
The moral/spiritual aspects of marriage “can” be interpreted as being perpendicular or orthogonal (like the x and y axes in a graph) to the legal dimension of property rights and other secular aspects of married partners. The state is without supernatural powers, thankfully, so it is inherently impotent in the spiritual dimension. If that is the case, and in the absence of a uniform interpretation of supernatural governance, it should be silent on spiritual matters.
The state should have no interest in how married partners conduct their lawful affairs beyond the normal confines of civil and criminal law.
A code defining the responsibilities of married partners in a variety of configurations could be modeled easily. If you accept the premise that secular marriage is confined to the mundane matters that are already contestable in a court, then it is a simple matter to imagine same sex or plural marriages under the same constraints. What is the compelling interest of the state in barring same sex partners from having automatic authority in giving comfort to a dying partner? We already have codes regulating many other kinds of complex relationships between people- corporations, partnerships, LLC’s, government, etc. Minimally, the state should entertain the prospect of recognizing limited entry of some new definitions of marriage to adult parties wanting to be responsible members of society with the rights and responsibilities thereto appertaining.
Lamentations on Chemistry 
YES!!! Thanks for the rambling. It made me happy.
If the state had supernatural powers, we’d all be pretty much screwed anyway.
1) I thought the state with supernatural powers thing has been tried (China, Russia, lots of nutcase dictators). I don’t know if their powers actually extend(ed) that far, but they act(ed) as if they did. 1984 would probably contain a better example – if you can change someone’s mind completely, than belief and all its consequences are useless because they can be changed without your consent, and the concept of self is a (sick) pretense.
2) We (USians) have a very long tradition of making people behave as we desire, particularly when it doesn’t cost us anything to do so, and particularly when it constrains/screws up the lives of others. Why would you want to interfere with such a noble tradition? It has given us so much of consequence, like 7+ years of W, Prohibition….
Marriage written by contract would be more flexible, but would favor those with money or influence unduly. While some of the reasons people divorce are directly related to the responsibilities the stae oversees, most probably aren’t. Allowing partners to have sexual/romantic attachments outside of marriage, etc., would have to be negotiated or stated somewhere.
When gay marriage came up in OH, it was claimed that allowing it would be like allowing bestiality or child sex. Other than the presence of nonconsenting individuals in those examples (not present in gay marriage), if enough people wished it so, it would be so. Marriage isn’t written in stone – if so, why do we allow divorce? We changed because people decided it should be changed, and it could be changed again.
The institution of marriage was established to legitimize and facilitate the procreation and nurture of children in a secure and safe environment, something in which the state has a vested interest.
Funny, considering the lack of support for children by society (because the money might go to “welfare moms” and all that), society’s interests does not seem to be primarily oriented towards the well-being of its children. Of course, leaving them a bankrupt government and boatload of debt doesn’t seem to be in the interest of children or society, but that hasn’t exactly stopped anyone lately, some of whom are the same ones complaining about gay marriage.
“‘Children are our future.’ But I’m hungry NOW.”
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Hap, it is OK and understandable to be frustrated by how some have (or have failed to ) implement edbooked’s concepts. But his concepts are much more fundamental that the imperfect actions you are focusing on.
Seems like a forrest and trees issue to me. Take a step back.
The whole point of writing this post was to point out that there are two kinds of marriage in practice. This needs “pointing out” only because many seek to alter the US constitution to frame a definition of marriage based on their religious doctrine. That’s fine. Except, if we’re going to go forward with this, we need to clearly understand the function of secular or statutory marriage.
Ordinarily, a church wedding accomodates both kinds. The preacher performs the religious rites as well as the signing of the statutory marriage license. A marriage before a judge accomplishes the secular marriage and leaves out the supernatural pleadings and machinations.
All this being said, I must admit that I am dubious about the use of the historical definition of marriage in relation to same-sex or plural arrangements. This definition has been in use for many generations and is steeped in tradition and religious significance.
While I think that the state should have no interest in how people arrange domestic partnerships, I do think that the use of the term “marriage” amounts to poor taxonomy when applied to same-sex or plural arrangements outside the traditional context. Surely the proponents of same-sex “marriage” can concede this point to aid the advancement of their cause.
His (edbooked’s) response is the reason why we have set marriage standards – because the children our the ones on whom our culture is going to depend. It just seems like the gay marriage arguments have very little to do with the well-being of anyone other than those militating against gay marriage. Probably similarly with open marriages and things like that.
If societal institutions are there to promote the well-being of children, shouldn’t that be the primary goal to keep in mind? We have finite resources, and so must decide the best way to use them to achieve that goal, but spending large amounts of resources on issues that don’t help that goal (and may hurt it) seems counterproductive. If that isn’t the main point of marriage rules, then we need to clarify what is the main point, and act accordingly.
I could see some other relationship standard other than marriage for same-sex partnerships.nonmarriage couplings because of history, but it seems like some sort of legal protection for same-sex/nonmarriage people would be a good idea, though it would help to resolve health care (since that is probably a significant driver for it – the desire for partners to obtain work-based health care that would otherwise be unaffordable). Much of the ado seems to be to refuse any legal protection for same-sex couples, other than that which is punitive.
Hi Hap, I guess we agree on this stuff. As a father, I have not forgotted how children fit into issue. I felt this topic needed some deconvolution.
Same-sex “marriage” is a low frequency phenomenon and complications arising from this arrangement can be handled on a statutory basis rather than a constitutional change.