After Obergefell, time for states to leave the marriage business

Justice Kennedy finished the job he started two years ago with DOMA today with his opinion on Obergefell. He should borrow a bag from Scalia; his opinion is wretched.

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WASHINGTON, June 26, 2015 — Two years ago, Justice Anthony Kennedy wrote the majority opinion in United States v. Windsor, in which the Supreme Court struck down some provisions of the federal DOMA. Today, on the second anniversary of that decision and joined by the same justices who joined him then, he finished the job, making same-sex marriage legal throughout the United States and requiring every state to recognize same-sex marriages performed in other states.

The dissent from Chief Justice John Roberts and from Justices Antonin Scalia, Clarence Thomas and Samuel Alito was harsh. Roberts declared that the majority opinion had nothing to do with the Constitution, their opinion obviating the need for legislatures. Scalia said that, were he forced to go along with so badly reasoned and written an opinion, he’d wear a bag over his head.

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The logic of a Supreme Court opinion is more important than the conclusion. In this case, many who have long agreed with this conclusion (myself included) will take little joy in the logic. Scalia said that Kennedy’s writing belonged in a fortune cookie, and in fact 18 of the 28 pages of the written opinion are an exposition on “Mawwiage, that bwessed awwangement, that dweam within a dweam. And wove, twue wove, wiww fowwow you fowevah and evah …”

Kennedy was clearly writing to be quoted on Facebook. Only 10 pages deal with the legal arguments, and we could conclude from them that legislatures really are unnecessary when the court wants to obtain a specific result. It will tailor its logic to its ends, an exercise we can call “legislating from the bench,” and that was once called “sophistry.” This is an opinion that begs for decades of litigation and will certainly get them.

The conclusion, nevertheless, remains one that conservatives could easily support. As Kennedy observed, marriage is a fundamental institution, important to society, to couples and to their children. This was his justification for extending it to same-sex couples, and the argument is conservative.

The default conservative position on rights is to assume that they exist unless they are expressly denied; they should be denied only if there is a compelling social interest in limiting them. This is in opposition to the common liberal default that rights come from government and exist only when expressly granted.

The religious argument against same-sex marriage is a non-starter. This may be a primarily Judeo-Christian nation, but our Constitution is secular. Religious rationales are a form of special pleading that has no relevance unless it coincides with a compelling interest. God’s will is not a compelling social or government interest.

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It is, nevertheless, an important cultural factor and one that puts this decision on a collision course with people who have a religious objection to same-sex marriage.

At least a partial solution is obvious; the states should get out of the business of performing marriages. Marriage comes with a wide variety of legal rights and advantages—tax benefits (and costs), inheritance rights, retirement benefits, adoption advantages and so on—from the state. But these are benefits that could be conferred with another contractual arrangement, such as domestic partnerships.

The state should confer domestic partnerships; churches should perform marriages. If a couple wants the benefits conferred by the state, they should enter the state’s arrangement. If they want their union sanctified as a sacrament, they should marry in a church. If they want both, let them do both.

Our current system of marriage turns ministers into agents of the state. They not only perform a holy sacrament, they also sign a legal document that makes that sacrament a legal contract with legal benefits.

This diminishes the sacrament and the minister or priest. It also leads us to confuse the legal arrangement with the sacred rite. Marriage is a combination of different things in our society—contract, sacrament, coming of age rite. The three need not be combined in one.

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If states stopped contracting out the contractual side of the business to churches, there would be no more reason to fear that the state might interfere in religious marriages than that it would decide who can be baptized or ordained into the ministry.

It is only because marriage is both a religious and a secular legal arrangement at the same time that the danger of government interference in church marriages is even conceivable. The likelihood that the state will interfere with religious practice on marriage is hotly debated, but it isn’t zero. Removing the legal element would push the odds much closer to zero.

This is not a solution that requires legislation. Churches can act unilaterally, refusing to allow their priests and ministers to sign legal marriage certificates. They can choose to make their weddings into pure religious sacraments and let the couple sign their marriage license in a courthouse to get the legal benefits of marriage. But it would be better if states did get their noses out of our churches, synagogues and temples by refusing to recognize religious ceremonies as legally binding.

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