Now, your regional sob story and hopelessly convoluted sexual ethics don’t entitle you to discriminate from your elected office, but I have the inescapable feeling that by holding her in contempt and tossing her in the clink, Judge Bunning did precisely the wrong thing. He was correct to observe that a pecuniary penalty would have had no impact; political allies of her lawyers would have made fines immaterial to her. And yes, courts do need a mechanism for enforcing compliance with their orders. But it strikes me that if Bunning could just wave his federal wand and allow others to issue the permits, then I see no reason why he couldn’t do the same without the cell. Despite her protestations to the contrary—that these certificates are somehow invalid without her signature—no one believes that the boys down at the Social Security Office are going to take her word over the order of a federal judge. I’ve seen some commentary on the convoluted authority to issue these permits in Kentucky, but state permitting statutes don’t trump the constitution, and their misapplication doesn’t invalidate gays’ right to marry.The first thing I thought of when I heard that Davis had been jailed was an anecdote about the Roman Emperor Julian, called The Apostate because he renounced Christianity and tried to re-paganize the Empire. He tried to take away the privileges that Christians had been given under Constantine and his successors, but without overt persecution of the cult. He didn't have much success, but supposedly some bishop angrily said to him, "You will not even let us be martyrs!" I can't find this episode online, but I still think it's a good principle: don't cater to the Christian paranoid delight in persecution or even the fantasy thereof. I've been really bothered by many liberals' glee when Davis was jailed. Yes, she deserved it, you might even say she asked for it -- but that's all the more reason not to give it to her. (Martyr me, said the Christian; No, said the State.)
What prompted my post today, though, was a comment under JB's post:
It’s a more salient issue to me that the state is uses a religious institution as a social engineering tool. It’s a direct line from the feudal lord having to give his consent. I’m not even a libertarian and I think a country with an Establishment Clause in its constitution should not be involved in sanctioning marriages. There are other ways to collect fees from people…I misread this slightly, as a call for the government to get out of the marriage business -- probably because the commenter referred to libertarians, who've made that call. But, to begin, I don't agree that marriage is essentially a religious institution (and I don't see the connection to "the feudal lord," if only because marriage is a lot older and widespread than the feudal system). Marriage hasn't always been a religious institution even in Christendom, and there's no reason I can see to regard religious marriage rites as anything but a wishful adhesive intended to help keep couples together. What, for example, is specifically religious about Jacob's purchase of Rachel from his uncle? If the Bible contains regulation of business practices, which it does, is commerce essentially a religious institution? Government allied itself with religion very early on, for obvious political reasons; is government therefore a religious institution?
Reading this comment reminded me of an op-ed written by Rand Paul for Time magazine soon after the Supreme Court ruled on Obergefell v. Hodges in June. I remember writing at some length about Paul's piece, but it must have been in comments somewhere that I can't find now. I meant to post about it here, and thought I had, but evidently I didn't. So here goes.
Paul begins by complaining about the Court's "redefinition of marriage," which is of course nonsense, and goes on to suggest, "Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party."
Since government has been involved in marriage, they have done what they always do — taxed it, regulated it, and now redefined it. It is hard to argue that government’s involvement in marriage has made it better, a fact also not surprising to those who believe government does little right.His remark about Alabama was premature: the legislature briefly considered a bill that would have stopped government issuance of marriage licenses there, but the bill died in committee. His general argument is dishonest, as shown by his remark that "our founding fathers went to the local courthouse to be married, not to Washington, D.C." If Paul was correct about this, he undercut his claim: The courthouse is a government office, which indicates that the Founders saw marriage as the domain of government as well as of religion.
So now, states such as Alabama are beginning to understand this as they begin to get out of the marriage licensing business altogether. Will others follow?
From the context it appears that by "government" Paul really meant only "the Federal government." He seems to have no objection to state governments regulating marriage by passing laws and constitutional amendments which refused to recognize same-sex marriage. Certainly all the conservatives who supported those laws and amendments can hardly claim that they "believe government does little right," or that government shouldn't overrule religious definitions of marriage, since those amendments generally forbade any religious recognition of same-sex unions. The basic legal issue in Obergefell was whether the states -- i.e., government -- should be empowered to regulate and define marriage as they pleased.
While a few Libertarians had argued for privatizing marriage before, the idea only got any traction when conservatives, who are traditionally sore losers, decided that their best next move was try to get rid of legal marriage altogether. As Amanda Marcotte pointed out at Slate, Paul's plan
is reminiscent of how segregationists reacted to Brown v. Board of Education. Rather than allow their children to go to school with black students, white people throughout the South started private, often religious schools, nicknamed “segregation academies.” It wasn’t just schools, either. As my colleague Jamelle Bouie explained recently, the decline of the public pool is also a symptom of this reactionary urge to privatize an institution rather than share it with people who conservatives consider undesirable. That the same logic is being whipped out by Paul is no big surprise. This is a man who famously opposed the Civil Rights Act that made the “privatize instead of share” goal harder to achieve.I would only add that Christian racists' resort to "private" segregation academies didn't go as far as renouncing government subsidies or tax exemption for them. Oh, no indeed.
I doubt marriage privatization will get very far, partly because its advocates are still largely comfortable with state or local interference in marriage, but mainly because the religious opponents of same-sex civil marriage want heterosexual marriages to be recognized by government at all levels for purposes of the "entitlements" that Justice Thomas sneered at in his dissent. They want their spouses to share their Social Security benefits, they want spousal and widows' benefits for the military, and so on. In order for that to happen, the government will have to have criteria for deciding who is married and who isn't. Paul says he wants marriage, insofar as it's a legal bond at all, to be a purely private contract, which would presumably mean that any two -- or more -- people who've contracted marriage would be eligible for such benefits. That will not appease, let alone satisfy the religious opponents of same-sex couples: they don't want such couples to be eligible for those benefits or any other.
Another disadvantage to privatizing marriage is that it would undermine Justice Roberts' warning in his dissent that the ruling would open the door to legal polygamy. Privatizing civil marriage, reducing it to a contract between consenting adults, would in Roberts's words offer "no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not." Roberts tiptoed around the fact that plural marriage is a biblical value, and offered no reason why government -- which according to Rand Paul "does little right" -- should prohibit polygamy if a religion permits it. Another issue Obergefell was meant to settle was whether a couple can be married in one state and not in another. In principle there's no reason why heterosexual marriages, including Paul's and a fortiori Justice Thomas's interracial one, should be valid in every jurisdiction, and DOMA (another instance of the Federal government meddling in marriage) as well as the state-level bans on same-sex marriage were meant to create a crazy quilt of definitions. Since Paul and other privatizers are comfortable with state governments defining marriage for their jurisdictions, they should remember that there are states and municipalities where plural marriage might be acceptable, and Paul's contractual proposal doesn't seem to offer any obstacles to more than two people contracting a marriage-like relationship.
Calls for government to get out of the marriage business are really just a transparent move in the direction of theocracy. Paul didn't bother to hide his religious agenda: "The Constitution was written by wise men who were raised up by God for that very purpose. There is a reason ours was the first where rights came from our creator and therefore could not be taken away by government. Government was instituted to protect them." But only to protect the rights of heterosexuals, and especially Christian heterosexuals, to run American society.