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Government should have role in marriage, says law professor

June 2, 2009 by  

Government should have role in marriage, says law professor A University of Iowa law professor has written about whether or not government should be involved in regulating marriage.

Ann Estin responded to those who argue for separating the two sides of marriage in the U.S. saying civil marriage is unnecessary because government can regulate family issues with existing contract and property laws.

Proponents of this approach call for granting civil unions to all couples and leaving marriage to religious faiths.

However, according to Estin, who is a family law expert and author of Unofficial Family Law, such ideas are attractive theoretically, but fail to recognize the deeply rooted importance of marriage in American culture and the complex interaction between civil and religious marriage.

"Concluding marriages with a single ceremony prevents the ambiguity and potential complications of different status in civil and religious law," she writes, adding, "In our society, as in many others, the definition of marriage . . . has been central to our self-definition as a community."

State regulation of marriage is also a subject in the debate over gay marriage rights.

Last week, the California Supreme Court upheld a ban on same-gender marriages based on the passage last November of Proposition 8 which sought to restrict the definition of marriage to opposite-sex couples.

However, supporters of gay marriage, who called the decision a sad day for freedom and fairness, have vowed to continue what they see as a civil rights struggle.
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  • s c

    Professor Estin has mind-boggling faith in government (any performance standards?) This faith seems worse than misplaced, as our government has a whimsical talent for screwing up everything it touches. As for the idea of relying on contract and property laws, our government has shown no hesitation to ignore property laws when it was convenient. This government ignores contract law, and assumes unilateral powers not granted by the Constitution. This government is not above destroying families. This professor’s recipe sounds like yet another social
    implosion for America. Don’t we have more than enough slowly-boiling-frog ‘recipes’ now?

    • Kim McGough

      Tell them about it S C, and we have stood by and watched these people ruin are country

  • FlexSF

    Does she believe that the “deeply rooted importance of marriage in American culture” will evaporate with the legalization of gay marriage? This sounds like pure homophobia wrapped in a wholly untested legal/psycho theory.

    Look at the state of Massachusetts. People continue to marry, gay and straight, raise children, and nothing negative is happening as a result. Except the anti-gay obsessed religions are proving to be empty shells without their gay scapegoats!

    • Kim McGough

      If a religion is sincerely a true one and based on faith that God exsits, and the believers live the teachings of God’s written Word, then it is not an empty shell. You like everyone else has the right to believe, or not to believe

      • FlexSF

        Yes, you do have a right to believe anything you want, but when you believe that you can vote away our rights, you’ve crossed your boundaries. For example, proposition 8 was a flamboyant act of religious intolerance. Hundreds of thousands of “christians,” and many mormons, imposed their religion into our private lives, through the law. The proposition was fueled by pure hatred, and lies, towards an entire class of people. The hatred is espoused in many religious circles.

        Without this obsessive hatred, religion is indeed an empty shell, and it’s followers are disgusting!

        • Kim McGough

          You may believe religion to be an empty shell, and yes there is a world of hate out there. Take a look at what the Roman Catholic and English Churches did to all who did not believe their way, it was nothing but terroism. A true christain is supposed to be like Jesus Christ, who hated sin but not the sinner, He taught love and compassion, honesty, helping the needy. He never condenmed a person, but explained right and wrong, He gave them a chance to believe, if not that was their choice, and still there was no hate. Now, yes I will vote the way I see fit and feel is right, that is my duty as an America, the same as it should be for every America, andyes let the majority win. But I will not go far right or far left, because that is where the danger lies. I do not want to tell anyone how to live nor to take anyone’s God given rights away, and that is freewill to live, but with in the law set forth by our government, whether it is right or wrong. Jesus said to honor those over you in government, and yet by doing so you don’t have to sin. Trouble is the line has been drawn by hate, and the belief of people that they are always right regaurdless of which side they may be own, the christian is out to get me, or that bunch wants to run my life for me, well that is not me, you make your choice and I have already made mine, not to tell anyone how to live but that Jesus gave His life for them, believe it or not that is your choice, and this kind of life is not empty, but rewarding, happy and full, and like I said I do not hate, but there are some dislikes in peoples ways. So if I have offended you I am sorry, but please take a look at what Jesus stood for and taught for yourself, not what you have been told. Thank You for you opinion, Kim

        • Dale

          I didn’t realize that there was a “right” to marry.
          Many people think that there is also a “right” for
          anybody and everybody to drive a car or even
          vote. There isn’t. You don’t have the “right” in
          this country to marry a minor ( and that varies
          in age by State ). You don’t have the “right” to
          marry three women ( or 3 men ). You can’t
          marry your dog no matter how much you FEEL
          that your dog loves you.
          You can throw out old, tired, rhetorical buzz
          words like “homophobia” and “hatred” and
          “intolerance” all you want. But in the end, it is
          YOU who is the “empty shell”. Relying on worn
          out arguments and vacuous emotionality to
          win over converts shows desperation and
          emotionally stunted growth.

  • Eric Bischoff

    Actually it’s all about the legal, contractual issues. If we can solve that then the rest will take care of itself. Unions and long term commitments without protection of assets and everything a family builds together is what it’s all about. Insurance, wills, inheritance, rights of survivorship, etc… It’s about equal rights.

    The marriage in a church or in a backyard is a celebration with friends and family. The churches who object to certain unions will just lose these parishioners and their business. Who would want to belong to a church that thinks they are freaks anyway.

    Culture can change. And it changes faster than ever before. That’s the problem with conservatism it is doomed. Things cannot stay the same forever. Some core principles are good to hang on to but obviously not everything. We learn and grow, well some of us do anyway.

    • Kim McGough

      If the religion is Bible based, then the homosexual lifestyle must remain wrong, reguardless of the government rules and regulations, and pulling away from the Bible and what it teaches will ruin any Bible based faith. If you take out one part then you might as well do away with it all. I guess faith in God is no longer needed in this world. Just do what you want too! Even the men and women that live together without marriage are wrong. Culture may change but God don’t!

    • OrlandoRican

      I agree that “things cannot stay the same forever”. Some change for the better and some change for the worse, unfortunately. This new government was all about “change”. Time will tell whether it was for the betterment of our country or the complete opposite. We will soon find out.

      • Eric Bischoff

        Orlando
        Yes people voted for change but no one really spelled out the changes. It was really about anything to change direction from where we ended up with the Bush regime.

        But now, we the people must spell out and fight for what we want. there is no reason why we can’t keep pushing and demanding. Obama is not crazy, he is not a muslim, communist like some of the wackos on this site seem to believe.

        I think he is merely caught up in a ruling class machine that none of us have any real idea of how it really works. I remember listening to governor Jessie Ventura recently talking about being taken to the basement and being told how things work now that he was elected.

        We can’t be in love with Wall St and our capitalistic system so much that we let them run rough shod over us and put up with it.

        There is no reason why we can’t be more involved in fixing this country. We all have a hand in it either because we vote one way or the other or mostly because we don’t vote. Half the people vote and from that half how many really knwo what they are voting for? This is pretty dismal.

        It is each and every person’ responsibility to get involved in their local politics and ask lots of questions. If we don’t make the changes from the ground up, nothing will ever change at the top.

        We should’ve been in the streets in front of our banks revolting during the bank bailout. Instead of complaining and making fun about the people who take to the streets, we should all do it.

        A fat, lazy, uneducated electorate will never end up wih or deserve a better republic.

        Fox is not fair and balanced, it is anything but. It is right wing propaganda and sadly it seems to be where most of you get your news and ideas. There are never any lenghty intelligent discussions. Smart people with a different point of view are either not invited or when they slip through they are shouted down.

        • OrlandoRican

          I agree with you. Not just Fox, but all the media has failed us. none of it is impartial and we get what they choose to teel us – both on the Right and on the Left. WE. THE PEOPLE need to get involved by contacting our elected representatives (at all
          levels) and letting them know that they work for us, letting them know how we stand
          on the issues, and questioning their stand on issues. We need to get as much information as we can from different sources on any issue so we can form an
          educated opinion based on what we learn and not on what any particular Party
          wants to tell us. We must question the actions and decissions taken by our elected representatives (at all levels!). But most of all we must educate ourselves on the issues. No one else is going to do it for us.

  • Peter Umapp

    Yes we must retain the government’s ability, more specifically the family court judicial oligarchy’s ability to take away people’s assets, property, bank accounts, and kids. Also retaining the ability to keep people on a leash micromanaging their lifetime alimony obligations is a great idea too. Otherwise the government wouldn’t be a government.

    The good part is that all this governmet involvement is having a great effect on marriage rates. Check out the unstoppable marriage-rate drop over the last 38 years (see Rutgers Marriage Study Report page 4):

    http://marriage.rutgers.edu/Publications/SOOU/2008update.pdf

  • Robin from Indiana

    It seems like anything the government gets involved in does not turn out well. They need to stay out of this, too. Marriage is for one man and one woman. Maybe the gays should get a lawyer and work the legalities out. That’s really the only issue.

    As far as California is concerned, they need to give it up! It was voted on and rejected. The will of the people have spoken.

    • Kim McGough

      Right on Robin, let the states decide by popular vote

      • Eric Bischoff

        Robin & Kim
        On the topic of the people have spoken. That would all be fine and dandy except for one thing. When the fascist media helps spread propaganda and untruths and the population is not getting the whole story, they can’t make an intelligent choice or vote intelligently. That is another method of control.

        That has been the problem with this democracy all along and it has only gotten worse.

        Give people EQUAL RIGHTS regardless of race, religion, sexual preferences or creed and if it doesn’t directly affect you, then mind your own business. How dare we try and force our BELIEFS down anyone’s throat.

        Many of you are against prostitution too and you claim to follow Jesus. I believe that Jesus was full of compassion and would have rather hung out with a prostitute than a banker. Maybe he did.

        Denying gays marriage is homophobia which is an extreme and irrational aversion to homosexuality and homosexual people. Homosexuality is probably much older than the bible and prostitution.

        Isn’t it interesting how homosexual and bisexual behavior are widespread in the animal kingdom and these homosexual behaviors include sex, courtship, affection, pair bonding, and parenting.

        Don’t get stuck on the Bible being the only official law of the land forever. Although a great book, full of great stories for how one should live his life to be a better human, It is very old and was written by men over an extended period of time. And let’s face it, other religions have their own books and they feel the same way too. You can’t all be right.

        Societies grow and expand and learn and they should not be stuck with one book being the answer to everything.

        Follow your heart.

        Be careful though, I believe in Sondra Ray’s theories that your emotional state and beliefs are directly related to your physical condition. Knowing that, we have to ask ourselves about our rottenness and the prevalence of cancer; our hard heartedness and the prevalence of heart disease!

        • Kim McGough

          Hey Eric, neither one of us said we wanted to stop the so called gay marriage, but that it should have its own name, since marriage has always been between a man and woman, and I think that they should choose what to call it. I do not believe in making people live any paticular way. If they are christain, fine, if not fine, but don’t try to make christains submit to the other ways either. I don’t think the gay life is right, but that is their choice, I don’t think that a man and woman should live together without being married, but that is their choice, not mine. they don’t have to answer to me. You know there is no way that a country run by religion can survive in this world the way it is. God didn’t mean for it to, because he gave the human freewill. We do however have to have laws to protect people from the evil in this world. Most sin is against God, and not man. You have the right to choose for yourself, how to live and that right can not be taken from you. The only real issue is that a person be satisfided with his own choice and not blame someone else when that choice takes you down. There is no real point in belittleling a true christain, you probably have never met one, or you would not feel the way you do, because a true christain will not impose his way of life on another person, and he or she would treat everyone the same, and would never condenm a person, but would pray for them, that God Himself would show that person right from wrong. Thank you for your opinion, and God Bless You and America–Kim

        • http://yahoo clsygrm

          Reply to Eric: Pleeze get a life! Don’t push that drabble about the Bible just being a ‘book’ and not being any good anymore! The Bible was written from the beginning of mankind. Yes, there are other books written by other people, some classified as Christian, some not. God knows which religions are His and which aren’t. There are 7 true religions, the rest are false. It is each person’s right to choose to be religious or not. The same as marriage, living in sin, etc. Each person gets to choose for him/herself.

          Just because the Animal Kingdom doesn’t care about ethics, don’t put that on as something man can do the same way. Some animals are paired for life. They don’t marry their ‘off-spring’ either. Some birds mate for life, but they push their young to fly away, not stay in the nest so they can mate with them. Domesticated animals are more apt to incest as they aren’t allowed to roam and find a mate unless they are left outside w/o restraints. They don’t know any better as man has changed their habits with domestication.

          Other religions don’t allow incest or same sex relationships that I’m aware of. Pagan ones may still allow for these, though. Jesus wasn’t happy with paganism, either. He ‘turned the other cheek’, but in doing so He also prayed for their sins unles they turned their backs to Him.

          I don’t believe my ‘physical and mental conditions’ have a lot to do with my beliefs. I’m not blaming God because my marriages failed. I don’t blame God because I have health problems, either. I know some people do blame God as they don’t want to look at the real reasons behind a failed marriage, or how come they are crippled either mentally or phsyically. I don’t like to see babies and kids with cancer, either. I do know that we all have the ability to get cancer, just need the right combustion in our systems to start it growing.

          {Denying gays marriage is homophobia which is an extreme and irrational aversion to homosexuality and homosexual people. Homosexuality is probably much older than the bible and prostitution} That doesn’t make it right. God burned Sadom and Gomora for that reason. Lot prayed and asked God to save the cities if he could find at least 10 people who believed. When Lot couldn’t, God allowed him and his family of 7 to flee the city. Lot’s wife looked back, even though told not to, and was turned into a ‘pillar of salt’. This should give you some insight into God’s view of homosexuality. God gave all of those people the right to choose how they wanted to live, just the same as He gives the rest of us. We all have the same choice. Just don’t keep shoving it down our throats. If you want to live that way, fine. That’s your choice. Just keep it to yourself. I don’t shove my way of life down your throat! I do, on occasion, though, stand up for my beliefs. Jesus was heterosexual, not homosexual. He healed all those who believed in Him. I also don’t believe that a homosexual should be allowed to preach the Gospel, either. I don’t believe Priests should be homosexual and/or have any sexual relationship as they took a vow of celibacy with God. Breaking their vows is not believing what they are preaching and teaching. We should allow priests and nuns to marry as that would put a stop to their inability to stay chaste w/o breaking their vows. Man is the one who made those laws, not the Bible.

  • ANDY SCHRAG

    I CAN ONLY RECALL THAT ACTUP WANTED DOMESTIC PARTERSHIPS MADE LAW IN CALIFORNIA. ONCE THEY GOT THAT THEY WANTED “MARRIAGE”.
    THE MAYOR OF SAN FRANCISCO TOOK IT UPON HIMSELF TO ORDER THE CITY CLERK TO ISSUE MARRIAGE CERTIFICATES IN VIOLATION OF STATE
    LAW. THEN THE STATE SUPREME COURT LEGISLATED GAY MARRIAGE FROM THE BENCH. TWICE THE CITIZENS OF CALIFORNIA HAVE SAID NO TO
    GAY MARRIAGES. SO WHAT NOW. THEY HAVE APPEALED THE LATEST SUPREME COURT RULING BY TRYING TO OVER TURN THE DECISION AS A VIOLATION OF THEIR CIVIL RIGHTS. THEY WILL KEEP SHOPPING UNTIL THEY FIND A JUDGE WILLING TO HEAR AND RULE ON IT BASED ON HIS/HER
    BIAS. HOW MANY TIMES MUST WE SAY NO ! WHY DO THEY KEEP LYING ABOUT WHAT THEY ARE SEEKING EACH TIME—JUST KICKING THE CAN DOWN THE FIELD. ENOUGH IS ENOUGH. WHY MUST MY CIVIL RIGHTS BE ABUSED AT THE BALLOT BOX AND IN THE COURTS!

  • conn

    Somehow it seems to me we have forgotten that the founding of this country was the states first-then we founded a government of the people and for the people. I keep hearing we wanted change-but I’m seeing a lot of government control of this-government control of that. What happens if and when our government should decide we need to continue to join things internationally-I fear we run the risk of finding ourselves with international courts trying our cases and making decisions for us.

    • Kim McGough

      Hey conn, right on, the more international control the less freedom, We don’t need the United Nations and their one world government, we don’t need the euro, we need to go back to being Americans, not black,white straight,gay,man.woman,hispanic, we need to live and let live treat everyone the same, let majority rule, only have laws that protects everyones right to live within a reasonable law, and let the states rule accordding to the constitution

    • Eric Bischoff

      Conn
      Well you can’t always have it just your way. If you are going to allow our executive and federal to continuously meddle in other country’s affairs then you are going to eventually have to answer to International laws and courts. If our US multi nationals are going to outsource overseas to escape our laws and abuse labor and environmental laws, they will eventually have to answer to International courts. If they are going to hire mercenary police forces to do their dirty work while they are stealing other countries resources all the while polluting and killing civilians, they will eventually have to answer to International laws and courts. If you don’t want that and you only want states to have power then it will take a revolution to stop the feds. They won’t go easily. What do you want?

      I don’t think you need to worry too much. As long as the security council exists, and the US refuses to honor the Rome Statute, the feds can do anything they want and they have been.

      The security council is like the fox guarding the hen house. The war mongers and abusers get to decide who can be prosecuted for war crimes.

  • Dale

    Listen, heterosexuals have been screwing up the
    sanctity of marriage long enough. Then we throw
    in “common law” marriage for the commitmentphobic
    and now the same sex crowd. What’s to stop
    heterosexual roommates from saying that they are
    a “couple” to get the benefits of common law “civil”
    unions? Can I get health insurance for my pets at
    my job and force them, with the governments help
    of course, to pay for it? After all, my pets love me
    and I love them, so shouldn’t we have the same rights?
    Or are you a petophobe? Quit being such closed
    minded, intolerant, hateful people. I think everyone
    and everything should be equal. That way we can
    all suffer in monotany together.

  • FlexSF

    Dale, you’re almost ninety years behind in the legalities involved regarding marriage. If you insist on believing that marriage is a privilege, granted by the state like a drivers license, then your dangerously ignorant. Numerous state courts have discovered that the fundamental right to marry, that has been established by SCOTUS in 1920 something, and extended to inter-racial couples in 1960 something.

    Below are a two links to court ruling that have made gay marriage a legal right, and not a drivers license. The second is a summary of the Iowa supreme court decision, and it may be easier to understand. I’ve omitted the links to the Connecticut, Vermont, and Massachusetts state supreme courts rulings that legalized gay marriage.

    http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF
    http://www.judicial.state.ia.us/wfData/files/Varnum/40209Varnumsummary.pdf

    This is a link to Ted Olson’s federal challenge to proposition 8. He uses the term “fundamental right” in his complaint. He is using that legal term from the California state supreme court ruling that was granted in May 2008.

    http://lawdork.files.wordpress.com/2009/05/perryvschwarzenegger.pdf

    If you continue to insist that marriage is not a right, but a privilege, you’re being impossible.

  • mrtin

    The same sex proponents continually say Americans are growing more accepting on this issue. Yet, they oppose allowing it to be voted on by U.S. Citizens. Is this because every time it’s put to a vote, it is voted down, showing the majority of Americans actually oppose same sex marriage?

  • Tim

    Homosexuals have the same rights to marry in any state as heterosexuals. They just cannot marry a member of their same sex. It is often missed that the same rights and restrictions apply to heterosexuals as homosexuals.

    No one can marry one who is under-age, one who is a close relative, one who is mentally incapable, or more than one person at a time. The government (which is of the people and by the people) has defined and restricted marriage for as long as people have been marrying.

    The people (who give the government its power) have varied what is acceptable over time. “Kissing cousins” used to lead to marrying cousins, but we don’t countenance that any more. There are probably people reading this who had grandparents or great grandparents that married at 14 or 15, but we don’t accept that any more. And we have never accepted members of the same sex marrying, but it did not need to be codified into law until this generation.

    The concept of regulating marriage is not new, and it is not based in hate no matter how long the restricted ones argue. Society doesn’t hate 14 year-olds; we just find it wise that they not marry. So when homosexuals verbally stomp their feet and shout that society doesn’t vote their way because we hate them, I find it as believable as if a 14 year-old is stomping and saying we hate teenagers. It’s ridiculous, and everyone knows it is not true.

  • http://yahoo clsygrm

    I don’t believe in same sex marriage. The Bible clearly states that marriage is between a man and a woman, not woman to woman or man to man. If God had intended same sex marriages, He would have only created Adam and another man instead of Eve, a Woman!

    Gay activists don’t care about anything except their own agendas, same as Atheists. Our country was established “Under God”, not under man. God stated marriage as man and woman so that is how it should stand. Gays, atheists and others who want to tear down our culture, norms, and traditions should stop and look at the Constitution, Bill of Rights, etc. Under God is written all through these documents.

    People in our country have become so jaded to morals that there aren’t very many left standing. Young people who don’t learn morals at home grow up without any. Young people who ‘like’ someone of their gender become ‘labeled as gay’ without any real reason behind it. After becoming ‘labeled’ they find themselves being shoved into the ‘gay arena’ and maybe really aren’t ‘gay’ at all. All people have thoughts that aren’t healthy from different areas. Satan puts ‘gay’ thoughts into one’s head – one doesn’t have to do what those thoughts indicate, though. God gives us a choice – no one puts the noose around our neck and says we have to be gay. Some kids get pushed into being gay by peer pressure. Others, because they are ‘curious’ and want to see what it is like. Others, because they feel they are the opposite sex trapped in the unwanted sexed body.

    To have our government tell us how to get married is wrong. Our government should have no role in marriage other than the laws governing marriage. We have laws on the books on how young a person can be to get married w/o parental agreement. We have laws against same sex marriage. We have laws on divorce and who should be given parental control of the children and how the community property is to be split. These are for our benefit as without them there would be no way to keep a bad parent from taking custody of the children, or for one spouse to control all of the property and income from a marriage and leave the other penniless. These laws should be the only ones governing marriage.

  • Peter Umapp

    How about Personal Liberties that are thrown under the bus when governments start micromanaging marriage, and more specifically divorce?

    How about lifetime alimony obligors whose every paycheck must be garnished, and who must petition a court everytime their incomes fluctuate? Examples incluse layoffs, change of careers, change of jobs to lower paying jobs, etc. How about governments that arrest, imprison, take away drivers licenses, take away passports, take away professional licenses, from such men? (I am not talking about child support here which is legitimate, I am talking about no-fault-alimony which can be ordered even in cases where an innocent spouse has to pay an adulterous spouse who filed for divorce in the first place).

    How about governments role in divorce and personal liberties? Can the two go hand in hand?

  • larry

    we really don’t need more government in our lives .. if this kind of stuff keeps on going , one day we will have to get permission to go to the bathroom ..

  • http://nicholsharvey50@yahoo.com harvey

    when our child goes off to college we are usually confident that he is equiped with all the good christain morals that we could teach him.we raised him in church taught him to love his fellow man, taught him to help his fellow man along lifes way. tell him to find a good christian girl to marry and then we send him off to iowa to go to college..think the is going to get an education.four years later he comes home ,you dont even know him any more.he has long dirty hair ear rings nose rings, rings in his eye brow and whatever that is with him you cant tell for sure whether its a boy or girl.so you take him in to the other room and ask him if hes married.heck no pop thats a thing of the past professor estin says thats not needed anymore, we have a civil union….and we wonder what has happened to the children they have no common sense no respect for themselves or anyone else.all they have on their minds is money and material things .one forth of them dont even want a family anymore.to busy with our carears.i think we had better quit sending our kids off to college and teach them at home.at least they would know up from down.send all the ignorant college teachers back to where they came foom……………..

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