Government and Marriage

C.K. Dexter Haven: Sometimes, for your own sake, Red, I think you should have stuck to me longer.
Tracy Lord: I thought it was for life, but the nice judge gave me a pardon.
C.K. Dexter Haven: Aahh. that's the old redhead. No bitterness. No recrimination. Just a good swift left to the jaw.
--The Philadelphia Story

Strong words taken from Justice Scalia's dissenting opinion of the Supreme Court's DOMA decision earlier this week. His main point is that the Court does not have standing in this case. The question of the legality of gay marriage is one for the states, not for the Court, to decide.

He makes a good point. And I am sympathetic to federalism arguments.

But the complicating factor here is that government is currently an originator of marriage contracts. If government is involved by law, then there is an argument to be made that equal protection applies.

This is the problem that should be addressed. Government is involved in writing marriage contracts, an endeavor in which it has no lawful business. Marriage is a contract between individuals. It is a private agreement. Government's role is to see that such contracts are enforced and to protect against fraud. It has no business brokering marriage contracts.

To truly 'let the people decide' as Justice Scalia argues, remove government from the marriage contract origination business.