David Harsanyi

In the 1500s, a pestering theologian instituted something called the Marriage Ordinance in Geneva, which made "state registration and church consecration" a dual requirement of matrimony.

We have yet to get over this mistake. But isn't it about time we freed marriage from the state?

Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman -- or no one at all -- and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives.

I certainly don't believe that gay marriage will trigger societal instability or undermine traditional marriage -- we already have that covered -- but mostly I believe your private relationships are none of my business. And without any government role in the institution, it wouldn't be the business of the 9th U.S. Circuit Court of Appeals, either.

As the debate stands now, we have two activist groups trying to force their own ethical construction of marriage on the rest of us. And to enforce it, they have been using the power of the state -- one via majority rule and the other using the judiciary (subject to change with the vagaries of public opinion).

If marriage were freed from the state, folks at The New York Times editorial board could avoid making outrageous claims like "marriage is a constitutional right." (Apparently, anything can be a constitutional right at The Gray Lady, as long as it's not mentioned in the Second, Fifth or 10th amendments.)

Even new Supreme Court Justice Elena Kagan recently wrote that "there is no federal constitutional right to same-sex marriage." It might be fair and it might be the decent thing to do, but a constitutional "right"?

If marriage were a private concern, U.S. District Chief Judge Vaughn Walker would not have ruled that California's Proposition 8 violated the Constitution's guarantees of equal protection and due process, because Proposition 8 would not have existed.

Walker never would have to sit in judgment of Americans and claim that "moral disapproval alone" was behind this plot to define marriage as a union between one man and one woman.

Moral disapproval alone?

As best as I can tell, support for gay marriage is tepid. A recent CBS poll shows that 42 percent of Americans support marriage rights for gays and lesbians, though no state has been able to pass a referendum to legalize same-sex marriage.

Does that mean that approximately half of voters -- and all 7 million Californians who voted for Prop 8 -- have no logical or legal reason for believing that marriage should be between a man and a woman other than bigotry?


David Harsanyi

David Harsanyi is a senior editor at The Federalist and the author of "The People Have Spoken (and They Are Wrong): The Case Against Democracy." Follow him on Twitter @davidharsanyi.