The kritocracy has again attempted to extend its rule by declaring that a ban on gay marriage is unconstitutional under California law. The failure to constitutionally ban a right now makes any unstated right a positive right. Under this interpretation how can governments ban most things? This is actually a libertarians dream come true.

What strikes me as strange is that I don’t think any of these state governments have recently banned gay marriage. What they have done is prohibit non-traditional civil marriages? Civil marriages define a civil contract and define the obligations of the contracting parties. They have nothing to do with sanctifying a marriage. That is done in a church and it is not the business of government. The joyous celebration of marriage has historically occurred in a religious context. To see couples celebrating on Caesar’s steps because their names may be joined on the tax roll seems odd to me.

This whole topic is blurred in the press where civil marriage is presented as a moral question. The appropriateness of a church marriage is a question that should be answered by one’s religion. That’s the moral question. The legal question is whether or not the rights and obligations of the civil marriage contract should be extended to gay partners, or for that matter any two or more individuals. After all, we can’t ask same sex couples to prove they are gay before they marry.

The question should be, what are the benefits and cost of permitting same sex marriage? Assuming that the law has no impact on church marriage, potential same sex civil marriage couples must perceive that the benefits of a state approved marriage outweigh the costs. What are those benefits? They must believe that they will be receiving additional state mandated benefits if they are civilly joined. These might include access to fringe benefits, social security benefits or other federally or state funded programs. In other words, the rest of us are going to pay to support same sex marriage.