Marriage & the State

11.18.2004

My weekly Herald column runs today (it's online here). This week, it's on the same-sex marriage issue. Below's the original version:

There’s a great deal of controversy surrounding the issue of same-sex marriages. Most of the debates, I’m sorry to say, miss the point entirely. At least, that is, if we’re discussing the government’s role in regulating same-sex marriages. Because whatever we may think about homosexuality, or sexual mores in general, discussions about a government’s proper and legitimate must be kept clear.

In a liberal democratic society, the kind envisioned by John Locke and John Stuart Mill, the government’s role should be minimal. That is, it ensures the basic social necessities — like common defense, perhaps some infrastructure, etc. — while keeping its hands off from people’s personal lives, including their religious, moral, or ideological convictions. In terms of interpersonal relations, a government’s proper role is to enforce contracts, specifically, material contracts. That’s it.

And what does this have to do with marriage? Everything.

From the state’s perspective, marriage is nothing more than a property contract between two people. That’s why divorce laws focus almost exclusively on the material relations between individuals. Who gets the house? Who gets the car? What percentages of salaries are owed in compensation? It’s not very different than settling a dispute between former business partners.

But what about adultery? Isn’t that grounds for divorce? In most states, yes. Unless those states have no-fault divorce laws — similar, by the way, to no-fault car insurance laws. But even when adultery is grounds for divorce, it’s not actually a criminal charge, is it? You’re free, after all (at least, legally), to cheat on your lover, just not on your wife. But even then adultery is merely treated as a material breach of contract, terms under which the other party is allowed to freely break the contract on favorable terms.

So what does this have to do with same-sex marriages? Again, everything.

If the state can only enforce material contracts between people, on what grounds can it properly discriminate against some category of people entering into such material contracts? The answer: none. And the arguments usually given in defense of opposite-sex marriages are inadequate.

It’s not the state’s role to regulate love any more than to regulate aesthetics. Principally, because “love” is a personal emotion that belongs to the private sphere of the individual. But could you imagine the difficulty of a government actually enforcing marriage as only between a couple that “loves” each other — as opposed to people marrying for money, because they’re single parents, to obtain a green card, or a host other possibilities? What kind of government agency would test couples to ensure they actually “love” each other?

It’s also not the state’s role to ensure that only couples that plan on bearing children should marry. And not just because such questions would infringe on the personal reproductive rights of individuals. But imagine the implications. The state would have to not only turn down applications from same-sex couples, but also from the barren, the elderly, or the couples who simply don’t intend to ever raise their own children.

Nor is it the state’s responsibility to only marry people who are less prone to divorce. The state is not an insurance company and marriage is not a health care policy. Not all divorces are predictable. And even when they are, people are allowed to make mistakes, even predictable, disastrous ones — it’s called personal choice.

Finally, no liberal state has the authority to protect the “sanctity” of anything, since sanctity is a religious concept presupposing some divine source of authority. Such an argument violates the intrinsic separation of church and state in a liberal democratic society. I have no problem if certain denominations refuse to marry same-sex couples, since religion stands outside the state’s sphere. But a secular state has no authority to use the policies of a church to dictate its own public policies.

See, I find arguments in favor of “civil unions” for same-sex couples as utter copouts. Not just because they continue to discriminate between heterosexuals and homosexuals. But — and perhaps more importantly — because they continue to mask the fact that government continues to protect the “religiousness” of a specific institution. I don’t want marriage expanded to include same-sex couples; I want “marriage” stricken from the state’s vocabulary.

It’s always rubbed me the wrong way when, at weddings, the minister announces those few words: “by the power vested in me by the state”. Think a moment. What just happened there? The minister, a religious figure, has just invoked a state-sanctioned authority — he’s just acted as an agent of the state. Why are we comfortable with a merging of state and church power in this particular instance? Many of us who would fight to prevent the merging of church and state in our public schools, our legal system, or our FCC regulations, nevertheless openly accept the merging of state and church power in our most personal of relationships — our marriages.

Posted by Miguel at 07:04 AM

Comments

Great article Miguel! Any reaction yet from the kids at WMU? I'd be curious, especially since there was an anti-marriage (that's how I'm phrasing the anti-gay marriage issue these days) amendment on the MI Const this past election. Did that amendment pass?

Posted by: Patrick at November 18, 2004 10:41 AM

Miguel,

That was a fantastic piece. I'm too tired to properly comment, but well done.

-Josh

Posted by: joshu at November 18, 2004 10:41 AM

I've heard from one of my students, actually, who liked the article & specifically emailed me about it. Maybe I'll hear more tomorrow, eh?

And, yes, that amendment did indeed pass. Sad, eh? Of course, it passed everywhere, but mostly because the lobby groups spent almost no money on anything but the "anyone-but-Bush" campaign. If groups like Move.org or Soros or whatever had spent a few of their millions on local issues or legislative races, they might've actually had an impact on something. In hindsight, I actually find the left's overzealous focus exclusively on presidential politics a bit troubling. It's almost as if they believe that electing a new "leader" (what's that German word for that, again?) would be enough to wave a magic wand over all the problems.

Posted by: Miguel [TypeKey Profile Page] at November 19, 2004 12:41 AM

Interesting way of thinking. My problem is I cannot decide what I think about same-sex marriage. It's like I don't give a damn. Hmm, weird ...

Posted by: Nenad at November 19, 2004 08:19 AM