Marriage & the state (reprise)
06.06.2006Technorati tag: same sex marriage
About two years ago I wrote an op-ed piece on marriage & the state. I think it's still exactly what I'd want to write about the subject today. I've reproduce it below:
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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 11:35 AM
Comments
There is one avenue you didnt cover though, and I think it is a big one. I don't really look at marriage as a spiritual union, nor do I look at it as a civil union. I don't care if Uncle Sam or Jesus Christ or Buddah recognize my signifigant other as my wife. Their eyes don't matter to me. I look at marriage as the starting of a family and a promise of uniting my life with someone else.
For me it is mostly a vow to let the other person know I care enough to make the commitment.
Now the part of who's eyes we havnt talked about is marriage in the eyes of our SOCIETY, (not church or government, but our structure as a race of beings...our species) Marriage, maybe in some people's eyes, is the guarantee not only will our species continue on, but morality and civility will be passed down in a family unit setting. When i say that, i mean its a gaurantee that someday i may be a grandfather, and my genetic history and values will be passed down thru genetics and thru passed-down behavioral family values that keep our society stable. In short, marriage insures that people will be good and strive to be better...i guess.
Like, marraige is the promise to humanity that our societal structure will continue on thru the generations.
Now, i know these points can be argued, like "Can't same sex couples still do this thru adoption? Arent same sex couples just as much a part of society" yes yes and yes. But, any one would agree that it isnt universal across the board, and i think that is why the societal argument (to some) has merrits.
Now i will be Counter arguing that some couples get married and choose to not hgave kids negates these types of statements...(by the way, i'm just throwing out oncepts, i really have no stance on this, i just am intrigued by the subject)
maybe that is why so many people are against same sex marriages - because it goes against A. the perpetuation of our species naturally (adoption being an exception) and B. It goes against that societal standard that has been a precident thru the millenias.
Now, who is to say these standards need to be preserved? Not I...but I can see why people would argue that as a factor - Church or State asside.
I know this is a crazy analogy, but hear me out - imagine an organization, like...i dont know, the Freemasons let's say...now they have had the same rituals and standerds for a thousand years or whatever. Then one day, they decide to make changes. Changes to be more inclusive. So what happens is, for the people that feel like their inclusion had more meaning because of the strict guidelines, it somehow now becomes less meaningful for them.
Now dont get me wrong, i'm not advocating against same sex marriages, but i can see how some people would feel that altering what it means to be "married" for one couple somehow "lessens" the meaning for them. I personaly dont equate things that way - i could care less what other people do as long as things dont affect me.Which is why banning same sex marriages is stupid. Why tell someone their love can't be put on record?
So in Devil's Advocacy, mabe the issue isnt changing what it means to be married, maybe instead of changing what has been the standard for hundreds of hundreds of years, they make something different but equal to.
Like:
Sarah and Bob got MARRYed but Steve and Jim got _______ed. Get it? Maybe we just need a seperate institution to recognize the differences.in a way i think it would be more respectful to everyone, not in a "seperate but equal" way, but sometimes in life special cases require special accomodations.
I don't know. or screw it, let anyone get married who is it hurting anyway?
Posted by: Ryan at June 6, 2006 04:00 PM
Oh and if i didnt say this before, despite my additions, I agree with all of your points.
Posted by: Ryan at June 6, 2006 04:15 PM
The bottom line, for me, is that the State (that is, government) should be limited to only a few minimal things. And it should regulate neither procreation nor love. Government also shouldn't be in the business of creating a social utopia. Government should only be in charge of regulating contractual relationships between two people — and enforcing any breach of contract dispute. Period.
I'm not in favor of the state recognizing same sex marriages. I'm opposed to the state recognizing ANY marriage as anything other than a civil unions. What churches, other civil society groups, or individual citizens choose to recognize is their own affair.
Posted by: mcentellas at June 6, 2006 04:36 PM
Oh yeah, that's actually a better way of looking at it. Instead of the issue being "should the idea of marriage be changed?" the real question is "should'nt the State just stay out of it entirely, "
Also, dont think that i meant the State = Society, or that the State should be the gaurdians of the stantions of our race's moral and geneological futures...when i said "Society" i meant the People. Government asside, Do the People have a right to dictate what a marriage should be? i guess the voice of the people = the State so maybe "no".
i guess if the government and the church stay out of "marriage", then a new question comes up: who carries the burdon of maintaining the institution (of marriage)? i do like to believe it is an institution (if only in ceremony). I would like to think the married couple could govern their own marriage, but we know this isnt in every case true. I guess there should be something defending the sanctity of the contract / vow / promise, dont you think? Something that keeps the idea of marriage more precious?
Posted by: Ryan at June 6, 2006 05:24 PM
First, I've no intention to ask religion to stay out of marriage. Just the state. People can get married in civil ceremonies all the time. Even in many Catholic countries, citizens are REQUIRED to marry in a civil ceremony (by a judge, not a priest), regardless of whether they will also marry in a church (the state doesn't recognize religious marriages, only the civil ones). I propose that.
I think people can decide what they want marriage to be. For themselves. Not for others. For themselves. And, certainly, the state (a liberal state, at least) is required to prevent society from violating the basic/universal rights of any single invidual. So even if 99% of the population believed that only men & women can qualify for civil unions, the state should protect the rights of that 1%. Even if it was only two individuals, it should still protect their rights from the tyranny of millions.
Morality (in the state's eyes) is NOT a popularity contest. It doesn't matter how many people would condone slavery. It's still wrong.
As for defending the sanctity of hte contract of marriage. Again, see my original view on what a marriage (in the eyes of the state) is. Divorce law tells you a great deal about how the state defends the marriage contract -- it treats like any other civil contract dispute. So why not treat the original compact the same way?
Posted by: mcentellas at June 6, 2006 06:14 PM
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