Driving around running errands today, I overheard a midday discussion on the local NPR station (Baltimore’s WYPR 88.1) about same-sex marriage laws. It reminded me of a column I wrote for the WMU college paper about five years ago. I dug it up. I still believe in every word of it, despite more than two years into my own marriage. I’m reposting it here, unedited, in its entirety. Enjoy.
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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—marriages.
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ADDENDUM: If you’re not able to make an intelligent comment, I’m not going to post it. Call it censorship if you like, but this is my personal internet space. Comparing homosexuality to beastiality is not an intelligent comment. I suppose someone could want to marry his/her pet goat. But marriage also requires mutual consent. Homosexuals can consent to marry each other, pet goats cannot. But, quite frankly, I don’t see why it’s anyone’s business—let alone the government’s—to tell me (or anyone else) what I can & can’t do in my own home, w/ other consenting adults. If you honestly believe that the government should enforce religious morality, I suggest you move to Saudi Arabia, Iran, or pre-2001 Afghanistan.
"What kind of government agency would test couples to ensure they actually “love” each other?"
The INS, of course: http://blog.wired.com/sterling/2009/04/bruce-sterling.html
Good article. I like the final paragraph. I like better the Bolivian system where one can marry por lo civil and/or por la iglesia. A couple can choose to do one and not the other. They can choose to do one in one country and the other in another country. There is not the tie you point out that exists in the U.S. where the minister, priest, rabbi or whatever combines the two into one -- and thereby confuses the whole issue.
Actually, in Bolivia you **can't** choose to either be married in a church or in a civil ceremony. The state ONLY recognizes civil marriages. Most people actually choose to opt out of the religious ceremony entirely (they are very expensive), and many actually even skip the civil one as well, preferring simple cohabitation.
This "liberal democratic society" you speak of, which party do I vote for to get this? Looks like I am being told the world is too dangerous and complicated to allow me to make my own decisions.
Everyone wants to tell everyone else how to live then get all offended when someone else puts in their two cents. I dont recognized your conceits as being better than any other persons'. You feel you have the authority to deny someone the right to have a religious person of their choosing officiate over their marriage, other people want to deny the right of same-sex couples to marry.
I dont know about your state, but in Louisiana a couple does not need any help if they dont want it to get married. You just fill out the form and both sign it. A Religious marriage ceremony is different of course. but its not like the law recognizes one over the other.
@dv: I'm not arguing that the state should prevent people from getting married in churches (I was married by a Catholic priest). I'm suggesting that there's no reason why the state can't instead simply require civil unions for everyone. In many ways, it does: You can't get married in a church w/o first obtaining a marriage license (usually from the county clerk's office), and the ceremony doesn't really "count" until bride, groom, and witnesses have signed the appropriate forms (we did ours on our way to get our picture taken). If so, then I don't see any objection to same-sex marriages, other than those meant to impose a **religious** definition of "marriage" on the state. As for the party you should vote for, that's up to you. But I might suggest the Libertarians.
I'm totally against gay marriage. Marriage is between and a man and a woman. Period. You can't erase thousands of years of worldwide tradition just because a few don't like it.
As I see it, marriage is a contract between a man and a woman, and the state has the obligation to see that it be fulfilled.
Actually, Anon, marriage has not always traditionally been between only "a man and a woman" (polygamy, polygyny, and polyandry are alive and well throughout the world). But even if that were so, I don't know why the state has an "obligation" to enforce "traditions." Should it enforce feudalism, monarchism, or slavery? Those things have a long history throughout the world, too.
Anon:
In addition, many cultures have a more diverse gender system (not just "male" and "female"), recognize/respect people who may be attracted to people of the same sex or to both sexes in terms of their social roles, and so forth.
The binary, either/or system in the U.S. is actually *not* a worldwide phenomenon.
Interesting post Miguel... Kudos to you for putting forth a rational perspective on irrationally debated subject.
No, mcentellas. I don't advocate the state enforcing feudalism, monarchism, or slavery. Those "traditions" are done through force. Marriage is a "voluntary" contract between a man and a woman, at least in the judeo-christian world. In my view, the state has the obligation to see that contract (as any other voluntary contract) be carried out.
@Anon: I agree that state should enforce contracts, including their potential dissolution (i.e. divorce). And to that end I think the state does a good job--and should continue to do so. But the state **shouldn't** prevent other consenting adults from also entering into similarly voluntary contracts merely based on how society has historically chosen to define that contract.
We'll just have to agree to disagree on this one. Marriage between a man and a woman has been, I think, society's most important and lasting institution for a reason.
I think "sex for procreation" has been society's most lasting institution (since it provides for the continuation of the species). Marriage is just a social construct (particularly the modern ceremonial formula as developed in the West). Marriage isn't required for procreation, as I'm sure you're well aware.
I heard a editorial on NPR today and the individual proposed a novel compromise that reminded me of Miguel's comments on the civil versus religous marriage systems in Bolivia. While Bolivia certainly does not allow same-sex civil marriages (well maybe it will under the new CPE) the editorialist proposed removing the US governments' role from "religous marriage" all together. The states and Feds would recognize civil unions between heterosexuals and homosexuals, but not religous marriage. That would take away the gay rights argument that civil unions are a separate-but-unequal cop-out, and assuage conservative concerns about the religous sanctity of marriage. Then religous organizations could decide who they wanted to marry in the religous sense and the State would not discriminate against people because of their sexual orientation. Any thoughts from rational and fair minded folks?
If sex is an institution, beware of those schools that have the word "institute" included in their names! Even Obama believes that marriage is between a man and a woman.
I'm not arguing that we redefine the word "marriage" to anything. I'm arguing that the government should get out of the business of regulating marriages entirely, and leave that to churches or other private institutions. Instead, the government should only regulate civil unions (which may or may not also be "marriages").
Something has always puzzled me: why does the left normally show libertarian tendencies with morality and culture (ex. marriage, homosexuality, drugs, abortion) while the opposite in economic matters (high taxes, larger government, etc). With the right, it's normally the opposite.
Yep, I prefer consistency, too. That's why I like Reason magazine so much.
http://reason.com