Getting the State out of Marriage

Posted: May 18, 2012 12:01 AM
The topic of same-sex marriage has appeared on the front page of major news sources ever since Joe Biden, that giant of ideological thought, outed Barack Obama’s suppressed views on the issue.  The cover of the May 21 edition of Newsweek will feature a photograph of the President with the evocative words, “The first gay president,” and a rainbow-colored halo over his head.  The religious reference is notable.

Policy on this topic varies widely throughout the 50 states from normalized licensure to constitutional bans.  More battles are set to rage across the American theater, using the weapons of legislation, ballot measures, and the courts to advance or defend against the redefinition of matrimony.  Perhaps it is time to re-think government involvement in marriage altogether.

For the first 200 years, state marriage laws were enacted to manage the social model, with the American culture having a broad consensus on restricting polygamous, underage, close-relative and, even for a time, interracial unions.  Regulations were added to prevent the spread of diseases, determine blood type compatibility for pregnancies (see, protect people from unknowingly marrying someone who is already married, and to ensure that money, property and children remain within the family in the event of a spouse’s death or a couple’s divorce.  Accepted norms were also included to ensure family authority with medical decisions and the manner of disposal for a deceased relative’s remains.

The tracks for controversy were laid when these controls and assurances were tied to married couples, as recognized by the state.  This, of course, involves obtaining approval to marry by way of a license.  And just as pivotal, the union becomes official public record, usually at the county or city level.

But traditional home life in America began to change in the 1960s.  The rapid increases in divorce, living together without the benefit of marriage, and out-of-wedlock births created new demands for the application of laws that were originally intended for husband, wife, and children.  Divorce laws for the dividing of property and child support were broadened to apply to cohabiting couples who split up.  It did not take long before same-sex couples began to seek inclusion in the publicly recognized structure for their relationships.

Like anything that is conveyed to government, fairness eventually becomes the prevailing conversation.  A man and a woman who are married can reasonably expect to manage their financial, health, property, insurance, and funeral affairs within the framework of established family law.  And the only event that must occur for two adults to receive this regulatory support from the state is for them to marry each other.  So the barrier for same-sex couples is the acceptance of their being recognizable as married.

As with most political tournaments, conservatives are at a distinct disadvantage here.  Having relied on the state to codify a religious institution, Americans have subjected the defining of marriage to the inclination of the majority party.  Arguments on the senate floor are reduced to fairness versus tradition when the real argument is between fairness and doctrine.  To say the least, this latter position is difficult for a legislator to debate.

For conservative legislators to withstand the tsunami at the shore, it is essential that they first recognize that the primary goal of same-sex marriage advocates is to procure acceptance by the community for people who feel ostracized.  And, I believe that legislative actions can be taken that would show due respect to our gay citizens without surrendering to the liberal legislators who enjoy this issue as an opportunity to stick their thumb in the all-seeing-eye.

The concept of marriage did not originate with legislation.  People were “joined in holy matrimony” long before the State of Delaware bestowed authority to the first clergy, before Columbus sailed to America, and even before Tutankhamun was mummified.

Marriage is a longstanding religious institution, plain and simple.  If the state’s only role was recording weddings that churches conducted, there would be less of an issue here.  But the state licenses marriage, and thereby fixes the rules.  And defining a new type of marriage by the state violates the First Amendment establishment clause (“Congress shall make no law respecting an establishment of religion”).  Regulating the institution through licensing also violates the First Amendment free exercise clause (“Congress shall make no law ... prohibiting the free exercise .. of religion”).

So while the argument from the left is one of granting equal protections for one segment of our community, it seeks to do so by asking religious people to deny their spiritual sensibilities.  The casualty of government-redefined marriage is the sanctity of a sacred sacrament.

The impetus behind this push for same-sex marriage is the fundamental desire for community acceptance by America’s gay citizens.  Liberals have set out to use the plight of gay Americans for their political gain, simultaneously pitting them against conservatives and upsetting tradition.  And while it is more natural for conservatives to simply leave well enough alone, this is one of several brooding issues where conservative politicians should orchestrate a reasoned solution.

One option would be to retrofit a “designated party” replacement for the word “spouse” into all laws that grant authority for sharing property and medical decisions.  A designated party could be anybody; a loved one, family member, friend, or attorney.

Another option would be to discontinue government definitions, licensing, recording, and regulating of marriages altogether.  All couples, whether opposite-sex or same-sex, would be on their own to find a church or other organization that would perform and record their wedding.  Citizens would no longer be compelled to accept government recognized marriages that offend their discernment.

In this scenario, matters such as protection for minors and care for children would continue to be covered by existing laws.  The sharing of property, inheritance, and medical decisions between consenting adults could be addressed with standard, private, legal contracts.  And, as far as recording and reporting the union; Well, that’s why Joe Biden’s predecessor invented the Internet.

While liberals exploit them in the public square, gay Americans are not the stereotypical group of helpless victims in desperate need of pity and government salvation that Hollywood portrays five nights a week.  They are, of course, everyday people amongst us who deserve to be treated with common courtesy and unremarkable decency.  Any policy solution engineered by conservatives to resolve the same-sex marriage challenge must include a welcoming comportment on a genuine level for our fellow, gay citizens.  Otherwise, we could win a battle and lose a war.