Why is Government in the Marriage Business?

While driving to a Christmas party Saturday we listened to the radio report of Congress’s vote to repeal Don’t Ask Don’t Tell. 

I’ve been told that I am a gay advocate because I’ve long thought DADT was a bad policy for the country and I also, strongly, support Gay Marriage.

While DADT still has a few months to go before the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify to Congress that ending the policy will not impact the military, it is, for all intent and purpose, a dead policy.  With the passing of DADT, the last hurdle for Gays and Lesbians to fully enjoy equal protections under the law of the country is the right to marry.

This has been an issue that I’ve thought long and hard about, and have sought a cogent answer that does not devolve into essentially declaring opposers of gay marriage as small-minded bigots that feel they need a law to protect them from themselves, because without a law to stop them, they would pull a Larry Craig.  So I’ve tried to understand their argument and see it through their prism.  Newsweek ran an article on Brian Brown, founder of the National Organization for Marriage, and his organization’s (apparently the leading anti-gay marriage org) efforts to oppose Gay Marriage.

He spreads NOM’s message that preserving “traditional marriage” is necessary to protect families and ensure religious freedom. “We believe the marriage issue is the last frontier in the fight,” he says. “We have to hold the line there.”

According to Brown, “Marriage is a public good. If you change the definition of marriage, you don’t just change it for the gay married couple down the street, you change it for everyone,” he says. If gay marriage is allowed, “then the state is essentially saying that my views on marriage, and the majority of Americans’ views on marriage, are equivalent to discrimination…It profoundly affects me if my children are taught in the schools that my views on marriage are bigoted. It profoundly affects me if the church that I’m part of is treated in the law as bigoted. And, ultimately, same-sex marriage is not true.”

Further, NOM has handy-dandy talking points for people to help them articulate their disdain for Gay Marriage:

Marriage is between a husband and wife. The people of [this state] do not want marriage to be anything but that. We do not want government or judges changing that definition for us today or our children tomorrow.
We need a marriage amendment to settle the gay marriage issue once and for all, so we don’t have it in our face every day for the next ten years.
Marriage is about bringing together men and women so children can have mothers and fathers.
Do we want to teach the next generation that one-half of humanity—either mothers or fathers—are dispensable, unimportant? Children are confused enough right now with sexual messages. Let’s not confuse them further.
Gays and Lesbians have a right to live as they choose; they don’t have a right to redefine marriage for the rest of us.

OK, got it.  So what about civil unions?  Several states recognize civil unions.  Even many conservatives have come out (no pun intended) and said they are pro-civil unions for gay and lesbian couples but are not for gay marriage.  Why wouldn’t civil unions resolve this issue?  Well apparently there are some well-founded reasons civil unions don’t provide the easy answer either.

Equality Maryland puts forth the following:

The difference between marriage and civil unions, however, is not merely semantic. Civil unions end at the state line. A couple united in a Vermont civil union are legal strangers once they leave the state. Should they travel to Maine the couple is no longer legally related to one another as family. Furthermore, civil unions are not honored by the federal government or any other country . Married couples can sponsor their foreign-born spouses to stay in the country. They can inherit their partner’s social security, Veteran’s, or disability benefits. They may file joint Federal tax returns. Couples united in a civil union have no access to the more than 1000 Federal rights and no potential to receive them. Finally, civil unions actually destabilize the institution of marriage by cobbling together separate, unequal institutions and creating a legal quagmire with myriad grey areas. Vermont and Virginia are actually battling over which state’s court has jurisdiction in a custody battle stemming from a Vermont couple that dissolved their civil union, with one half of the couple moving to Virginia.

Well, that is problematic to say the least, but the whole idea of civil unions got me thinking about marriage in general and why the government grants marriage licenses in the first place.  It’s interesting (at least to me – an avowed agnostic free thinker) that I would find support for the argument against government licensure of marriage from a Christian website:

  •  The definition of a “license” demands that we not obtain one to marry. Black’s Law Dictionary defines “license” as, “The permission by competent authority to do an act which without such permission, would be illegal.”  We need to ask ourselves- why should it be illegal to marry without the State’s permission? More importantly, why should we need the State’s permission to participate in something which God instituted (Gen. 2:18-24)? We should not need the State’s permission to marry nor should we grovel before state officials to seek it. What if you apply and the State says “no”? You must understand that the authority to license implies the power to prohibit. A license by definition “confers a right” to do something. The State cannot grant the right to marry. It is a God-given right.

Wow!  I agree 99% with this!  Except for that “God instituted” mumbo jumbo, but what the heck, I’ll play along!  The point is, government involvement in marriage, at least for America, had its origins in England, introduced by the church in 1215.  By the 14th century, a bond (or a tax/fee) was placed with the district for the crown to obtain a marriage license.  This practice was continued in colonial America and since the American identity was formed over 160 years or so of colonial rule, we carried over the custom which continues today.  Marriage licensure is a money maker for the state – think about it.

However, if you think about it with just a hint of objectivity, shouldn’t the government be in the business of issuing civil union licenses for couples – which define and protect the rights of partnership, for legal and tax reasons and let the church (or religious organization of choice) be able to define a couple’s marriage status?  This is a true application of separation of church and state.  As far as I can tell, marriage implies a union recognized by the church and the state.  A civil union is one that is only recognized by the state (and religious institutions that choose to recognize it).

As an amateur Libertarian, I don’t believe the government has any right to interfere with the basic premises of the Declaration of Independence – Life, Liberty, and the Pursuit of Happiness.  By systemic government denial of homosexuals to form unions recognized by law throughout the country, we the people are acting in a way that runs counter to our basic founding principles.  Eventually this issue will be settled in court – largely due to the unequal treatment under the law with select states recognizing gay marriage and the majority of states refusing to recognize the legality of those unions.

Ultimately, this is not about being pro-gay marriage or anti-gay marriage.  It boils down to equal treatment under the law and fairness for all citizens.  If there is a religious argument to made against gay marriage, then get the government out of the marriage business.

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One Response to Why is Government in the Marriage Business?

  1. Adam Parker says:

    As a Christian, Sean, let me say that I am absolutely in agreement with your conclusion. The only caviat I wish to make is that if the state stops doing marriages, then if a church decides to do a religious marriage ceremony that the state is unconcerned with, then they ought not to compel the clergy to perform marriage ceremonies to which they have moral objections.

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