Why is the state involved in marriage at all?

posted at 10:10 am on August 7, 2010 by Ed Morrissey

Now that a judge has issued an incoherent ruling that the federal government has a 14th Amendment interest in the definition of marriage after more than 140 years of apparent disinterest, it may be time to reconsider government involvement in marriage entirely.  Townhall’s David Harsanyi offers the argument that government involvement may do more harm than good to the institution, and results from a historical mistake in the first place.  Time to get on with the divorce, Harsanyi insists:

In the 1500s, a pestering theologian instituted something called the Marriage Ordinance in Geneva, which made “state registration and church consecration” a dual requirement of matrimony.

We have yet to get over this mistake. But isn’t it about time we freed marriage from the state?

Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman — or no one at all — and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives.

I certainly don’t believe that gay marriage will trigger societal instability or undermine traditional marriage — we already have that covered — but mostly I believe your private relationships are none of my business. And without any government role in the institution, it wouldn’t be the business of the 9th U.S. Circuit Court of Appeals, either.

Be sure to read it all.  I’ve written about this repeatedly over the last several years, and while I don’t think that this is an easy path to adopt, it’s going to be the eventual solution.  Not only does it take government out of people’s private lives, it also means an end to a divisive and essentially meaningless debate — and it protects houses of faith and ends a potential government interference in matters of religion.

Let’s first dispense with the idea that the government protects the sanctity of marriage.  It doesn’t; if government ever did that, that ended with no-fault divorce.  Marriage, as run by the government, is the only contract in this country that can be broken by one party alone with no adverse consequences.  (Well, that and professional sports contracts, I guess.) Partnership agreements in the business context would disintegrate without at least the threat of government enforcement of its provisions.   Marriage as run by government has been disintegrating for decades, as the divorce rate shows, and that has nothing to do with gay relationships.

We would do much better to require people to create partnership contracts in the civil context than get marriage licenses for issues like property sharing, access to family, and so on.  If people want to live together and share their lives to that extent, it’s healthier and much less confusing later to have those issues expressly spelled out in an agreement up front, just like any prenuptial agreement today.  If two people don’t want to go that far in formalizing their relationship, then they shouldn’t be considered married anyway — and shouldn’t get access to “palimony” and have debates over oral contracts, and so on.  If you don’t get it in writing, it doesn’t exist, in the context of personal partnerships.

Then, if people want to get “married,” they can go to the institutions that actually care about marriage: churches, synagogues, mosques, temples, and so on.  Marriage can be a private, faith-based recognition of a sacramental relationship that exists outside of the civil context entirely, and houses of faith can set their own requirements as to what it means and who can participate — just as they do now.  Not only does that protect the sanctity of actual marriage much more than a government, but it also means that government has no way to poke the camel’s nose of intervention into the religious tent, as it were, to force houses of faith to conduct marriages that violate their tenets in the name of fairness.  Divorcing marriage from the state and dissolving the partnership between government and religion benefits the latter more than the former.

Let government define and enforce contract law, not marriage.  If we don’t follow that path, people will shortly become very unhappy about the eventual government definition.


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