While the public debate surrounding homosexual marriage rights rages in California, Washington D.C., and even here at Vanderbilt, Unitarian clergy are being shuffled off for booking in New York for marrying gay couples while mayors and county clerks in other cities grant marriage licenses without fear of pilice reprisal.
I believe that the true focus of the debate is entirely misguided. Rather than bickering over who qualifies for the legal protections afforded married couples, we should be asking why the government is involved in marriage in the first place. There is no question that marriage has played an intricate and important role in shaping Western civilization, but that is by no means a mandate for government intervention.
Ask any married couple if the government’s opinion of their relationship is really all that relevant, and they’ll almost certainly tell you no. Indeed, it is very interesting that the only people who really seem to care about the government’s opinion of their relationship right now are homosexual couples. Granted, there are certain economic reasons for such recognition, but I believe it would be foolish to suggest that attaining a certain air of legitimacy is not the central issue of the debate.
Ironically enough, those opposed to gay marriage argue that the serious, holy nature of marriage should apply only to certain sanctified or otherwise privileged relationships (read: heterosexual relationships). Empirical evidencesuch as a divorce rate of over 50% for first time marriages and large numbers of extra-marital affairs, seems to suggest that many heterosexuals do not take marriage all that seriously, even if they pay it tremendous lip service.
The fight about whether or not marrying homosexuals is ethical has a longer history in religious circles than in secular ones, but the public debate has breathed new life into the battle. While Unitarians and other denominations have been marrying homosexuals for decades, New York saw fit to arrest several clergy involved in performing a highly publicized “marriage-athon” on March 15th of this year for marrying couples without a legitimate license under a criminal statute which does not differentiate between civil and religious officials.
When asked for comment, the Human Rights Campaign spokesman, Mark Shields, was quoted by CNN as stating that “it’s ridiculous that prosecutors would spend their time charging anyone with a crime who is simply trying to unite two people with basic rights and protections.” Not only does this statement already assume you agree with the conclusion that homosexual marriage should be allowed, it also implies by using the word “ridiculous” that a reasonable person must agree with the conclusion, which is not the case. Your opinion on gay marriage is not a litmus test for reasonability.
The real problem with the arrest, which none of the gay rights proponents brought up, is that it seems to be a violation of the separation of church and state. The marriages were bestowing clerical approval, not legal rights, and thus they should not fall under the jurisdiction of the government. This messy situation underscores the importance of separating the legal issues surrounding marriage from the religious ones.
If two people desire to get married and share assets or custody of children, then there is a legitimate role for the government in enforcing these contracts no matter what the sexuality of the partners and no matter what the clerical approval. Such a model for marriage would require a larger number of pre-nuptial arrangements, but as the aforementioned divorce rate will attest, many Americans could use a little more time to consider the arrangement into which they are entering before taking the plunge.
This arrangement also conveniently takes care of the argument that if we allow gay marriage, then we must then allow people to marry animals, minors, or whomever or whatever they desire. Minors and animals are currently prohibited from entering into legal contracts, and thus could not enter into marriage either under the current system. Group marriage, on the other hand, would be treated no differently than the formation of a corporation. The legitimacy of the argument that group marriage exploits women varies on a case-by-case basis, but all current laws about being coerced or forced into a contract would still apply. Thus, no one could be married against his or her will.
This whole system may seem a bit far-fetched, but consider for a moment that the law already concedes certain key aspects of the arrangement. For instance, common-law spouses are already recognized under the law to take into account those couples who have instituted marriage in practice, but not in name. Essentially, these laws identify that an implicit contract has been made between the couple simply by living together and sharing assets or resources for a certain number of years.
In this case, the law recognizes that the social aspects of marriage can exist without the legal hallmarks ever having been performed. In a sense, all marriages would simply become contractual obligations in the eyes of the government without allowing the government to pass judgment as to the religious or ethical considerations of any relationship.
Without any compelling reason for governments to recognize or adjudicate marriage from the outset, I believe that the debate over recognizing gay marriages is misguided at best. Empirical evidence suggests that marriage is taken less seriously now than ever before, so it seems hypocritical for anyone to suggest that the mystical, holy nature of the institution mandates government regulation. With the government out of the marriage equation, the courts and legislatures all throughout the country will have more time to worry about more pressing issues like whether or not it’s legal to sue McDonald’s or Nabisco for giving us the huge rear-ends which precipitated all those divorces to begin with.