Marriage and the State

by Sean Turner  

The recent 4-3 ruling by the Massachusetts Supreme Court regarding same-sex marriages has fueled emotions on opposite ends of the ideological spectrum.  According to the ruling, written by Chief Justice Margaret M. Marshall, "It cannot be rational under our laws and, indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation."  Gay rights groups and their supporters have hailed the decision as a momentous one, which will open the door for other states to recognize same-sex marriages.  Many Republicans and conservatives, however, decried the ruling and reiterated their call for a constitutional amendment defining marriage as "an institution between a man and a woman.”  

Massachusetts Governor Mitt Romney is among those supporting such an amendment; despite his desire to work with Massachusetts lawmakers to craft a “civil-union” style law to give some marriage rights to same-sex couples.  President Bush released a statement shortly after the decision stating, "I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."  

Prior to and since the decision, much of the debate has centered on the legal difficulties arising from the acceptance and recognition of same-sex marriages, including rights of survivorship benefits, Social Security, etc.  Others have put forth the polemic that this only hastens America’s descent into licentiousness.  However, most have overlooked the most important issue, which has the most far-reaching implications – that being whether the state (read, government at any level) should even be involved with marriage or any other consensual agreement between and among individuals.  

It is believed by many that the ancient Egyptians were the first to establish marriage laws.  Prior to this, marriage had no legal or religious constraints.  However, during subsequent periods of ancient Egyptian history, a contract was drawn up between the husband and the bride's father, ensuring the property rights of the wife and children – or, the contract was between the husband and wife.  In ancient Greece, one compelling motivation for marriage was the political alliance between noble families that the marriage would establish.  In Sparta, wife sharing and selective breeding were common practices in the Spartans' quest for the production of strong warriors. 

Over time, several varieties of marriage arose – the most common being monogamy, with one man and one wife or woman.  Other forms include polygamy, or more appropriately – polygyny, where the union consists of one man and several wives – and endogamy, with a requirement to marry someone who belongs to his or her own group.  Additionally, there is polyandry -- a less common form of marriage where there is one woman and several husbands.  In the 16^th century, however, the Church established control over what had been up until then an essentially private undertaking – after which marriages that were not witnessed or accepted by a priest or minister were not considered “legitimate.”  

Today, the state has established its control over the legitimacy of marriages, among other agreements – representing the continuing encroachment of government upon individual liberty.  Under its control, the state has needlessly given birth to the legal, financial, and health dilemmas involving Social Security, medical insurance, etc. – insofar as it has transformed a private and often religious agreement into a legal entity like a corporation.  In so doing, it has removed the privacy of the agreement (of marriage) and relegated it to a business transaction with tax implications.   

As a result of this and similar government intrusions, we are only free to associate with whomever we choose, however we choose, as long as it conforms to the moral, religious, and/or philosophical beliefs of legislators, political leaders, and the laws they create to reflect these beliefs.  One such law is the Defense of Marriage Act of 1996.  Drafted by congressional Republicans and ratified by then President Clinton, this law declared that the federal government would define marriage, rather than deferring to the several states.  

So here we are (again) – the state defining the legitimacy and parameters of our private undertakings, ensuring the continued dependency of the citizenry on an ever-expanding government – where the beliefs of some are imposed upon others.  Allowing freedom of association, which would necessarily include same-sex unions, will not lead to the spread of some “homosexual contagion,” turning the masses of heterosexual Americans into homosexuals – despite the fear of many.  

Those who say that such freedom of association exists between the like-gendered, but not going as far as to legitimize their marriage, are participating in political doublespeak for the sake of satisfying their own religious, moral, or philosophical convictions.  The argument that marriage has been historically between one man and one woman for the sake of procreation is only partially true, as evidenced by the various forms of, and motivations for marriage the have developed over the millennia.   

Therefore, the fight should not be how the federal government defines marriage.  It should not be over the federal government’s deference (or lack thereof) to the states.  No -- the fight should be to remove the state from private consensual agreements altogether – including marriage.