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Why Is Government Involved with Marriage Anyway?



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The question has been raised lately. In a paper for Heritage, Ryan Anderson addressed this fundamental question:

While respecting everyone’s liberty, government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing. Adults are free to make choices about their relationships without redefining marriage and do not need government sanction or license to do so.

Government is not in the business of affirming our love. Rather, it leaves consenting adults free to live and love as they choose. Contrary to what some say, there is no ban on same-sex marriage. Nothing about it is illegal. In all 50 states, two people of the same sex may choose to live together, choose to join a religious community that blesses their relationship, and choose a workplace offering joint benefits. There is nothing illegal about this.

What is at issue is whether the government will recognize such relationships as marriages—and then force every citizen, house of worship, and business to do so as well. At issue is whether policy will coerce and compel others to recognize and affirm same-sex relationships as marriages. All Americans have the freedom to live as they choose, but they do not have the right to redefine marriage for everyone else.

Appeals to “marriage equality” are good sloganeering, but they exhibit sloppy reasoning. Every law makes distinctions. Equality before the law protects citizens from arbitrary distinctions, from laws that treat them differently for no good reason. To know whether a law makes the right distinctions—whether the lines it draws are justified—one has to know the public purpose of the law and the nature of the good being advanced or protected.

If the law recognized same-sex couples as spouses, would some argue that it fails to respect the equality of citizens in multiple-partner relationships? Are those inclined to such relationships being treated unjustly when their consensual romantic bonds go unrecognized, their children thereby “stigmatized” and their tax filings unprivileged?

This is not hypothetical. In 2009, Newsweek reported that there were over 500,000 polyamorous households in America.[25] Prominent scholars and LGBT (lesbian, gay, bisexual, and transgender) activists have called for “marriage equality” for multipartner relationships since at least 2006.[26]

If sexual complementarity is eliminated as an essential characteristic of marriage, then no principle limits civil marriage to monogamous couples.

Supporters of redefinition use the following analogy: Laws defining marriage as a union of a man and a woman are unjust—fail to treat people equally—exactly like laws that prevented interracial marriage. Yet such appeals beg the question of what is essential to marriage. They assume exactly what is in dispute: that gender is as irrelevant as race in state recognition of marriage. However, race has nothing to with marriage, and racist laws kept the races apart. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and children, and that is why principle-based policy has defined marriage as the union of one man and one woman.

Marriage must be color-blind, but it cannot be gender-blind. The color of two people’s skin has nothing to do with what kind of marital bond they have. However, the sexual difference between a man and a woman is central to what marriage is. Men and women regardless of their race can unite in marriage, and children regardless of their race need moms and dads. To acknowledge such facts requires an understanding of what, at an essential level, makes a marriage.

We reap the civil society benefits of marriage only if policy gets marriage right.

The state has an interest in marriage and marital norms because they serve the public good by protecting child well-being, civil society, and limited government. Marriage laws work by embodying and promoting a true vision of marriage, which makes sense of those norms as a coherent whole. There is nothing magical about the word “marriage.” It is not just the legal title of marriage that encourages adherence to marital norms.

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What does the work are the social reality of marriage and the intelligibility of its norms. These help to channel behavior. Law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is.

Government promotes marriage to make men and women responsible to each other and to any children they might have. Promoting marital norms serves these same ends. The norms of monogamy and sexual exclusivity encourage childbearing within a context that makes it most likely that children will be raised by their mother and father. These norms also help to ensure shared responsibility and commitment between spouses, provide sufficient attention from both a mother and a father to their children, and avoid the sexual and kinship jealousy that might otherwise be present.

The norm of permanency ensures that children will at least be cared for by their mother and father until they reach maturity. It also provides kinship structure for interaction across generations as elderly parents are cared for by their adult children and as grandparents help to care for their grandchildren without the complications of fragmented stepfamilies.

If the law taught a falsehood about marriage, it would make it harder for people to live out the norms of marriage because marital norms make no sense, as matters of principle, if marriage is just intense emotional feeling. No reason of principle requires an emotional union to be permanent or limited to two persons, much less sexually exclusive. Nor should it be inherently oriented to family life and shaped by its demands. This does not mean that a couple could not decide to live out these norms where temperament or taste so motivated them, just that there is no reason of principle to demand that they do so. Legally enshrining this alternate view of marriage would undermine the norms whose link to the common good is the basis for state recognition of marriage in the first place.

Insofar as society weakens the rational foundation for marriage norms, fewer people would live them out, and fewer people would reap the benefits of the marriage institution. This would affect not only spouses, but also the well-being of their children. The concern is not so much that a handful of gay or lesbian couples would be raising children, but that it would be very difficult for the law to send a message that fathers matter when it has redefined marriage to make fathers optional.

This highlights the link between the central questions in this debate: What is marriage, and why does the state promote it? It is not that the state should not achieve its basic purpose while obscuring what marriage is. Rather, it cannot. Only when policy gets the nature of marriage right can a political community reap the civil society benefits of recognizing it.

My latest syndicated column seeks to encourage those trying to have a more civil, constructive conversation about marriage policy and building a culture of marriage. Ryan is among them, as well as William May from Catholics for the Common Good



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