Politics & Policy

A Wall Between Marriage and State

A solution to the gay-marriage uproar.

Absent from the debate over marriage — gay or straight — is this simple query: Why should a couple need government’s permission to wed?

This question occurs amid calls for a marriage amendment to the Constitution. “Marriage in the United States shall consist only of the union of a man and a woman,” the proposal states. The Alliance for Marriage supports this idea as does Princeton University professor of jurisprudence Robert P. George. In a July 23 National Review cover story, George advocates changing the Constitution lest same-sex marriage “strike a blow against the institution more fundamental and definitive even than the disastrous policy of ‘no-fault’ divorce.”

Legal requirements that people get licenses before tying the knot have made gay marriage a public rather than private concern. Extracting government from the marriage business would place this touchy question exactly where it belongs: among private citizens, religious faiths, and civic groups.

If marriage licenses were scarce, there would be a compelling public interest in restricting them to heterosexuals. Gay couples cannot bear children on their own, and no one wants to endanger the species. Fortunately, marriage licenses are in infinite supply. Homo sapiens will persevere even if homosexuals wed.

Barring homosexuals from matrimony also could be defended if gay marriages somehow diluted straight ones, just as allowing illegal aliens to vote would diminish the impact of current citizens’ ballots. But gay marriages need not disqualify straight couples from public or private goods. Nor should the marriage of Bob and Carl decrease the mutual devotion of Ted and Alice.

Perhaps professor George overdosed on wedding cake before concluding that gay marriage will “abolish the institution” of matrimony. Will gay couples who wear wedding bands propel straight duos into divorce court? Would a gay-nuptials invitation lead a bride-to-be to ring her betrothed and cancel their ceremony?

What does devalue traditional marriage are domestic partnerships that bestow privileges on heterosexuals who merely shack up. If wedlock’s material benefits (e.g. health coverage for one’s unwed companion) are granted on the cheap, why exchange vows? Even gay-marriage opponents must admit that homosexual couples who seek matrimony at least intend to remain together. The state asks no similar lifetime commitment from registered domestic partners.

This prospective amendment exposes the schizophrenia endemic among social conservatives regarding homosexuality. For years, socio-cons complained about proverbial gay men sleeping with 1,000 different partners every year — rendering sex a full-time job. Even less apocryphal promiscuity — of whatever stripe — carries both emotional and medical risks. Now that gays seek monogamy and permanence, social conservatives want to silence the wedding bells. Which is it?

There is no magic wand to turn gays straight. And if there were, only a totalitarian state would wave it at its citizens. Since gay people will not go away, social conservatives should welcome a strategy to advance homosexual fidelity and stability.

Professor George believes heterosexual marriage enjoys “moral principles at its foundation” rather than “mere subjective preferences or sentimental motivations,” as if love and shared sacrifice did not underlie gay unions. Such profound and deeply personal moral issues belong in America’s churches and synagogues rather than Congress or City Hall. Let reverends and rabbis decide what the meaning of the word “marriage” is.

I call this policy “separation of marriage and state.” As libertarian author David Boaz suggests, once government stops decreeing which people may and may not spend their lives together, questions of gay and straight marriage will become private ones. “Marriage is an important institution,” Boaz has written. “The modern mistake is to think that important things must be planned, sponsored, reviewed, or licensed by the government.”

It should not be government’s concern which individual a person identifies as an heir, hospital visitor or recipient of Social Security survivor’s payments. Through private contracts, people could designate a significant other to enjoy such benefits. The tax code ideally should contain neither marriage penalties nor preferences. It should raise revenue for necessary public functions, not discriminate for or against married people. If Americans are equal before the law, these choices should be made by private parties, not politicians.

During a 1989 visit to Moscow, I watched newlyweds pose for photographs at Lenin’s Tomb. How odd, I thought, that these couples essentially sought the posthumous approval of the USSR’s first dictator. The fact that Americans in love must bow before live bureaucrats in order to dedicate their futures to each other is as absurd as that scene in Red Square.

Deroy Murdock is a Manhattan-based Fox News contributor, a contributor to National Review Online, and a senior fellow with the London Center for Policy Research.


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