Separation of Marriage and State


Like most libertarians, I'd like the state to get out of the business of defining marriage altogether—or anyway, to the extent compatible with the probably inevitable entanglement of such partnerships with immigration and tax laws—acting as a neutral enforcer of whatever arrangements partners or groups of whatever gender see fit to make. But I've also expended a moderate amount of rhetorical energy backing the fight for gay marriage, on the assumption that this best-case scenario was unlikely to come about soon, and that if the state were going to be involved with marriage, it had at least better not disburse the legal benefits thereof in a way that made some people second-class citizens.

But this post from Juan Cole—no libertarian he—gives me pause. The controversy over gay marriage may, just maybe, have made the libertarian's best-case scenario sellable to both sides in the guise of a "compromise" solution. Proponents of gay marriage who've just been handed 11 rather overwhelming setbacks on state ballots can get just about everything they really want from a two-tiered regime where states are, as they should be, in the business of enforcing, not sanctifying, and private churches decide which civil unions they want to consecrate as marriages. With states restricted to recognizing civil unions, gay couples get both the legal benefits they seek and the formal equality that would elude them if states merely added civil unions as a consolation prize to the current marriage regime.

Many conservatives, on the other hand, appear to see the writing on the wall in the long term: As younger Americans who tend to be far more tolerant of homosexual relationships come of age, the inequitable status quo will be increasingly untenable. Even George Bush seems willing to countenance legal marriage-like rights for gay couples, so long as the arrangement in question isn't actually called marriage. (The weirdly semantic quality of the debate—evidenced by the prevalence of rhetoric about "redefining" marriage—is one more reason demographic shifts are likely to undermine the status quo, by the way. When I was growing up, I always thought of the long-term gay couples my parents knew as married, even though I don't think they used the term, so I was initially quite startled to hear the "redefinition" argument. I had never "defined" marriage as "one man one woman" in the first place. As more people are raised around long-term gay couples, I suspect they'll come to find the "redefinition" argument equally bizarre, whatever Websters says.) And I can easily imagine Cole being right that they might be swayed by a candidate who says: "Marriage is sacred—instead of arguing about whether legislatures or courts are going to define it this way or that, it's time we recognized that governments don't have the authority to define it at all. If it's not the place of churches, mosques, and synagogues to pass laws, then it certainly isn't the place of politicians to say what's sacred."

The Prospect's Garance Franke-Ruta, incidentally, has a rather desultory argument against Cole's modest proposal. Her two central points seem to be, first, a vague objection centered on the legal rights of women that I have trouble imagining would be a serious obstacle (no more than pre-nuptual agreements, which are already an option) and a strikingly conservative one about the "moral and spiritual meaning" of marriage, which I would have expected a liberal to join libertarians in preferring be defined by the couples (or groups) whose marriages they are, along with their (spiritual or secular) communities.