Separation of Marriage and State

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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.

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  1. all i know is that it is getting increasingly difficult to live in this heterosexual dictatorship

  2. all i know is that it is getting increasingly difficult to get dates in this heterosexual dictatorship

  3. It seems to me that the gay marriage/civil union debate says one thing: conservatives have conceded that marriage is no longer a religous institution. It is a state institution. Only the state can confer legitimacy on a marriage, and the institution of marriage is inseparable from the institution of the state. All of its social and cultural influence flows from the fact that the state defines it, and if the state no longer defines it, marriage no longer exists. I cannot fathom why conservatives do not see this the way libertarians do- as a defeat for civil society and a victory for the state. It says that the only possible victor in the fight over marriage is the power of the state.

  4. I’m for the separation of Earth and State.

  5. whatever Websters says

    I don’t know about Webster, but dictionary.com lists as definition 1d:

    A union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage.

    Of course, definition 1a is the husband and wife shtick. But still, it’s acknowledged by the dictionary writers that same-sex marriage is not an oxymoron. And of course the goal of the dictionary writers is to reflect usage.

  6. In the future Republicans, and the states which passed these iniatives, will commit themselves to much gnashing of teeth over the bigotry they’ve demonstrated of late. I hope to see that day.

  7. Being an Ohioan, and someone who fancies both sexes, I followed the debate of the Ohio DOMA pretty closely, and I think it’s interesting to note that almost every major Republican leader in the state (along with many business leaders and universities) came out against the amendment, explaining it would give a comparative advantage to other states without the prohibition. So here’s to the hope that the market system will give priggish social-conservatives a swift kick in the ass.

  8. Some people support granting preference to certain social arangements precisely because socieites that have those arangements are more likely to also esteem values such as liberty, democracy, rule of law, free markets, etc.

    Why would a single mother be interested in minimal government? Why would large polygamist clans be interested in market transactions and rule of law instead of transacting in the interest of and mostly among their own extended family?

    As an ideology libertariansim is not evil, the way Marxism is, but is almost as blockheaded.

  9. Why would a single mother be interested in minimal government?

    I think that consequentialist libertarians could provide a number of answers. First and foremost is the way that regulations and taxes inflate the cost of living so that a single-income household is no longer a sustainable model.

  10. norman normal,

    I’m fairly certain that people said the same thing about race, religion, etc.; recognition of the invalidity of social constraints concerning those fields has not harmed free markets, etc., and has in fact enhanced those values. There is no reason to believe that any of the scenarios you present is a threat to rule of law, etc.; indeed, if anything, in trying to enshrine certain social relations into law one presents a threat to free markets, the rule of law, etc., since this creates the sorts of arbitrariness and other ill effects we always expect from government intervention. In other words, you put the cart before the horse; the only blockhead here is you.

  11. thoreau,

    Absolutely; it becomes a self-fulfilling prophecy.

  12. normal blockhead,

    Why would large polygamist clans be interested in market transactions and rule of law instead of transacting in the interest of and mostly among their own extended family?

    I dunno, for the same reasons that the Amish interact with the world that surrounds them, or monasteries, or the hundreds of communes that exist in the U.S. today. In other words, we already have real world experience with such, and in the vast majority of cases these respect the rule of law, interact in the market (often by selling high quality hand-made products), etc. Not the brightest or best educated fellow in the world, are you?

  13. …adding a definition of marriage as a “lifelong union between a husband and a wife” to its high school textbooks was “a reasonable thing to do.” (Texas Textbooks)

    Please note: lifelong union.

    Please note2: According to this definition, Ronald Reagan and Nancy did not have a “marriage”, since Ronald was still married to Jane until right before he died.

  14. Why have any benefits for married couples?
    Why does Congress allow married couples to file joint tax returns?
    Why do hospitals deny friends access to the sick, aren’t good feelings and a generally positive disposition better for the patient?
    And when was the last time a hospital was sued by a patient for malpractice for letting a friend in to visit?

    I have a lot of questions, does anyone have any answers?

  15. raymond:

    Even serial monogamists such as RR & NDR intended each marriage they participated in to be lifelong. I don’t see too many social reformers clamoring for limited-term “marriage” contracts, with or without renewal clauses.

    Kevin

  16. I’ve been a proponent of this policy for months now. Ever since the idea of Civil Unions hit big last March.

    See?

    I’d rather be entered into a Civil Union in the name of the State and a Marriage in the name of my Temple (I happen to be Jewish and straight, not that it really matters) than have to listen to all this annoying fighting over “gay marriage”.

    Marriage is a state of mind more than anything else.

  17. “all i know is that it is getting increasingly difficult to live in this heterosexual dictatorship”

    That’s like saying black people still have to ride in the back of the bus. You obviously weren’t alive when it really was difficult for gays to navigate mainstream culture.

  18. TWC,

    That was only ten to fifteen years ago (I can distinctly remember when “fag bashing” was encouraged). Now we have Queer as Folk, Will and Grace and Queer Eye For the Straight Guy. 🙂 Though I note that only in the first of these do you actually see any action. However, long-term, the bigots like norman blockhead are going to lose.

  19. In my line of work I sometimes advise poeple on how best to protect their financial interests. Straights who live together without being married as well as gays have some peculiar problems because of the way the legal system functions (no news there).

    It is imperative to plug the holes and cover the bases with PAPER. Paper in the form of contracts, powers of attorney, trusts, and other documents that can and do protect one’s rights and also minimize the chance of you becoming one of the horror stories. Don’t be a helpless foolish dope that ends up with lots of regrets. Although, this stuff won’t solve 100% of the problem it will solve almost all of it. Mr. Goodbar SEZ: DO IT TODAY.

    With regard to taxes, there is actually one area where the law inadvertantly discriminates against married people in favor of gays (or singles). Under current tax law a gay couple can’t file a married/joint tax return. However, that’s a good thing because in most cases two single filers with decent income will pay less combined tax than the traditional married couple with more or less equal income filing a joint return.

  20. Jason, you are correct, the ultimate victory for those of us who believe in full civil equality for gay people is inevitabre.

    In-inevitabre.

    INEVITABRE!

    These marraige initiatives that just passed are temporary holding actions, like the closing of public schools in Dixie in the late 1950s.

  21. TWC,

    The problem is that all that paper costs money; certainly far more than $25 fee it costs to get married; money that many homosexuals may not be able to fork out (unless they risk using software like Family Lawyer); and this doesn’t guarantee you anything in an environment where states like Michigan and Virginia are trying outlaw even private efforts like this. And of course it doesn’t solve the problem of adoption, etc., in states which ban adoption by homosexuals.

  22. Jason B, yes, things have changed. The most remarkable change I think is that gays now have the option of coming out of the closet. Something they didn’t dare do forty years ago (well, there was Liberace).

  23. TWC,

    What’s amazing is how common it is becoming even in the square states.

  24. Jason B, I realize that it costs money. Or perhaps it costs time to learn and research the law. I’m not arguing against change I’m arguing in favor of making the best of a bad situation. It’s a Dale Carnegie thing. You got lemons? Make some lemonade. 🙂

    Like the man said, ‘whose life is it anyway?’

  25. Oh and on the paper thing. There is a whole lot more to preserving wealth and rights as a married couple than the marriage fee. As married people acquire wealth they too acquire the need to protect that wealth and their ability to pass it on to others (including children) and that costs big bucks as well. For moderately successful married people to do nothing in the way of protecting their interests is guaranteed to cost them or their heirs a lot. Just the difference between having a simple will and not can sometimes have enormous consequences. For a couple (from a legal standpoint) it’s obviously better to be married than not, but just holding title to a marriage is often not a panacea. It gets particularly complex in that second marriage…

  26. TWC,

    Yes, trusts, wills, “pour overs,” etc., and I understand your “it is better to light one candle than to curse the darkness” argument, but still, the system sucks, and it appears that at least some states don’t even want to allow the private remedies that you suggest.

  27. Some people support granting preference to certain social arangements precisely because socieites that have those arangements are more likely to also esteem values such as liberty, democracy, rule of law, free markets, etc.

    Once again we have the specter of someone backing repression ostensibly for the sake of freedom. Under this logic, blacks and women shouldn’t be allowed to vote because they’ve more likely to vote for social programs. And, “arrangements” don’t esteem values, people do! 🙂

  28. As revolted as I am by the passage of the DOMAs (including here in North Dakota where, so goes the joke, arriving flight passengers are advised to set back their watches one hundred years) I remind myself that similar anti-black laws once existed that were justified by the exact same arguments. So I just think of the DOMA as the Dred Scott of our era. Hopefully, things will turn around in a hundred years (or in the case of North Dakota, two hundred)…

  29. …and hopefully it won’t take a civil war to turn it around…

  30. Richard,

    You’re implying that marriage is treated in a discriminatory manner, or put another way that married people are treated in an undeservedly priveleged manner, and you’re right. Personally, it’s not a fight I want to go to the mat over, but technically speaking, you’re correct. It’s not fair. But oh well, that’s life. I wouldn’t want to use the force of government to squelch this practice (and in the cases where the government adheres to it itself, it’s essentially following the lead of civil society, so doing anything else would give the appearance of taking a stand against it), and trying to talk people out of this prejudice just isn’t my top priority. Maybe in a hundred years we’ll be over this prejudice! 🙂

  31. How about separation of State and Dictionary?
    Isn’t it Orwellian State should go out of it’s way to define words such as “marriage”?

  32. One of my friends (a college-grad & high-school teacher) told me just the other day that homosexuals are “almost as evil as murderers.” I was startled by such a blatant admittal of bigotry from a (reasonably) educated person. This tells us where we remain; it’s mostly the fault of the christian right.

    Scott

  33. Does no one remember that the decline of many great civilizations, immediately followed an increased practice and acceptance of homosexuality. Couple that with the fact that history always repeats itself, and you will begin to see the reasoning for a constitutional amendment.

  34. mje, as many people have pointed out over the years, the Roman Empire was at its peak when it was most debauched. It fell only after Christianity became the state religion.

  35. “Does no one remember that the decline of many great civilizations, immediately followed an increased practice and acceptance of homosexuality.”

    Evidence please. When last I checked the Greeks feel apart due to conflict between the city states, and the Romans due to plague, internal strife, and barbarian invasions. Both civilizations had largely accepted homosexuality from the get-go up until those Judeo-Christian busy bodies showed up and started bullying everyone.

    “Couple that with the fact that history always repeats itself, and you will begin to see the reasoning for a constitutional amendment.”

    Oh spare me. The only “reasoning” (and I use the term loosely) behind an anti-gay-marriage amendement is that this country is largely dominated by dim-witted Bible-beaters who can’t let go of their prehistoric notions of “morality.”

  36. “The only “reasoning” (and I use the term loosely) behind an anti-gay-marriage amendement is that this country is largely dominated by dim-witted Bible-beaters who can’t let go of their prehistoric notions of “morality.””

    This is far from the truth, but I’m glad that you brought it up. I believe that the question of morality only clouds the topic, and causes the argument to center around religion, which is irrelevant in this situation. Speaking logically, same-sex marriages are a self-defeating practice. The natural order of the world requires hetero relations for the species to continue. How do you possibly rationalize a practice that is so counter-productive to the life cycle? And please try to do it without bringing morals into the argument.


  37. The natural order of the world requires hetero relations for the species to continue. How do you possibly rationalize a practice that is so counter-productive to the life cycle? And please try to do it without bringing morals into the argument.

    There is no need for hetero relations in order to propagate the species. Humans are advanced enough to practice in vitro fertilization. More recent developments allow viable embryos to be produced from the genetic material of two males or females, combined and then implanted in an ovum. The whole concept of reproduction hinging on heterosexuality is outdated.

  38. mje,

    Even if you were right about hetero relations being necessary for the species to continue, what does that have to do with who gets to enter into a government sponsored marriage contract? Heteros can procreate all they want regardless of whether gays can marry. And even if heteros were to stop procreating just because gays can marry (although the idea is so ridiculous I can barely type it), that still wouldn’t justify oppressing gays’ contractual rights. Because if heteros want to react that way, that’s their choice, not something being forced on them by gays, or by anyone else.

  39. The natural order of the world requires hetero relations for the species to continue. How do you possibly rationalize a practice that is so counter-productive to the life cycle?

    You’re assuming that extending civil marriage contracts to gays will cause fewer people to reproduce. I don’t know about you, but I’m not going to leave my wife and marry some guy just because the law says I can. And men have been trying for thousands of years to get more women to have sex with each other (or at least to get more attractive women to have sex with each other). If legalizing gay marriage was the key to that, it would have been done thousands of years ago. “Honey, I know you’ve refused to have sex with that hot woman friend of yours while I watch, but now they’ve changed the law in Massachusettes. What do you say?”

  40. Speaking logically, same-sex marriages are a self-defeating practice. The natural order of the world requires hetero relations for the species to continue.

    First of all, what makes you think that heterosexual relations will suddenly CEASE if homosexuals relationships find acceptance? Is homosexuality some contagious disease that will suddenly consume the hetrosexual population, turning straight people gay, if it is not conatined? Puh-lease. Homosexuals make up a small percenatage of the population. Letting them exist, much less allowing them to get hitched, will not not destroy the human race.

    “How do you possibly rationalize a practice that is so counter-productive to the life cycle?”

    Because that practice does nothing to hurt the life cycle. In fact, humans have gotten along swimingly with homosexuals in our midst for 2 million years. I have a pretty good feeling we’ll still be here for another 2 million years, if not more, if we accord gays and lesbians the same rights as hetrosexuals have.

    As to what’s “natural.” I would go as far to say that hetrosexual monogomy (i.e. marriage) is counter-productive to the life cycle. If you’re interested in maintaining reproduction and genetic diversity, you would want individuals to be procreating with as many partners as possible, not tied down to one mate until one or the other becomes incapable of bearing/siring children.

    “And please try to do it without bringing morals into the argument.”

    I just did, but let’s be perfectly frank here; despite your ham-handed attempt to make a secular case for oppressing gays, the major excuse for anti-homosexual sentiment comes from religion, primarily from the Judeo-christian school of because-God-said-so morality. Homophobes can’t escape this fact no matter how much psudeo-science the use, any more than Creationists can’t claim their arguments against evolution aren’t religious just because they call Creationism “intellegent design.”

  41. mje,

    Does no one remember that the decline of many great civilizations, immediately followed an increased practice and acceptance of homosexuality.

    Historical examples please? And I mean more than mere names here. I want a complete historical analysis, otherwise I call bullshit. Oh wait, I see upon further reflection that you balked when asked to provided such. Thus falls apart your argument from history.

    Now, as to your argument from nature, that is equally falacious, since – especially in light of your rejection of religion – you have no objective point from which to make such a judgment.

  42. I’ll go even further than I did in my last post: If same-sex marriage were the key to getting women to have sex with each other, the Bible would have been revised thousands of years ago.

    Revised Leviticus:
    “And the Lord spake, saying ‘Let no man lieth with another, for it be exceedingly unworthy in My sight, but let the women lieth with one another as they please. And giveth preference to the youngest and fairest of each tribe, but say that no woman of your tribe shall lie with another woman in the view of others if she have short hair and an unfair face. Let them do as they please out of the sight of men, but in the sight of men command the fairest of women to lie with one another. And any hot woman who refuseth to lie with another woman in the sight of men shall be stoned.”

    The fact that nobody made these revisions suggests that even back then men knew that it was a lost cause.

  43. Did anyone hear about the recent study that reported a trend toward female relatives of gay men having higher fecundity than female relatives of straight men? The notion would be that some sort of genetic factor contributing to homosexuality is linked to a genetic factor contributing to increased female fecundity, thereby helping to explain the persistence of an apparently evolutionarily unfavorable trait. Of course this was just a correlative study, with no information about what genetic factor that might be, if it does in fact exist. It was in Proceedings of the Royal Society of London (http://www.pubs.royalsoc.ac.uk/proc_bio_homepage.shtml). Not sure if you need a subscription to see it, but here’s the abstract:
    —–
    The Darwinian paradox of male homosexuality in humans is examined, i.e. if male homosexuality has a genetic component and homosexuals reproduce less than heterosexuals, then why is this trait maintained in the population? In a sample of 98 homosexual and 100 heterosexual men and their relatives (a total of over 4600 individuals), we found that female maternal relatives of homosexuals have higher fecundity than female maternal relatives of heterosexuals and that this difference is not found in female paternal relatives. The study confirms previous reports, in particular that homosexuals have more maternal than paternal male homosexual relatives, that homosexual males are more often later-born than first-born and that they have more older brothers than older sisters. We discuss the findings and their implications for current research on male homosexuality.
    —–
    Which is not to say that the argument that we should discourage homosexuality and certain other practices because they’re against the “natural order of the world” or some such thing makes a lot of sense to begin with, nor should we use our often very poor understanding of natural selection and the causes of human evolution as a basis for public policy. But even if you accept the initial premise behind such an argument, it’s often very difficult to even define what the “natural order of the world” is.

  44. I don’t have a clue what the hell happened to those apostrophes and quotation marks.

  45. <off-topic>

    J,

    You probably copy and pasted from some other application (like Microsoft Word) into the comment box. MS Word uses different characters for apostrophe and quotation marks that look better. Judging from the fact the source and the preview screen displays the better-looking marks, I would say there’s something about the font selection used on this page that doesn’t have those non-ASCII characters mapped to glyphs.

    Moral of the story: if you want to be sure about quotation marks and apostrophes appearing correctly (no Euro sign in them), type them in with the keyboard into the comment box.

    </off-topic>

  46. Shawn,

    Thanks, yeah, I had copied some stuff in from Word. But in the past when I had done that the quotes and apostrophes had always turned up as question marks in the preview, so I knew something was up. This time the preview looked fine, and the replacement characters are much more creative than mere question marks. Maybe it was a different Word font.

    But how about those sisters of gay men shooting out babies like they’re bubble gum machines? Real freakshow, huh? Hello? Is this thing on?
    I can kill threads with the best of ’em.

  47. “According to this definition, Ronald Reagan and Nancy did not have a “marriage”, since Ronald was still married to Jane until right before he died.”

    Actually, no, because Jane was married to Fred Karger, so it would be the marriage between Ron and Jane, not the one between Ron and Nancy, that would be invalid.

  48. It’s so hard to tell harlots from housewives nowadays.

  49. (present company excepted)

  50. “What God hath joined together, let no man put asunder.” (from The Great Sky Constitution)

    I have fixed the proposed marriage amendment. (Repairs in italics.) This should have no trouble passing.

    Marriage in the United States shall consist only of the lifelong union of a man and a woman. Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the lifelong union of a man and a woman.

  51. raymond-

    Your suggestion reminds me of Jon Stewart’s comment that the greatest threat to marriage is actually divorce, in which case we need a divorce amendment, not a gay marriage amendment.

  52. What ever happened to separation of church and state? Bush’s plan to plummet the US into an Apocalyptic state is finally paying off…

  53. thoreau –

    Another nice thing about my version… The various governments wouldn’t be able to determine eligibility for “the legal incidents” until _after_ the death of one of the spouses.

    Would save a ton of money.

  54. thoreau,

    An anti-divorce amendment would cause such a freaky freak that the religious right wouldn’t try it. Some southern states have tried to create “pledge” laws however, where couples can opt into a more stringent legal relationship.

    Anyway, it appears that Massachusetts will not be getting rid of gay marraige anytime soon, given the defeat of some of its most vocal opponents in Massachusetts.

    What we’ll likely end up with (barring some FMA which forces states to end the recognition of gay marraige) is a bi-furcated country where gay marraige or civil unions are recognized and where they are not. If such comes to pass, you’ll see a very talented pool of individuals leave states where such recognition does not exist for states where it does; such bigotry only ends up shooting the bigot in the foot.

    As a Catholic are you pressured to vote against candidates who support gay marraige or civil unions?

  55. Jason-

    My parish leans decidedly left. The closest they come to talking politics is to encourage us to support political efforts to end world hunger (and even there they are careful in their language, due to tax-exempt status and whatnot). There was some token talk about stem cells due to the ballot measure, but that’s sort of requisite in a Catholic Church. For the most part the parish’s pet political cause is ending hunger, not gays or gynecology.

    Then again, it’s run by Franciscans and is located in a very liberal town (Santa Barbara), so what else would you expect? I prefer Franciscan parishes. I went to a grade school run by Franciscan priests and the School Sisters of Notre Dame (although most of the teachers weren’t nuns, due to shortages).

  56. One more thing: Jason, if your prediction is correct, and there’s a talent exodus from the red states, it will probably further exacerbate the trend of (most) red states paying less per capita in taxes than they receive in federal spending and (most) blue states paying more.

    Yet no doubt the red states will continue to bitch that lefties and city-dwellers are all sucking at the teat.

  57. thoreau,

    That’s interesting, because it appears that the Catholic Church heavily funded at least some of the marraige amendments passed in the most recent election. I also know that they have been heavily involved in opposing European efforts to recognize civil unions or gay marraige, such as the civil unions law that was passed in France in the late 90s.

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