This past election day, voters in Maine, Maryland and Washington approved same-sex marriage. Same-sex marriages are now permitted in nine states and the District of Columbia, and twelve states permit domestic partnerships or civil unions. Thirty-one states have constitutional restrictions limiting marriage to one man and one woman. Same-sex marriage is legal in eleven countries.
The emotional debate surrounding this issue is taking place not only in the United States, but throughout the world. Each side can cite numerous studies and statistics supporting its positions, and both factions share the desire to use government regulations to shape social mores. Marriages and families are human bonds that existed long before any government regulation. By attempting to “reform” marriage through the political process, it may become an even more integral component of a state’s ability to control society. Marriage “reform” should be a religious matter, and one has to wonder whether this issue is being fought on the right battlefield.
One danger of the current debate and the spate of legislation it has produced, is that we will expand the sphere of what we consider to be legitimate government interests. In 2006, the Washington Supreme Court concluded that encouraging procreation within the framework of marriage can be seen as a “legitimate government interest.” Conversely, in 2010, the U.S. District Court for Northern California observed that there is no evidence that shows that any individual has ever been required to demonstrate an ability or willingness to procreate in order to marry.
Too often, when heterosexual marriage is used as a baseline, by either side, it is looked upon as the union of one penis and one vagina. Is the regulation of procreation a legitimate government interest, or should government focus on the task of protecting the rights and enforcing the responsibilities of its citizens? Marriage involves much more complex issues than the interaction between a penis and a vagina, and that should not be the starting point for a process that may eventually give government even more tools for shaping social policy.
Marriage is a social development that became institutionalized by religion. Many of the arguments concerning same-sex marriage are passionate ones because they are made on religious grounds, and people tend to become most passionate when their religious beliefs are challenged. This religious institution then became, and continues to become, steadily intertwined with government regulations, to such an extent that some priests and ministers feel as though they’ve become agents of the state when performing marriage ceremonies. In the United States, there are over one thousand statutes and laws in which marital status is a factor when determining individual rights and privileges. And the Defense of Marriage Act, which was adopted in 1996, makes these rights and benefits relevant only within the context of a one male-one female marital arrangement.
Some attempts have been made by individual states to mitigate the current divide by creating domestic partnerships or civil unions, to formally recognize the relationships of unmarried couples and to provide rights and responsibilities that are similar to those enjoyed by couples who are considered to be legally married. This approach has been criticized on both sides. Proponents of same-sex marriage feel that civil unions stigmatize them by placing them in a separate category. Many who oppose same-sex marriage claim that civil unions are simply another name for homosexual marriage.
The history of marriage is one of a social institution that has become regulated by religious standards and practices. Definitions of marriage should continue to be debated by religious authorities, and the rules that are followed by each marital participant should continue to be matters of faith — those principles that have survived for far longer than any government. Marriage, and marital practices, should remain outside of the influence of the state.
Those who support this view — the “privatization” of marriage — argue that, for legal purposes, marriage can be governed by a legally-enforceable contract, with violations that could result in penalties more severe than the consequences of a “no-fault” divorce. The nature of marriage, a religious union guided by human beings with their own agreed-upon standards, would not change. What would change are the relationships of the parties to the state. Civil unions, regardless of whether they are accompanied by a religious marriage ceremony, would provide a certain legal status for those individuals who wish to form life partnerships. The rights and responsibilities of those involved in civil unions would be uniform.
Because marital status has become inextricably entwined with federal and state laws, the state would still need to regulate civil unions to ensure that the relationships are between consenting adults who are not members of other civil unions. Significant penalties may have to be enforced for unions of convenience — for example, those unions formed only so that an individual can gain citizenship or take advantage of a partner’s health benefits coverage. Requirements and formulas for survivors’ pension and social security benefits will have to be revisited. Laws concerning joint parenting rights, child support, domestic violence, shared responsibility for debt and bankruptcy, transfers of property, spousal privileges, conflicts of interest and control of a partner’s affairs during incapacitation and after death, would all have to be rewritten. Matters of custodial rights and legal guardianship, shared property, inheritances and alimony would be regulated by a contract between the parties.
Everyone who wishes to designate a life partner would enter into a civil union. Married individuals would continue to comply with the regulations of their faith and be true to their beliefs. Society and the economy would continue to function in a familiar manner. Laws will inevitably change as dictated by human behavior. We will need government to evolve as our society continues to evolve.
The question is not whether there is a compelling government interest in encouraging procreation or establishing gender quotas for human relationships, but whether there is a legitimate constitutional right of the government to interfere in any activity if it breaches what Thomas Jefferson called, “the wall of separation between church and state.”