Comments (9)

• Ron L

  Well said! When people ask me "How do you feel about gay marriage?" I always respond: "I am against state licensing of gay marriage". THen I wait... Then I say, "... because I am against the state's involvement in marriage at all!"

  Published: June 22, 2006 6:26 AM

• Paul D

  Yeah, funny how the whole "gay marriage" issue (and a whole lot of others) evaporates when you stop pretending the government can and should regulate marriage.

  Legislation can't define the principle of marriage any more than it defines the laws of physics. All it can do is raise hurdles.

  Published: June 22, 2006 8:22 AM

• David C

  While I agree that the state should be out of the marriage business, it seems to me that the biggest "freebie" of mariage is not freebies coerced at other peoples expense, but a lower tax rate. The truth is that the state shouldn't be taxing anybody at a higher rate, but the fact that they are taxing the married demographic at a lower tax rate increases societies economic freedom more than it lowers it.

  The optimum solution is for the government to get out of the Marriage business and tax everybody at the lower rate, which probably means then when they come up with a "solution" it will do just the opposite.

  Published: June 22, 2006 8:32 AM

• David

  Nice article, as far as it goes. Here in SA we too have the same debate going on. WHile it would indeed be nice to eliminate the State from the equation, the issue at a practical level for same-sex marriage leaves the potential same-sex couple at a legal disadvantage in the ordinary application of law in a host of other areas of life. I have taken the liberty of pasting below a letter I wrote to one of our daily papers on the subject, after a local pastor wote a full-page article calling on the government to outlaw just about everything he disapproves of, chief among them any thought of same-sex marriage. I like to think this take on it accords well with basic libertarian principles.

  'The debate over same-sex marriage generates a good deal more heat than light, probably because the emotive content outweighs rationality. The root of the conflict lies deeper than marriage itself, but in the murky space where morality and law overlap.

  In a multicultural, multi-religious society such as ours, morality can not be more than a personal conception of right and wrong that informs an individual’s own choices. On the other hand, the law should govern a person’s behaviour only in so far as it impinges on the rights or property of other, non-consenting parties. These are two different concepts, albeit that the law has a long history of violently enforcing moral viewpoints, and has only recently started to discard its criminal sanctions against private behaviour: For example, laws that used to criminalise sodomy, even between consenting parties, and even between husband and wife, are no longer effective. Granted, the law still has some way to go to deal with many remaining criminal sanctions that originated from theocratic moralism, for example those relating to prostitution, or retailing wine on Sundays.

  Our individual moral views on these activities are beside the point: if our society is to be at all free, none of us is entitled to prescribe whether others may indulge in them or not, however distasteful we may find them. Liberty demands that the law must be wholly secular, and hence cannot decree behavioural standards between consenting parties acting between themselves. Ironically, this principle is the only guarantee of religious freedom for a co-existing multitude of faiths: if any one religion is permitted to use the law to force its particular moral views on others, no religion will itself be safe from persecution, as history has so clearly shown. It is a pity that so few of the ‘religious right’ remember this.

  In the light of this constitutional distinction between morality and law, the same-sex marriage issue becomes a lot clearer.

  Much of the emotive resistance to same-sex marriage seems to arise out of moral disgust at the thought of sex among the same sex, as it were. While the religious dimension of marriage is commonly interpreted as a licence to have sex and procreate, as far as the law is concerned, marriage does not legitimise sexual activity. Consensual sex between any two (or more) people, of any sex, married or not, is quite legal – and very common indeed. Likewise, the absence of offspring does not invalidate a marriage, nor does the existence of children confer married status on the parents. So as a basis for objecting to legal same-sex marriage, the sexual and procreational component is irrelevant.

  If these are not the defining features of marriage in law, what is marriage? An expression of love? But love is a notoriously difficult concept to define, and it has such broad meaning: Archbishop Tutu very genuinely loves everybody, even the people who once persecuted him, but clearly won’t marry any of them, while the innumerable arranged marriages still performed around the world testify that even romantic love is not necessary for a legally recognised marriage. Sticking to tangibles then, it is fairly widely understood in both religious and secular circles that the central feature of marriage is commitment between the parties: a commitment to provide economic, physical, and emotional support to one another, and perhaps electing to merge their estates, such that both parties’ lives may be enriched. Marriage occurs when an individual commits to place the best interests of another person on a par with, or even above, his or her own selfish interests. Which brings us back to love: what better expression of love can there be than this? In my own moral opinion, such a commitment to the well-being of another human being can never be wrong – irrespective of what sexes are involved.

  If commitment to a shared life and the provision of mutual support makes up the legal substance of marriage, there can be no compelling reason in law to restrict it to pairs of the opposite sex. Indeed, such a restriction is simply discriminatory, legally impinging on the ability of a same-sex couple to follow their mutual commitment through to the same extent as heterosexual couples can. Obstacles include the law of intestate inheritance, tax relief on donations between spouses, access for the non-breadwinner to the medical aid fund of the breadwinner, pension-continuance to the survivor on the death of the breadwinner, and of course, in the event of the union dissolving, access to ordinary justice in the equitable distribution of the wealth accumulated during the partnership.

  Thus, as far as the law is concerned, there is every reason to recognise same-sex marriage, and no narrow religious grouping has any grounds to oppose it for the rest of society.

  That said, as these civil unions inevitably gain greater legal recognition, we are likely to hear the occasional shrill demands for reluctant churches to officiate at or recognise such weddings. For the same constitutional free-choice reasons, these calls would be groundless. The members of any religious denomination are entitled to practice freedom of worship and association, and to freely subscribe to the moral views inherent in its teaching as a condition of membership. Thus, the law would have no place compelling any particular church to endorse same-sex unions among its congregation if its membership and leadership object on moral grounds. Just as it is unacceptable for any church to prescribe the law to those not of its faith, it is unreasonable for the law to override the freely-chosen moral beliefs of voluntary groupings of similar-minded people. Those potential same-sex couples with axes to grind, who would insist on forcing their church to officiate or recognise their marriage, would be better advised to leave that church and find, or found, another one whose congregation’s moral outlook is more consistent with their own – or to marry in a secular fashion – as the case may be.

  Now, with that cleared up, can anybody explain why polygamy (but not polyandry) is not illegal for Muslims, and black Africans under tribal custom, but is illegal for everyone else? There’s a whole nest of legal inconsistencies that needs untangling.
  

  Published: June 22, 2006 9:35 AM

• Curt Howland

  I don't wait. The moment anyone brings up "gay marriage", I explicitly state that the government should not be involved in marriage at all.
  

  Since I live in the Bible Belt, I tend to state it as "This is an oath between two people and their god. Government can only make things worse."

  Published: June 22, 2006 10:14 AM

• billwald

  The Christian churches gave the govt defacto authority over marriage 250 or so years ago. It is a little late to complain.

  Published: June 22, 2006 1:27 PM

• Jim B

  Sure -- And you should be able to marry your sister, dance nude on your front lawn in full view of the neighbors kids, firing guns in the air, etc. etc. Go read some Hoppe and tell me how that's functionally different than a local government with local laws ...

  Published: June 22, 2006 2:43 PM

• fidelity

  THis is a nice article in part. However, in fails in taking on thee crucial issue - how will society deal with children abandoned by their parents? See TrueMarriage.net for a fuller explanation.

  The article fails to adequately addess the issue regarding what marriage is -- it is both contract and status. By failing to tease these two aspects out and explain them, it fails.

  Even when parents do not abandon children, their failures will shape society. Unless we returned to a feral state, we need to deal with children.

  Children are the key basis for marriage laws, i.e. divorce laws.

  There are few, few, few laws on marriage in most states: age, residency, unmarried, male and female, not related, able to act freely.

  Virtually any adult can get the license. It is the aftermath -- the divorce, abandonment, etc. that require action.

  I wrote on this for Lew also.

  see:

  http://www.lewrockwell.com/orig7/safranek1.html

  Published: June 29, 2006 11:14 AM

• Carl G

  Jim B, what exactly prevents siblings from being married right now? I would imagine if a brother and sister really want to marry each other they'd go through the ceremony with or without government permission with the only difference being they would not be recognized. If the state's were uninvolved in marriage there would be no difference for that sibling couple while at the same time people would be free to marry whomever they CHOOSE to and not who the government defines as being a "proper" marriage. Also a brother and sister or any other married couple that most of us would see as wrong would still be discouraged by public opinion and not arbitrary government laws.

  Published: January 10, 2009 10:08 PM