The Non-Marriage Penalty

First, I am interviewed today at Reason on our Equal Marriage Arizona initiative.

One question that keeps coming up, both from libertarians as well as others, is why should government define marriage at all?  Can't anyone get married in any kind of private ceremony?

My response is that yes, in some sort of libertarian small-government world, the state would be irrelevant -- what I used to call separation of marriage and state.

But it turns out that the state is already deeply involved in marriage.  The explicit state licensing of marriage already exists, and our laws in Arizona for this licensing are unequal -- some couples get access to this state license, and some cannot.

What makes this important is that marriage is embedded in hundreds, even thousands, of laws.   I searched the Arizona Revised Statutes for mentions of the words "spouse" or "spouses".  These words are used 1133 times in 373 different statutes!  The Our America team told me they counted over a thousand references in Federal code.  In other words, our law codes give -- in thousands of instances -- specific rights, responsibilities, and privileges to married couples who have access to a state-granted marriage license.  Those left out of the current unequal definition of marriage face any number of challenges imposed on them by these specifics of spousal rights and privileges embedded in our law code.  I call this the non-marriage penalty.

There is no way to rip all these references to marriage out of the law and tax code.  The fairest solution -- the one that most respects individual freedoms -- is to accept that such government licensing of marriage exists and then make it as open and as equal and as fair and as accessible as we possibly can.  That is what we are trying to achieve with Equal Marriage Arizona.


  1. marque2:

    That is better than watching Liberian pollyannas.

  2. obloodyhell:

    >>> That is what we are trying to achieve with Equal Marriage Arizona.

    No, it's not, Warren. You explicitly FAIL to ack the religious rights of the individual in your law. You are just doing what every other pro-gay marriage proponent is doing -- you're giving lip service to the religious issues while assisting gays in bowling over anyone who might have a religious issue with it. The sop to "churches" and "institutions" is bogus and damned near irrelevant. It's only one small form of the issues surrounding this complex matter.

    You've had several days now to discuss or address this, and you've chosen instead to ignore it.

    I don't live in AZ, but
    1) I'd vote against you if I could.
    2) I hope you fail, and badly.

    And I don't have major problems with gays having most of the rights accorded married couples.



  3. obloodyhell:

    BTW, notice how the "down voter" didn't make any attempt to argue against me -- they just went "Wee wee wee" all the way home. :-/

    The point I'm making has real substance, and it's being blown past by virtually everyone who even TALKS about this issue.

  4. obloodyhell:

    marque2, your comment has virtually nothing to say about the issue I was raising, which is that marriage IS a contract and that it IS therefore, by definition, something government is involved in.

  5. obloodyhell:

    You STILL manage to completely blow past the fact that there are inherent societal rules about how we treat people who are married.

    As a hotel owner, I can freely refuse to rent to an unmarried couple, even though our society pays little attention to such. If I attempted to do so towards a married couple, there'd be problems. As an employer, I can refuse to pay benefits to someone you aren't married to. I am obligated by law AND custom to do so if you are married.

    Until you recognize those secondary external ramifications as a part of the issues that need to be addressed -- by law, by custom, by expectations -- you're just running roughshod over the rights of people who ARE NOT gay.

  6. obloodyhell:

    But the world is FILLED with Liberal Pollyannas....

    Wait. What?

  7. obloodyhell:

    Partly true, but even CUs violate individual religious rights. I would fully expect any common CU law to fully support stomping all over the religious rights of a B&B owner to not rent to gays. And that's wrong.

  8. texan99:

    It used to be common to refuse to rent to an unmarried heterosexual couple. Should we return to that custom? You could make an equally cogent case for it.

    But you would misunderstand me if you thought I favored forcing people to change their behavior (short of violence) toward gays, divorcees, unmarried couples, polygamists, or anyone else they considered to be violating sexual mores. I draw a sharp distinction between private customs and state force. My libertarian positions affect only how I behave and how much power I'm willing to give the state, not how I insist that you behave. I'd prefer that the state took much less notice of people's sexual arrangements, whether for the purpose of hindering them or for the purpose of bailing them out economically from the effects of their sexual choices. So I have problems with current and proposed laws about gay marriage, too, but they're coming from perhaps the opposite direction as your objections. It's a little like immigration: I don't mind the porous border so much as the welfare state that invites newcomers to become a burden. Get the state out of the business of supporting them, and I'm disinclined to interfere with their movements. But I'd eliminate welfare for both natives and immigrants, just as I'd eliminate government support for both heterosexual and gay marriage. Families should take care of their own problems under their own roofs, not invite the state in to judge whether they deserve help on the basis of whether they're following the state's rules.

    I'm heterosexual and married, 30 years now. My gay friends aren't hurting my marriage. Nor do I let the state "help" my marriage. It's not the state's business.

  9. marque2:

    Sorry I offended you.

  10. obloodyhell:

    LOL, how does "offense" enter into it...? I was just pointing out it didn't answer or deal with my main issue. Marriage is ABOUT contracts. Among other things, it is government's job to interpret and define ambiguities in contracts.

  11. obloodyhell:

    Michael argues nonsensically for the notion that governments don't belong involved in contracts. The idea is itself patently ludicrous. This is so DUH as to be inherently QED.

  12. craigkl:

    "There is no way to rip all these references to marriage out of the law and tax code."

    Well, of course there is. You put your nose to the grindstone and start modifying or repealing them. Or, you pass an initiative which directs the government to do so within one year. At one time there were hundreds of laws in the old south which referred to racial identity, and those were cleaned up. The solution wasn't to leave those laws on the books, and declare everybody white; it was to rip them out. And somehow, people were able to do it.

  13. craigkl:

    You can enforce and interpret the marriage contract without referring to the sex of the parties who entered into it, or the number of people involved -- exactly as with any other contract.

  14. obloodyhell:

    If your intention is to utterly and completely ignore the rights of certain individuals, true.

    That people HAVE rights even when pro-gays wish to ignore them is somewhat relevant.

    This isn't a one-sided rights issue, no matter how many times you try and paint it that way. This is a matter of a collision of rights, and he fact is that one side is bound and determined to not only not even try and RESPECT that being an issue that has to be treated carefully, they're bound and determined to stomp all over the rights of the much larger majority**.

    And no, you're wrong in general, you can certainly place all sorts of special instructions into contracts, including restrictions on sex, gender, age, and so forth. Except these kinds of laws abort that capability completely, and generally get used to abort all manner of other agreements as well.

    That's not even saying that they shouldn't. That's saying the attitude as though they "unquestionable ought to" is the BS part.

    ** Guess what? FUCK YOU. I've gone from being fairly sympathetic to gay rights to being pretty much willing to vote for and support anything that abrogates them. And I'm far from alone. There's a HELL of a lot of pissed off people out there, and there are more of them than there are supporters of gay. They're just not pissed off enough to start really pushing back. What happened in North Carolina is only the beginning. You're going to start seeing a hell of a lot more unreasonable people, as long as gays keep running roughshod over the majority's rights and acting like they don't exist.

  15. gastorgrab:

    In for a penny, in for a pound?

  16. Cari Beth:

    Thus the collective is more important than the individual according to this reasoning.
    Is it really true that without government encouragement, people would just throw the towel in on stable long-term relationships? People will basically only form stable unions with others because of government sponsored incentives?
    You are really saying people have little or no principle.
    Also what you truly are saying is that you are scared when people are allowed to make their own decisions because they may not agree with what you think is best for society as a whole. Government should be involved in marriage because people would not marry if it were not for the incentives given by it.
    I don't buy it. For the majority of human history, people did not need government to form stable units of family.
    I think people have bought a narrative that life would be wild, treacherous, and chaotic without guns pointed at us for our own good.