Why Equal Marriage Needs to Be Legalized, Even if You Don't Think Government Should Have A Role in Marriage

This is an update of a post I wrote here.

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.  Likewise, there is no way to create an equable marriage alternative such as a civil union -- to do so, we would have to go through and rewrite 373 statutes to incorporate this terminology.   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.


  1. August Hurtel:

    So not only can the rather unfortunate events caused by the divorce industry continue for straight people and their children, gay people can now enjoy the special hell of the court system destroying their finances and children. No, what we should do is get government out of marriage. We have such an awesome opportunity, and it looks like we are throwing it away. The government, which is run by and spawns lawyers, has systematically changed the marriage license and the laws surrounding marriage in such a way as to maximize the livelihood of lawyers. This is just a next step. The lawyers, under the cover of feminism and equal rights for gays are pushing a policy of serial monogamy, emphasis on serial, because the continued engagement with this licensing increases their funding.

  2. treeher:

    I don't agree with the "fairness" argument. The marriage laws are "fair" to any man and woman who want to get married (and there are lots of marriages of convenience). The laws support society's interest in encouraging/supporting stable mother-father family units for our children. The intent is not disqualified by the fact that some mother-father situations are bad. Nor is it disqualified by the fact that some mother-mother and father-father relationships are good. I always wanted to be a pro basketball player and enjoy all the perks associated with it, and nothing in the NBA rules prohibited me from being a pro basketball player except that I was physically and mentally unable to do it. Similarly, nothing prohibits a man and woman from getting married except if one or the other is physically or mentally incapable of it. Mind you, I am not opposed to gay relationships. But I don't agree that the state should sanction them by conferring "marriage" on them for economic reasons.

  3. treeher:

    And Santa Claus should come 365 days a year. It's purely a thought experiment to say government should get out of marriage. Ain't gonna happen in anybody's reality. But the next best thing is to limit it to what it is instead of conferring "marriage" on gays, animals, billboards, and other inanimate objects.

  4. c_andrew:

    Gays are capable of entering into a contract with another human being. Animals, billboards and other inanimate objects are not.
    The NBA is a private organization. The government is not.
    Hope that helps.

  5. treeher:

    Think I knew that. OK, forget the NBA, although the distinction between private/public is a red herring. I also wanted to be a career Foreign Service employee. I had to take a civil service exam but didn't score high enough to meet their qualifications. So I could not access the perks and economic advantages afforded civil service employees. I could not meet the requirements set forth. Doesn't invalidate the requirements. I might file a discrimination lawsuit against the Foreign Service, but I would lose. If I am physically or emotionally unable to meet the requirements as defined in marriage, it doesn't invalidate the requirements. And I'm not being discriminated against if I can't meet the requirements.

  6. jimbeaux:

    If Christians strongly oppose gay marriage, then why do they continue to support and insist on licensing from the state? I believe that Christians should go to their pastor/church, have a wedding performed, get a marriage license signed by an ordained minister, and ignore the state altogether. I realize that there would be financial implications to this, but is that what it comes down to on both sides? Is the only reason Christians oppose gay marriage is because it gives gays financial leverage equal to their own? Is the only reason gays want to marry is for financial benefits? If not - if it truly is a spiritual/moral issue for Christians, then why do they bother to be concerned about getting a license from a government that is acting in a way that they believe is morally unjustifiable?
    Imagine it - suddenly thousands of people quit getting a state marriage license, but get one from their church. They are legally married in the sight of God, are they not (at least in their opinion)? And so suddenly the state is left with a hole in their budget from all of the fees they do not collect associated with marriage licensing. What would happen then?

    Marriage licenses didn't even exist until the 1600's. It's a man-made legal contract, not a covenant between a man and a woman.

    If Christians believe that they are married in the eyes of God when they have participated in a formal religious wedding ceremony and consummate the marriage through sex, then for the life of me I can't understand why Christians bother getting a state license at all. What does a state license have to do with the "Biblical definition of marriage". Why give the state equal time with God in jurisdiction over determining whether you're really married?

  7. albkmb:

    I would assume we consider it as silly today for two animals to get married as our predecessors for a same sex marriage. Times change and what we consider silly or unthinkable is tomorrow's reality.


  8. August Hurtel:

    We cannot legislate the activities of Santa Claus. It is much more possible for one or two states to get rid of marriage licenses in their states. It would still be hard, because the lawyers are powerful, but who knows, maybe the Southern Baptists and their fear of TEH GAY is stronger in some states. If you are libertarian at all, just see if you can push it in the right direction. Marriage licenses for all is not the right direction. That would be like, hey, instead of abolishing slavery, lets make everybody a slave! I suppose if any bankers are reading this, they'll say, just hold on man, we are working on it. Got to upset the Ukraine so you can hand them a loan and then hold their children responsible for it.

  9. treeher:

    I couldn't agree more. I got married (finally) after we were together for some years, and I thought it a bit silly overall. But I don't think the arguments to "get government out of marriage" go anywhere. It's not going to happen, even though I would support it. So my argument against "gay marriage" is consistent. Why would I want to extend government's reach into private affairs more than it already is?

  10. Todd Ramsey:

    I agree with you on gay marriage (and virtually everything else). Perhaps you could respond to a possibility that has always bothered me. Gay marriage proponents believe two consenting adults should be free of government interference in their marriage. What if one of the adults is already married to a third adult? Should polygamy consequently be legal?

  11. Daublin:

    I agree. I think it will work out fine to think of committed, live-in gay couples much the way we historically think about committed, live-in heterosexual couples. *That's* why gay marriage makes sense.

    However, I don't think it's ridiculous to oppose government support for such couples. Straight couples are already divorcing at a high rate these days. Committed gay couples break up even more often. As well, to the extent you think marriage should involve raising children, it's not obvious to me that it's better to marry an opposite-gender person to raise a child. You can still have friends outside your marriage. In many marriages--especially those formed and maintained for the purpose of raising a child--you can even have outside sex partners. I'm not saying I agree with this line of thought entirely, but I don't think it's unrespectable. I don't think the concept of equality really addresses the issue.

    Instead of shouting idealistic things about equality and fairness, it seems better to address the core issue head on. Argue that gay marriage will be a welcome and strengthening part of the social fabric. I think that's true, and I think people can be convinced.

  12. Daublin:

    Note that one strategy leads to the other. If everyone ends up married to everyone else, and marriage becomes even cheaper than it already is, then it is likely that fewer benefits will be attached to marriage.

  13. treeher:

    I just don't care to side with an argument that extends, rather than restricts, government's reach into private affairs. Govt. already has its fingers in heterosexual marriage, let's not extend that to gay marriage.

  14. marque2:

    That is why states have civil unions.
    The point of the marriage breaks are two fold.
    1 Is to encourage procreation
    2 To give families with one working spouse a break but cause the other spouse is at home with the kids. Note if both spouses work there is actually a tax pently.

    With gay marriage is 1: doesn't really apply and 2: is only really used for scam purposes.
    I am sure someone will point out the one gay couple that adopts. But we can't make our policies based on one off cases.

    So why would we set up a system that encourages one able bodied adult to stay at home and not work for no apparent reason.

  15. treeher:

    Yes. Meanwhile, some states are going in the opposite direction. That's what government does. Expands infinitely.

  16. Magua1952:

    Marriage has always been understood to include a man and woman. States have acknowledged this relationship for practical reasons. For example, a father who does not support his wife and children can be pursued for child support via the courts. A man who finds a new younger wife cannot escape obligations to the old wife and children. There are legitimate reasons why a state would want to have a record of marriages if only to be able to verify and enforce these relationships. Ancient and primitive societies have some form of marriage and provisions for holding the couple to their obligations. Among other things, the rules try to keep brothers and sisters from marrying for obvious reasons. The institution mainly protects women who are more vulnerable because of the burden of child bearing. Biology or God made us this way. If we had no state we would still mate with the opposite sex. Marriage is not an empty legal formality. It is the biological cornerstone of all human communities. Yes the homosexuals will always be present in small numbers. They are biological and/or social aberrations like those born with club feet or those who are psychopaths. They deserve to be left alone, and respected, so long as they stay away from the children.

    Who cares if a gay couple chooses to have a ceremony with a cake and wedding dress. A liberal cleric, or other respected figure, can pronounce vows. Some may prefer to avoid associations with gay marriages but there will always be someone in the market to preside over the ceremony, sell a wedding cake with two grooms on the top, cater the meals and design a wedding dress. The so-called discrimination against gay marriage is not a real problem. The advocates want to undermine heterosexual marriage by including homosexuals where there is no compelling need and no basis in nature. It is sad but understandable that some homosexuals curse their affliction and would like to bring down the healthy functioning members of the community to their unfortunate level.

  17. Jim Collins:

    I would support a "civil union" approach to this. A couple (man/woman, man/man, woman/woman) would file paperwork with the government, which would be entering into a contract. A condition of this contract would address the support of any children that become involved. Both parties would be EQUALLY responsible for the support of only any children, in the event of dissolution of this contract. This would confer the financial advantages on the couple. Then if the couple wanted religious recognition of their relationship they could get "married" with in the boundary of their chosen faith. I'm quite sure that if enough people couldn't find a religion that would recognize their union, they could create one that would.
    The problem is that the most vocal supporters of "same sex marriage" don't want this. They want to force their beliefs on the rest of us and to tear down the existing institution that is marriage.

  18. August Hurtel:

    Well, not infinitely, but definitely until the resources run out or are taken away from them. The federal government is already legislating like gay marriage is legit in all 50 states. This is making people nervous. In Oklahoma there appear to be some at least talking about getting rid of the marriage license; in Kansas they are feeling the burn of the Feds taking advantage of this little backdoor, but the blog I was reading that on finally pissed me off enough to quit reading. They are probably not going to try for it, because they think they are being sensible Christians by letting the government keep its hand at their throat. In reality they are just Churchians with a cult of morality rather than God.
    Anyway, yes, this and just about anything that would or could change anything is a long shot, but it would be nice to see what would happen. They'll probably just keep screwing up until they run out of everything.

  19. mahtso:

    "Should polygamy consequently be legal?"
    This is the $64,000 or more question -- one might not be opposed to same sex couples and yet still want to know how allowing same sex marriage will affect us economically, and to know that, one needs to know what limits will be placed on the "right" to marry. Candidly, I think most proponents of same sex marriage are disingenuous when they cite equal rights as the basis because I don't think most believe a man should be allowed to marry his sister.

    On that score, I recall hearing Dennis Prager ask an advocate for same sex marriage whether brother should be allowed to marry sister. Her response: that is disgusting. Mr. Prager: my point exactly. She: Oh, now I see your point (about same sex marriage).

  20. MingoV:

    "... we would have to go through and rewrite 373 statutes to incorporate this terminology."

    That's not true. A single bill that says "for all laws written prior to this date, the word 'marriage' shall be defined as marriage or civil union" would solve the problem.

  21. treeher:

    $20 trillion in debt is about as close to infinite as you can get ...

  22. mesocyclone:

    Once again, I'll raise an issue of consistency.

    Coyote's position on immigration is pretty straight libertarian: the state shouldn't tell him who he can or cannot hire, and there should be no restrictions on immigration.

    But with immigration, as with marriage, there are all sorts of non-libertarian existing laws which cause huge negative impacts on society from unrestricted immigration. As long as we have welfare, and state provided medical care for the indigent, unrestricted immigration is a big problem.

    So, if Coyote's going to cast aside Libertarian principles for gay marriage, because of existing laws and regulations, then it is only reasonable that he should do the same on immigration.

  23. mesocyclone:

    On gay "marriage" in particular, there seems to be a contradiction.

    The libertarian would say that we shouldn't have the state licensing or recognizing marriage. While I somewhat disagree, let's accept that for now.

    But, if one is to accept that licensing, as Coyote does, one should also consider the purported purposes and effects.

    Marriage is, and always has been recognized by society as an important structure for social order, and especially for raising the next generation. Society clearly has an interest in such, and this is the justification (correct or not) for the laws.

    Gay "marriage" does not satisfy those functions. There is no evidence that such unions have those positive effects. There is evidence that state recognition of those "marriages" will lead to increased state coercion of people whoss conscience does not allow them to support these unions. Already, the whole engine of civil rights has been twisted so that it's mantle can confer "equality" and thus diagnose "discrimination" in absurd ways. Licensing gay marriage will just increase that nonsense. And it was fear of those consequences that motivated SB1062. Whether they favored Sb1062 or not, anyone who believes in freedom, or cares about rational political discourse, should be horrified and dismayed by the immense powers of coercion that were brought to bear against this legally quite innocuous bill.

    Thus, gay marriage will increase government coercion. And Libertarians are for this? Huh?

    BTW, I have long supported civil unions. For maintaining that stance, I and people like me are now branded as bigots.

  24. FelineCannonball:

    It is amazing to me that purported libertarians have such strong opinions about the sexuality of other consenting adults and the additional taxes that should be levied on them as a consequence.

  25. cal_culus:

    Breeders have founder rights to marriage. Mimicry of heterosexuality is not equal though a few libertarians think it is.

  26. c_andrew:

    The public/private divide is not a red herring. Private discrimination for any reason should be protected. Public discrimination - any institution that wields the force of government - should be prohibited from any discrimination that does not arise from a differentiation of ability.
    Because we have failed to make this distinction, we have instances of Christians' rights of association being violated; the photographer in AZ, the bakery in OR, etc.

    Your example of the foreign service exam is not an appropriate analogy to the question of gay marriage as the exam is a means of determining if one has the capacity to function in the job at hand and gay marriage is a question of the right of association. A right which is required to go in both directions; you cannot assert your right to associate with someone who does not want to associate with you as it only works when the consent to the relationship is mutual.

    So, by saying that the gov't can deny the formalization of a particular relationship between consenting adults, you are saying that the gov't (which, after all is "Society's" force wielder) fiat trumps individual rights. Are you sure you want to go down that road?

    Here we're talking about gay marriage, but it wasn't so very long ago that certain Catholic institutions were faced with gov't mandated actions that ran counter to their doctrine. It violated their right of conscience, right of association and right of contract. I would be more sympathetic to their plight but for the fact that Catholic institutions - like the United States Conference of Catholic Bishops and several of their monastic order based charities had been lobbying for National Health Care since the failure of Hillary-Care in the early 90s, the passage of which, in the form of Obamacare violated MY right of contract, association, and conscience.

    If one is willing to enforce one's preferred moral outlook upon other consenting adults, it is special pleading to say, when it comes around to you, that gov't fiat is justified in the first case, with which you (the Catholic Bishops) agree, but is not justified in the second case, which impacts you directly and with which you disagree.

  27. c_andrew:

    I think that you are missing the point here. Contracts require the agreement of consenting adults. Governments, according to our founding document, are instituted among Men to protect their individual rights. So if you can find a non-human animal that displays the capacity to understand and therefore can proffer informed consent to an agreement, the we can revisit the issue.

  28. treeher:

    Well, I don't know, the Foreign Service is denying me the "right" of association with them. And I'm ok with that because those are the rules. If I'm gay and the government refuses to acknowledge my marriage, I'm ok with that too. Those are the rules. But nowhere in the Constitution does it say that the government is obligated to recognize anyone's right of association. It's not "government's" decision. The people - through laws enacted by their elected representatives - have recognized the special condition of heterosexual marriage and have empowered government to legislate in that regard. If the people vote to recognize gay marriage, that would be ok with me. But I'd prefer that the government not be involved at all. Since it is I don't want to empower it any further to intrude on private affairs.

  29. c_andrew:

    The Constitution is a grant of enumerated powers to the gov't, not an exhaustive list of activities allowed to the citizens. Thus, if an action is not specifically granted to the gov't nor specifically prohibited to the citizen, the default state is that the citizen requires no gov't permission to act.

    You are arguing that either the gov't acting in its own sovereignty, or as a mouthpiece of a majority of the people, can pick and choose which voluntary contractual arrangements it will recognize. Remove the middleman and what do you have? A majority of people dictating - under threat of force - what relationships they will tolerate among consenting adults. There's a reason why the Founders referred to majority rule as mob rule. For a real life version of this, look what happens to individuals who dare participate in a cross-caste marriage in India.

    Once again, the analogy of the Foreign service exam fails. Let's look at it this way. If you argue that the failure of the Foreign service to provide you with a job is a violation of your right of association, then it is just as valid for a spurned lover to argue that his rejection by the object of his interest is a violation of his right of association. In both cases, the mistake being made is in not understanding that the right of association requires consent between the parties involved; in the first, such consent is based on some measurable proxy of the ability to do the job, in the second the consent (or lack thereof) is based on a reciprocation of romantic interest. If those conditions to do not obtain, the consent is not mutual; hence, no association exists to be recognized.

    This enlarges to embrace even ephemeral commercial relationships. If I find the task you request of me, even for remuneration, is repugnant to me for whatever reason, there is no reason, outside of an existing contractual relationship, why I should be forced to engage in the task which you want me to do. This is why the preservation of private discrimination should remain inviolate. Recognizing that private discrimination is merely the exercising of one's right of (non) association, the gov't should just butt out.

    The problem with the gov't getting into our business is not found in the gov't recognition of the mutually consented contract of gay or any other kind of marriage. It is in the gov't policy of prohibiting private discrimination where the gov't gets into our business by forcing us to accept interactions with people or institutions that we would rather not.

    Ideally the gov't would be required to acknowledge the associations of any citizens who wanted to formalize such associations. (This is an extension of the right of contract.) And the citizenry would be free to not associate with any such associations or persons as they choose. For instance, can you imagine state gov'ts going after a black soul food restaurant for not serving a group of people in Klan regalia? Or a Jewish restaurant for not serving a biker gang in Nazi uniform? So why is a Christian photographer brought under the hammer of state force? It is because the right of private discrimination has been obviated and now that it is in the province of state action, the desires of the politically connected special interest groups becomes paramount.

    If you want to strike at the root of this evil - gov't getting into our business - then the above paragraph gives you some direction.