Marriage and the State

Today I went to a debate between two distinguished law professors with the subject "Same-Sex Marriage and the Constitution."  I was a bit annoyed that there was almost no discussion of the Constitution and absolutely no mention of the role of federalism in this controversy.  My sympathies were more on the side of the professor defending traditional marriage, but I got the distinct impression that most of the audience was of the opposite inclination.  Thus, I was rather impressed with the professor's courage in standing up in front of a hostile audience and effectively defending his position.  That being said, I disagree with both of the debaters in an unconventional manner: I think the State should get out of the business of marriage, and that this would be to the advantage of traditional marriage.

To help explain the first part of my position, consider the following: currently, the State requires that every child attend a State-approved school for a number of years.  At these schools, children study natural science, including the theory of evolution.  Some people believe that an alternative idea, called intelligent design, should be taught alongside evolution.  There is a great deal of vituperative exchange between the two camps, and each tries to sway public opinion and influence policymakers in their favor.

Now surely this issue requires a fair bit of knowledge regarding biology and the philosophy of science to judge properly.  However, the only reason this is an issue for the public is that some people believe that their children will be forced to study ideas which they consider false.  (There are, of course, some people who object to any child being taught something they consider false whether they are forced to or not, but it is to be hoped that they would not resort to the sword to correct any such heathens' practices.)  If we remove the requirement that children attend a State-approved school, then this issue vanishes as children are instead taught, or not taught, on an individual basis whatever their parents wish to teach.

Returning to the problem of gay marriage, currently the State demands that those who wish to get married must receive license from the State in order to do so.  Thus, to whom the State grants this permission has become a issue concerning the entire body politic.  Surely, as with education, the superior answer is to remove the State from the picture so that people may "marry" in whatever way they choose.

My claim is actually a bit more subtle than that--rather than all standards for what constitutes marriage being abandoned, the task of performing such a determinations would be returned to society at large.  By removing the State from this matter, people could claim to be "married", but their claims would have to be accepted by the people around them in order to be considered genuine.  Put more succinctly, people must consider unions legitimate in order to accept them.

In case I didn't make this clear above, I am not in favor of gay marriage, whether under the current State-based system or under any other system.  This is not because I have anything against gay people, either as individuals or as a collective.  Rather, I simply have a fairly firm idea of marriage that happens to exclude them: marriage is a specific relationship between a man and a woman sanctioned by custom or religion.  This is a historically based idea, but I think it also should make some intuitive sense.  When we speak of the "marriage of X with Y", there is the connotation that X and Y are different in some significant way.  We would think it very odd to speak of the "marriage of red with red", and I think in a like manner that the "marriage of man with man" or "marriage of woman with woman" would seem somehow wrong.  This is not intended as a water-tight argument, merely as an explanatory reason.

But I claimed above that I think freeing up marriage would somehow make the position of traditional marriage stronger--how could that be?  Right now, traditional marriage is fighting on open ground against a much more energetic and numerous force.  By retreating to a more fortified position, we can let the enemy forces batter themselves into oblivion and claim the field when they are destroyed.  In plainer language, we cannot win our case in the field of positive law because our case rests more on tradition, something which carries very little weight in the political realm.  When we don't have to make legal arguments for why we should not reinvent a fundamental and natural aspect of civilization, I think we will ultimately be able to hold our ground better.

Now, this does involve ceding some territory to gay marriage.  If same-sex relationships are considered acceptable, then they will be accepted.  However, I do not expect that they will generally be considered on par with traditional marriage, which will continue to hold an elevated position in our society by virtue of its standing in tradition and its sort of natural basis.  This also allows us to avoid the feared slippery slope.  The reason why incest, polygamy, and other fetishes are not accepted by society is because people do not find these things acceptable.  No explicit justification for this is required, though it certainly can help.