Gay Marriage: A Way Out, Part 4

This is part four of a series. Read part one here, part two here, and part three here.

In my previous post, I argued that the government does not have a general policy of favoring marriage over relationships. (On the contrary, in some ways the government’s policies disfavor marriage.) Rather, the government has a variety of policy goals (tax fairness, care for household members who have lost the primary breadwinner) and uses the legal status of marriage as a shortcut towards achieving them. In principle, government policy can be carried out without reference to marriage at all.

There is, however, one important exception to the general rule that the legal consequences of marriage do not favor marriage. In the view of many on both sides of the debate, government recognition of marriage per se signals the government’s approval of those relationships that it calls “marriages.” Marriage traditionalists want the government to approve only opposite-sex marriages, while same sex marriage advocates want the government to approve same-sex marriages as well. The debate comes down what message the government should be sending.

In principle, the government could cease taking any position on which relationships are correctly called “marriages,” in the same way that it could discontinue any of its other policies implicating marriage. Government bureaucracies, that is, could simply stop issuing marriage certificates altogether and stop their referring to any particular relationships as “marriages.” (Alternatively, they could issue marriage certificates to all who asked for one, no matter what the grounds. Under this policy, one could be officially recognized as “married” to more than one person, or to a rock, a boat or dog, or to oneself, or to anything else. I do not recommend this policy.) Believers in marriage equality should support this policy — often dubbed marriage “privatization” but which really should be called marriage freedom. In my final post, I argue that marriage traditionalists should as well.

Start with marriage equality. Logically, there is no such thing as an equal right to compel a government bureaucracy to issue a statement that your relationship to another is a “marriage.” The reason is that people disagree on what relationships deserve to be called marriages. For some, the class of relationships that the government calls “marriages” will always be too narrow. Thus, many denounce those governments that won’t recognize same sex relationships as marriages. Even when governments do recognize same sex marriage, they will still be denounced by polygamists or those seeking more eccentric marriage possibilities, such as polyamorous marriage (marriage among multiple men and/or women), bestial marriage (marriage to an animal) or autogamous marriage (marriage to oneself).

For others, the class of relationships that the government calls “marriages” will always be too broad. In states that recognize same sex marriage, for example, many marriage traditionalists feel that the government has demeaned opposite sex marriages. Typically, the feelings of marriage traditionalists are pooh-pooh’d. What’s the harm to them? Yet advocates of government-recognized same sex marriage would feel similarly demeaned if the government started calling, say, autogamous marriages as “marriages,” for they rightly feel that government endorsement of autogamous marriage would make a mockery of both same-sex and traditional marriage. The right to government endorsed marriage is thus inherently a right to have the government discriminate against others. Such a right by definition cannot be enjoyed by everyone.

One can of course argue that, notwithstanding all these absurd hypotheticals about bestial marriage or marriage to oneself, in reality only certain kinds of relationships have the features that make them deserving of being called “marriages.” For marriage traditionalists, only a lifelong union between a man and a woman deserves to be called a marriage. For same sex marriage advocates, only a lifelong union between two adults deserves to be called marriage. I do not necessarily disagree. But as soon as one says that the government should take a position on the question, one has abandoned the principle of equality.   One has instead assumed that the government should impose one “comprehensive conception of the good” rather than another.

Even if we do make that assumption, the arguments in favor of the view that lifelong unions between two adults deserve special government recognition are weak. Typically, the argument begins with the observation that some people are born with a set of sexual and romantic desires that make it impossible for them to find fulfillment except in a lifelong union with another adult. Well, others are doubtless born with very different sexual and romantic desires. Some may only be able to find fulfillment in polyamorous relationships. A small number are actually born sexually attracted to themselves. To be sure, very few people actually want to marry themselves. But it is equally true that relatively few actually want to marry someone of the same sex. At the very least, the arguments in favor of adopting a “comprehensive conception of good” that favors lifelong monogamy between two adults are no stronger than the arguments in favor of traditional heterosexual marriage.   The movement for government-recognized same sex marriage is more powerful than it is persuasive.

Rightly understood, it is an illiberal movement. As many have argued, it poses “slippery slope” threats to freedom of association and freedom of speech. Even apart from those threats, the movement in essence seeks the soft coercive powers of the state to compel assent to a particular point of view. As Andrew Sullivan wrote just recently, in response to the point that gays don’t actually need government-endorsed marriage in order win the right to visit their lovers in the hospital, “the only way to demonstrate with adequate seriousness the relationship between two people of the same gender, especially when confronting prejudice or just plain ignorance from random hospital staffers, is with a marriage license.” In other words, Sullivan wants government recognition of same-sex marriage so that he can change minds. Perhaps minds should be changed. That does not mean that government should be doing the changing.

Believers in marriage equality must oppose government endorsement of same sex marriage — just as they must oppose government endorsement of opposite sex marriage. Does this mean that they must oppose marriage altogether? No. Remember that marriage is a complex of features, of which government endorsement is but one. Remove that one feature and marriage does not just disappear. Marriage existed for thousands of years before the modern state even came into being. Government classification is no more necessary to maintain the institution of marriage than, say, joint tax returns. Indeed, as I will argue, traditional marriage would be better off without it.