Government, Get Out of Marriage

In his most recent column for The New York Times, David Brooks added interesting insight to the inveterate psittacism of elite opinion in the so-called gay marriage debate. His piece, aptly titled “Freedom Loses One,” does not place a normative value on the progression of gay marriage’s inevitability as a component of American society. Rather, it looks at the institution of marriage as a whole and recognizes that such an institution is inherently illiberal in the classical sense. “Marriage,” he writes, “is one of those institutions…that restricts freedom. Marriage is about making a commitment that binds you for decades to come. It narrows your options on how you will spend your time, money and attention.” Matrimony, in short, puts shackles on human liberty and forces two parties to surrender their personal freedom to the caprices of the government. While Brooks does not go so far as to condemn such capitulation (he instead cites Burke’s insistence “that men of intemperate minds cannot be free”), this oft-ignored truth is patently problematic. As such, freedom fighters and gay rights advocates alike should address the real issue—the government needs to stop meddling in the contractual institution of marriage.

Marriage is most certainly an institution, as every defender of “traditional marriage” will go through pains to remind you. But of what sort? Social conservatives will say it is a religious one, and such an assertion would not be untrue. LGBT activists will say it is a primarily government-sanctioned one of societal import, and this reading would also be correct. In American society, getting married comes with a host of tax breaks and the right to take care of children. Then again, so do civil unions. It is somewhat difficult to eloquently describe the value differential between marriage and civil unions, with the current prevailing argument being the rather compelling one that gap between the two is based wholly on discrimination in a two-tiered system.

As it stands, the difference between a civil union and a marriage is really about legitimacy. As gay rights proponents rightly point out, same-sex couples in civil unions miss out on many unenumerated benefits of marriage, like the right to take time off from work to care for a family member or the right to sponsor a spouse for immigration. These inequalities don’t stem from inherent persecution on the part of the codifiers of the civil relationship but simply from the tradition of marriage in this country’s legal system. In other words, marriages are simply seen by the law as more legitimate than civil unions. Last time I checked, government wasn’t really in the legitimacy business; it is constitutionally required to be in the general welfare business. This business deals with the functioning of a healthy society and not intercession into the private activities of sexual intercourse.

Of course, the reasons for government recognition of marriage say little about sex between consenting adults. They are more technocratic, involving financial dependence and the compositions of households. This makes sense—it is in the government’s interest to determine how homesteads are operating. Yet, as it currently stands, people who claim to be “in love” do not have to pass any sort of test proving their societal interdependence. All they need is for their church to sanction them and the government immediately follows. This seems to be a blatant contradiction of the principle of separation of church and state.

Marriage has been under religious purview for centuries. Although social conservatives aren’t quite right in saying that marriage was born as a religious rite, it still stands as an institutionalized component in most belief systems. I don’t see the government issuing certificates honoring baptisms or confirmations. (Nor should they start!)

While religious marriage is based on the principles of heavenly love and eternal commitment of souls, secular marriage is obviously less philosophical. The government does not care if you truly love your spouse before God, nor should it. It cares only if you and your spouse have entered into a civil contract meriting state-provided benefits. And, unlike most churches, the government believes such a contract can be neatly abrogated through a divorce.

This is the key difference between marriage in the eyes of the government and marriage in the eyes of the church. Governments see marriage as a contract, while churches see it as a divine union. This distinction is crucial, and the fact that both relationships use the same terminology is problematic. It lends credence to the notion that a government is overstepping its bounds and regulating morality. In some sense, this is inevitable, as the government is bound in its definition of marriage by many facets of the church. By their nature, churches restrict the freedom of their parishioners, as they try to foster sound moral conduct.

The government should not have such leeway in its actions. Letting it issue so-called marriages allows it to regulate morality. This is not the stated purpose of a government-sanctioned marriage, but the shared lexicon gives it such authority. This needs to change. The government needs to stop dictating conduct and focus on the legal rights engendered through enjoinment in a civil union. The government is powerful enough as it is—let’s try to limit its ability to be sanctimonious as well.

John F. M. Kocsis ’15, a Crimson editorial writer, is a government concentrator in Eliot House. His column appears on alternate Fridays.