Same-Sex Marriage Part 2: Why License Marriage?

As my Gentle Readers might have suspected, my in-box has been filled with all manner of invective over the previous essay. (It's always amusing to get so much vituperative correspondence here, seeing that my average daily traffic is so low.) Among the most important rational questions any of them raised was why should government be involved with marriage at all?

At last! A non-trivial question worthy of a thinking mind!

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Marriage licensure in the United States is only about 150 years old. It finds some of its roots in the social turmoil that followed the Civil War, when the defeated Southern states were striving to retain as much of their antebellum culture and legal edifice as possible. Licensure in those places and times aimed at the prevention of miscegenation: the marriage of persons of two different races.

We have a different view of such things today, of course, but it must, in all candor, be noted that Nineteenth Century attitudes toward miscegenation were almost uniformly negative, even damning. Nearly everyone in the Western world believed firmly in the immiscibility of the races. That the races did interbreed was a shameful semi-open secret, one whose Caucasian practitioners were careful to conceal.

It wasn't until the famous Loving v. Virginia case reached the Supreme Court in 1967 that any counterstroke to state laws against miscegenation was to occur. The decision struck down Virginia's assertion that its laws against racial intermarriage were a reserved power under the Tenth Amendment, simultaneously nullifying all similar laws that remained on the books in other states. Thus, the original rationale for state licensure of marriage fell roughly a century after the inception of the practice.

But that was the original rationale, not the only one.

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In the erection of a polity, those subject to it must necessarily allow that the State will possess a conceded power to coerce them in defined ways. The most important of those ways is in the enforcement of justice: for a State to have any degree of authority at all, "public justice" must replace "private justice."

I don't claim that this is necessarily a positive evolution, just that it's inherent in the nature of government. The sole power universally conceded to a State is the power to defend its subjects and territory against other States. This implies the power to punish treason, which drags behind it a public-justice structure and a corpus of penal law, whatever its actual content might be.

But once a system of public justice has been created, it will automatically subsume contract enforcement. The enforcement of the terms of a contract will always involve the imposition of duties or payments upon an unwilling obligor: the use of coercive force to compel the performance duties or payments which would otherwise not occur. The enforcement of the marriage contract, with its three-millennium-long freight of associated obligations, is a part of what follows.

The most important aspect of the marriage contract today is what attends its dissolution: recognized liberation of the parties; agreements upon the division of property; alimony; child custody and child support. Before State licensure, these were matters to be worked out by the divorcing couple, usually under supervision by their neighbors and their church. Public justice moves that duty of supervision into the State's realm. (Of course, today's unbelievably permissive divorce culture has radically increased State activity in that domain, but that's a subject for another screed.)

The implication of any demand that marriage be privatized -- i.e., that the requirement for a marriage license be repealed -- is that the State should no longer have any role in the enforcement of a marital contract. Should a couple decide to formalize its obligations by a privately-drawn contract, the State's justice system would still have a rationale for involvement, but in the antebellum style of marriage that created no such document, it would have no place:

• Bigamy laws would become unenforceable.
• The obligations of marriage would become a matter of opinion.
• Divorce and its repercussions would need to be settled by private means.
• Questions of parentage, legitimacy, and inheritance would be similarly reserved to private mechanisms.

Mind you, this is not unthinkable; American society got along quite well in such a fashion before marriage licensure. But convincing Americans generally that returning to such a regime would be workable, much less desirable, would be quite an effort.

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To sum up: We expect the State to see to certain duties, on the assumption that "it's better that way" -- that private mechanisms would produce less desirable results. State supervision of the marital contract -- most importantly, the consequences of its dissolution -- is a regular facet of life today. He who argues for the privatization of marriage must expect to confront the objections suggested by this discussion. They aren't insuperable, even given today's much less serious attitudes toward the binding nature of marriage, but the convictions of men are seldom malleable by reason alone.

Indeed, he who argues for the privatization of marriage is within a hair of arguing for the complete elimination of the State -- also not unthinkable, but a very tough row to hoe. So be circumspect about the battles you pick!