Marriage and the Public Sphere

This article by John Coleman takes aim at the spate of marriage laws and disputes that have been in the news recently. Unsurprisingly for a Reason writer, Coleman advocates for getting the state out of the business of marriage entirely, and replacing its presence with. . . what exactly?

There should be no federal or state license that grants validity to love. There should be no state-run office that peers into our bedrooms and honeymoon suites.

. . . if tax-codes and guardianship need some classification for couples, let’s revise civil union standards to reflect those needs.

So the solution to disputes over marriage and public morality is to replace the current system wherein one generally:
1) Gets a license from the state to prove civil status in legal and tax matters, and then
2) privately celebrates their marriage in the manner they see fit, in a ceremony performed by a religious or non-religious officiant of their choice, or with no ceremony to speak of if they prefer

With a new system where:
1) Federal or state civil union statutes would determine legal and tax status, while
2) Individuals would chose a spouse and a way to celebrate their union in any manner they choose, free from state intrusion.

See the difference? Me neither.

Coleman’s system amounts to little more than a name-game, in which the civil status of a marriage is renamed ‘civil union’. Calling every marriage a civil union (Coleman’s proposal) is no more of a solution than calling every civil union a marriage (the current situation).

There are already thousands of couples in the United States who cohabitate, raise children, and may have celebrated their union in some personal or religious way, but whose union has no legal recognition. Saying that these couples are ‘married, but not civilly joined’ does not fix their situation; the real problem is not that couples can’t call any old relationship ‘marriage’ without state approval, but that without state approval they are denied the benefits of a state-sanctioned relationship, whatever name it goes by.

Once social conservatives realize that the legal ‘meat’ of marriage is embodied in civil unions, there will be the same calls for restricting civil unions that currently apply to marriage. The simple fact is that so long as there is any recognition of marriage-type relationships anywhere in the government (be it taxes, child custody, or medical decisions and power of attorney), the government is going to have to regulate what is and isn’t a legally sanctioned relationship, less the unscrupulous abuse the system for their own ends. As long as the government is in the business of acknowledging relationships, the criteria for that acknowledgement is going to be a political football, with social conservatives and liberals each pushing for a definition that normalizes marriage around their own ideals.

I certainly found the legal procedures for marriage a little odd, when I went through the process myself. Most strange to me was the idea that a judge could be cited in California for performing a ceremony for a couple who did not have a marriage license. The fact that some sort of magical efficacy still seems to be placed in the ceremony of marriage itself in the state’s estimation is a clear link back to the days when marriage was seen as a more clearly religious issue. Certainly, in states where there are arbitrary barriers to entering and leaving marriage (waiting periods, counseling requirements, status requirements for officiants of marriages, and the absence of no-fault divorce laws), those should be removed. Marriage has never been an entirely private affair, and it’s doubtful that it ever will be. In the meantime, those who want the benefits of state-sanctioned union must continue to fulfill the state’s requirements for acknowledgement. The critical thing now is to force states to adopt definitions of marriage that are as fair and equitable as possible, even if it rankles the religious sentiments of some Americans. Playing name-games and imagining marriage in some imaginary, wholly private space does nothing to advance that effort.

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