Commentary

Reason.org
November 11, 2005

Outing Government from Marriage
Privatizing marriage would be best for all sides of debate
By Adam Summers

Election Day was a split decision for those involved in the gay-rights debate. In Texas, the state overwhelmingly passed, by a three-to-one margin, Proposition 2, a constitutional amendment that prohibits same-sex marriage and the recognition of "any legal status identical or similar to marriage." Texas became the 19th state to pass such an amendment. In Maine, however, voters solidly rejected a proposal that would have repealed legislation passed earlier this year that expanded the state’s civil rights act to prohibit discrimination based on sexual orientation.

Gay marriage has been one of the most explosive and divisive issues across the nation in recent years. But while the current debate has focused mainly on definitions of "marriage" and "civil unions" and which benefits gay couples should be eligible to receive, it really misses the larger issue, namely, whether or not government should be involved in marriage at all.

The decision to enter into marriage is a profoundly personal one that should not be infringed by those who are not party to the decision. In a free society, one must have the freedom to make such decisions—and act upon them—without the interference of government or other unaffected parties. People should also be free to "defend the sanctity of marriage" as they define it (although with high rates of divorce and infidelity, "deadbeat" and otherwise irresponsible parents, and Britney Spears-type weekend weddings—the first one, this battle may already be lost) and choose to recognize same-sex marriages—or not—as they see fit. It is only the intervention of government that makes these goals incompatible.

According to a January 2004 U.S. General Accounting Office report, there are 1,138 federal benefits that are contingent upon (heterosexual) marital status, or for which marital status is a factor in determining eligibility. At the state level, there are up to several hundred additional benefits. These benefits include Social Security spousal allowances and survivor benefits, the ability of widow(er)s to inherit retirement plans tax-free, numerous other tax breaks, adoption privileges, group insurance rates, community property, medical powers of attorney, etc.

By conferring special benefits on married couples, and then defining a legal union as between a man and a woman in the 1996 Defense of Marriage Act, the federal government has politicized a private issue. State and local governments have likewise encroached upon the ability to marry by offering benefits to straight couples and imposing licensing requirements to show proof of eligibility for the goodies.

By politicizing a private matter—deciding to whom one may promise his or her love, support, and fidelity—politicians (and those who endorse the marriage laws they have passed) have created a world of winners and losers where once there were only voluntary covenants. Gay marriage opponents are thus wrong to insist not only that they have the right to decide for themselves how marriage should be defined (i.e., whether it should be sanctioned only if it is between a man and a woman, or even whether the nature of marriage should be a religious institution or a secular social commitment), but that they have the right to decide for everyone else as well.

Gay marriage supporters are also at fault, however. Gay rights activists are taking the wrong approach by petitioning the government for "equal" status. This merely perpetuates the politicization of what should be a private issue. They should instead argue that the government should not be in the marriage business in the first place. Heterosexuals that believe in individual liberty should join them in this effort.

Just as individuals should decide for themselves whether, how, and whom to marry, individuals have the right to decide not to recognize the marriages of others (for moral/religious reasons or any other reason). This is no less true for individual employers. Employment agreements constitute a mutual agreement (presumably for mutual benefit) between the employer and employee. Any employment terms (including group health benefits, family leave benefits, etc.) must be resolved by bargaining between the two parties.

Marriage, whether entered into by those who consider it a sacred religious covenant or a secular social bond and contract, is a profoundly personal decision between those in love. The sanctity of marriage must be defined by the individual—or couple—not an interest group and certainly not the government. There simply is no role for the state in marriage.

Adam B. Summers is a policy analyst at the Reason Foundation.