Getting the State Out of the Marriage Business in California

According to a Sacromento Bee news article today, two college students are circulating petitions for a California ballot initiative that would replace the word “marriage” with “domestic partnership” in state laws, thereby allowing straight and gay couples alike to enjoy all of the benefits of marriage currently offered by the state.

Earlier this month, a Los Angeles Times editorial noted that a California Supreme Court justice had raised the question of getting the state out of the marriage business at a hearing on Proposition 8, which banned gay marriage by a narrow vote last November:

What if California got out of the marriage business altogether? What if the state merely licensed or just recognized private, contractual civil unions with all the benefits of marriage, and couples went to the religious or private institution of their choice to sanctify their vows? Would that resolve the legal differences between Proposition 8 and the state Supreme Court’s 2008 ruling that gay and lesbian couples were entitled to the same marital rights as heterosexuals?

These were the questions Justice Ming W. Chin posited during oral arguments on the proposition Thursday before the high court. To which both sides responded: Why, yes, it would.

While this approach would represent a positive step in ensuring equal rights, government would still be in charge of issuing licenses to couples and offering certain benefits. To truly get out of the marriage business, government should dispense with licensing marriage in the first place.

I addressed this theme in an Orange County Register op-ed last August:

By politicizing a private matter—deciding to whom one may pledge one’s love, support, and fidelity—opponents of same-sex marriage have created a world of winners and losers where once there were only voluntary promises. Gay-marriage opponents thus are wrong to insist that they have the right to decide 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 marriage should be a religious institution or a secular social commitment) not only for themselves but for everyone else as well.

Similarly, same-sex couples should not be able to force their notion of marriage on others, either. Religious leaders or others who would perform marriage ceremonies have every right to refuse to marry couples for moral, philosophical or other reasons. Private business owners should be able to decide for themselves whether it is in their interest to offer group health benefits, family-leave benefits, special mortgage loan rates, etc., to gay couples as well as to straight. Furthermore, businesses should not be compelled by law to offer any particular benefits to any employee.

In addition, gay-rights activists are wrong to petition the government for “equal” marital status. This demand merely perpetuates the politicization of what should be a private matter. These activists would better serve their interests by arguing that the government should not be in the marriage business in the first place.

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