From the pages of Time magazine to the Honolulu Star-Bulletin and everywhere in between, I've heard numerous calls for government to "get out of the marriage business." The heated national fracas over gay marriage has caused some to question whether government should have anything to do with marriage as a social institution. If I may paraphrase, the argument usually goes something like this:
Marriage is a church issue, not a state one. Since marriage is a private agreement between two individuals, it should not be subject to government interference. Just as one's personal religious beliefs should not be a matter of public debate, neither should someone's marriage. If the government doesn't regulate people's baptisms, confirmations, Bar Mitzvahs or other religious ordinances, what gives them the right to meddle with marriage? Most of the political-religious controversy surrounding same-sex marriage could be resolved if the government would simply stop issuing marriage licenses. This would allow states to maintain religious neutrality by not promoting or discouraging any form of relationship over another. People could define their relationships according to their own beliefs, religious or secular.The appeal of this reasoning plays well in today's post-religious climate. Most people don't want the government telling them what to believe, who to love or how to behave in their private lives. Ceasing the government’s role in the recognition of marriage, so the theory goes, would be a way to validate gay partnerships in the civic square while protecting the religious freedom of churches and clergy. By simply removing the dreaded M-word from the vocabulary of government, we could all put away our bullhorns and go home happy.
Or could we?
These days, it's nearly impossible to discuss the civil-legal institution of marriage (namely, the kind of thing conferred by a marriage license) without opening a religious-political can of worms. Perhaps I'm naive to attempt such a feat, but instead of discussing the theological nature of holy matrimony (which in my Protestant tradition is a sacred, lifelong covenant uniting a husband and wife as "one flesh" in the sight of God) or adding my voice to the cacophony surrounding the politics of gay marriage (been there done that), I would like to address the following question: Is there any solid non-religious (dare I say "secular") basis for the government to issue marriage licenses?
The short answer is yes.
While some well-meaning libertarians and others see the elimination of civil marriage as a means of resolving the gay marriage controversy, this would create far more problems than it solves. It’s not that I believe government should be promoting a particular religious agenda or regulating what goes on in private between consenting adults. Nothing could be further from the truth. My concern is that political bickering over the issue of same-sex unions has caused us to lose sight of marriage's much broader sociological purpose beyond religious ceremonies and warm fuzziness shared between committed partners, gay or straight. In the public square, marriage is not merely about religion or sexual orientation. It's about the fundamental need for societies to gauge the comparative significance of human relationships.
To put it bluntly: Marriage provides a measuring stick we cannot do without. We can tweak it, re-think it, re-name it ("civil unions" or "domestic partnerships" anyone?) or re-define it however we think best, but until we decide that drinking buddies and pen pals should receive the same benefits and protections as couples who have pledged a lifetime of commitment to each other, government will always play a role in the so-called "business" of civil marriage. Even if marriage licenses were abolished and replaced with civil unions as some have suggested, I suspect most of the voices so loudly engaged in the gay marriage standoff would quickly re-direct their energies to the laws governing civil unions.
Let's say the government stopped issuing marriage licenses altogether and as an alternative to civil marriage, couples could create their own private contracts that would be enforced through contract law. Administering pensions, inheritances and custody battles would become more difficult, but not impossible. The bigger question would be how to legally distinguish between those who wanted an “old school” lifelong partnership type of arrangement (gay or straight) versus a pragmatic contract between drinking buddies who wanted to save money on health care coverage. Without the draconian categories of "single" and "married", what other simple criteria would employers and health care providers use to determine the seriousness of a relationship and consequently, who qualifies for benefits?
For example, if I signed a private civil contract with one of my friends who has a terrific health care plan or education benefit for "spouses", would his employer be willing to cover my medical expenses and pay for my grad school tuition since we signed a similar contract to the married couple next door? Would such a contract excuse me from testifying in court against my friend, as married couples are? If I were to obtain a “divorce” or terminate my contract with him, could I sign another contract with one of my international friends to secure U.S. residency for them, as married individuals can? What about those employers who actually DO want to provide certain benefits to an employee’s spouse (defined in the old-school, marriage license sort of way) instead of just a drinking buddy or casual acquaintance? If there were no civil marriage, would such an employer be guilty of discrimination for offering "special" benefits to certain types of contract signatories and not others?
As a deeply religious person who cringes at the conflation of God and country, I can understand why some people would like to throw the civil marriage baby out with the political bathwater. But just because the word “marriage” (a perfectly good and practical concept, even for non-religious folk) has become associated with culture war carnage does not mean government recognition for lifelong partners is a bad idea. Judging by the eagerness of gays and lesbians to obtain government validation and not merely sign a private contract, maybe there is something special about marriage licenses after all.