May 29, 2008
In last week’s column, I wrote that the California Supreme Court’s May 15 decision extending the official designation of "marriage" to same-sex couples only heated up the marriage wars and guaranteed protracted litigation and legislation on all levels of government for years to come.
In this 5-4 determination, the majority held that California’s domestic partnership law, though virtually identical to its marriage statutes, violates the state Constitution’s equal protection provision by "denying the official family relationship of same-sex couples the equal dignity and respect that is a core element in the constitutional right to marry." The minority opinions contended that it was up to the voters, not the courts, to determine the legal definition of marriage.
Both of these viewpoints have their own merits; neither of them will solve the problem. Advocates of traditional marriage will ask California voters to approve a constitutional amendment defining marriage as the union of one man and one woman, thus overruling the court’s decision; if this succeeds, advocates of gay marriage will bring the battle to the federal courts as a civil-rights issue.
Whatever the outcomes, and there will be many, any governmental decree or popular vote favoring one definition will alienate and enfuriate those who believe in another. Tinkering with marriage is not like tinkering with the tax code. The meaning of marriage involves people’s deepest personal feelings and religious convictions, and when the state treads in this realm, it treads on hallowed ground.
Is there a solution to this controversy? Yes: to disestablish marriage, just as the U.S. Constitution disestablished religion. Recognizing that the state’s primary interest lies in enforcing contracts and encouraging and protecting stable personal and family relationships in multiple configurations, it would eliminate its marriage laws and enact a universal, neutrally-named law applicable to all contracting couples regardless of sex or even sexual activity. It would affirm the fundamental right to marry but let individuals, religious organizations, and other social groups determine for themselves what marriage itself is.
Extracting the state from the marriage business is not as far-fetched an idea as it may at first sound. Until relatively recently in the West, marriage was primarily the domain of family, community, and church; the state had little to do with it aside from the practicalities of settling questions of money. In England, Parliament’s first major incursion into marital matters did not occur until 1753, when Lord Hardwicke’s Marriage Act tried to abolish do-it-yourself or "common-law" marriages, requiring a license and a Church of England wedding (except for Jews and Quakers). The Act — designed more easily to resolve inheritance disputes — was roundly ignored by those whose children had nothing to inherit.
In the early years of the United States, monogamous marriage was seen by many in public office as part of the national identity as a "White Christian society," and legislation to standardize it began to accumulate on the books. In her concise and insightful study, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000), Nancy F. Cott writes: "At the outset, state laws set a few, known boundaries — solemnization took a certain form; marriages could not be bigamous or incestuous or terminated at will; adultery and fornication were crimes." Even then, it was the local communities — the "informal public," Cott calls them — that substantially regulated their own conjugal conventions. "A community’s shared belief in the morality and utility of its marriage practices forms part of its sense that it is a community," she writes. "The informal public exercised the forces of approval and condemnation that shaped prospective and married couples’ behavior." Thus cohabitation, and marriages between whites and non-whites, were routinely accepted in certain communities while officially prohibited by their state’s laws.
As American society began to homogenize after the Civil War, state legislatures sought increasing control over both marriage and non-marital sexual practices. In some cases, they liberalized local customs by expanding the grounds for divorce and recognizing a wife’s right to her own property. In others, they constricted them, often oppressively, by withdrawing legitimation to common-law unions and the children that came from them, and by criminalizing interracial marriages, homosexual acts, contraceptive use, and — conspicuously in Mormon Utah’s case — polygamy. By the twentieth century, both federal and state governments were also using the economic tools of the tax code and social welfare programs to promote monogamous marriage.
For all that, marriage remained a creature of culture; the effectiveness of the laws depended upon a uniform national consensus on what marriage and acceptable sexual behavior were and were not. When the consensus began to break down in the 1960’s, the web of morality-legislation quickly disintegrated. As courts identified and refined the right to privacy, laws prohibiting all manner of consensual sexual relations both within and outside of marriage were struck down, the adverse legal consequences of out-of-wedlock birth were eliminated, the exemption for spousal rape was removed, and non-consummation as grounds for nullity was obviated by no-fault divorce.
Further detaching the state from marriage, other forms of family relationships were accorded legal status in many or most jurisdictions: Unmarried parents were held to the same responsibilities of support for their children as married couples; adoption was extended to single people and in some states to same-sex couples; and "domestic partners" — not only same-sex couples but widowed persons over age 62 (to retain survivorship privileges) and in some instances even blood-relatives — were granted rights and benefits similar or identical to those formerly reserved to the married.
Thus marriage is now regarded by the laws of progressive states as one form of family relationship among others. Arguments for a privileged status for traditional marriage still advanced by some jurists and legislators — monogamous procreation, households headed by the biological parents — have de facto been done away with by modern family law. Add to this the resurgence of the open practice of polygamy among Mormons and some Muslims, and it is clear that culture is regaining its ancient control of marriage,and the state is now helpless to define it. If the Episcopal Church, to use only one example, cannot uniformly do it, how can a court, legislature, or referendum do it?
The only equitable solution is the separation of marriage and state. I’ll explore the practicalities of this idea next week.