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Wednesday, June 26, 2013

DOMA, Hollingsworth v. Perry, and Marriage Equality: Why the Government Should Not Regulate or Define Marriage

Gay rights demonstrators
outside the Supreme Court today.
                Today, the Supreme Court ruled that supporters of Proposition 8 lacked standing in the caseHollingsworth v. Perry, a decision which will eventually lead to the State of California recognizing same-sex marriage. Additionally, the court decided in Windsor v. United States that the federal government must recognize all lawful marriages between same-sex couples, thus overturning key parts of the Defense of Marriage Act

             Opponents of the decisions argued that the government should only recognize marriages between a man and a woman. Other opponents felt the ruling in Hollingsworth did not go far enough and argued all states must recognize same sex marriage. However, both sides argued the government should recognize marriages in some form. They are both wrong – government’s sole role in this area should be enforcing contracts between the involved parties. Deciding what is and is not “marriage” should be left to religious institutions and the consciences of individuals.
                Under marriage privatization, the government would not issue marriage licenses to any couples, gay or straight. Instead, the highest recognition they could issue would be a domestic union, or some other similar term. This would carry all the benefits of marriage except the name. For instance, if one spouse was seriously ill, the other would serve as medical proxy. If one spouse died, the other could inherit the estate tax-free (the merit of inheritance taxes in the first place is beyond the scope of this article.)
It should be the role
of religious institutions
and individual conscience
to define "marriage".
 If a couple wanted a marriage for religious or personal reasons, they could go to a church or other religious institutions. These institutions could choose whether they wish to perform same-sex marriages in accordance with the teachings of their religion. These marriages would be purely ceremonial and carry no legal meaning.
Interfaith or non-religious couples who want a marriage could get one too. While only justices of the peace, judges, and a select few other groups can perform secular marriages today, anyone would be able to officiate such a ceremony under marriage privatization, provided all involved parties consented. For instance, a mutual friend could be chosen to officiate if the couple desired.
At the end of government-sanctioned marriage ceremonies, the minister, judge, or other official says “by the power vested in my by the State of Connecticut, I now pronounce you husband and wife.” Under marriage privatization, however, the official would not need any government-granted power or authorization since only the domestic union contract has legal meaning. How exactly the statement is phrased would be up to the couple, but would probably resemble “By the power vested in me by this couple….” After all, it is the couple, not the state, who is giving this person permission to perform the ceremony. Marriage would be a private issue, not a government one.
A polygamous family. It should not
be up to the government to decide
for everyone whether this is
"natural" or not.
Of course, up until this point, we have been talking about “couples.” There is no reason why government-issued domestic unions should be limited to two people. Although many people consider polygamy to be immoral, families who do feel it is moral should be able to practice it and have the same rights as everyone else. Creating the domestic union contract would be somewhat more complicated with more than one spouse. For instance, a husband would have to designate one wife as his medical proxy. There are multiple other benefits which could only be used by one person. However, as the domestic union is just a contract, this could be easily remedied. For instance, a man with two wives could designate one as the medical proxy and the other as the executor of his estate if he dies.

As with same-sex marriages, any religious institution would be able to decide whether or not to perform polygamous marriages. For instance, at one point the Church of Latter Day Saints, better known as Mormonism, recognized polygamy, although they no longer do so. Again, no religious institution would have to officiate a “marriage” that they considered sinful or did not recognize. If a polygamous family could find no religious institutions willing to perform their marriage, they could choose the secular option, and anyone who was willing to do so could perform the ceremony with the family’s consent.
Jimmy McMillan, who
spoke in favor of
person-shoe marriage
at CPAC in  2011.
During the 2011 Conservative Political Action Conference (CPAC), Jimmy McMillan vowed to personally perform marriages between a person and a shoe if the person wanted him to.) In light of McMillan’s comments elsewhere at the event, he was probably not being serious – other lines include “They asked me, ‘Mr.  McMillan, what are you going to do about abortion?’ I’m hungry now; I want a hamburger with cheese.”  
However, man-shoe marriage does raise some interesting questions for libertarians. A shoe is not a person, so it clearly cannot enter into a domestic union contract. Even if the contract somehow did get signed, the shoe would be unable to perform most of the responsibilities, such as making decisions as a medical proxy. But should ceremonial marriages between a person and a shoe be allowed?
On one hand, the shoe cannot consent to entering into a marriage. On the other hand, the shoe is property, and does not have to consent to anything. Therefore, (assuming someone like McMillan is willing to officiate this ceremony) the same laws would apply to marrying a shoe as to using property for any other reason. If a person owns a shoe, marrying it falls under property rights. A responsible official would require the person to prove ownership of the shoe before agreeing to do the ceremony. Of course, if the person does not own the shoe, he would require consent from the owner, just as he would require consent of the owner to do anything else with the shoe. Although man-shoe marriage may seem completely ridiculous, there is no reason for libertarians to prevent it, assuming all involved parties consent. 

While it might seem unusual
for this shoe's owner to marry it,
there is no reason for the
government to prevent it.
However, in this case there would be no legal benefits due to the shoe’s inability to enter into a
contract. In my opinion, that person would be better off finding a person to marry. But it would be wrong to force my definition of marriage, whether that means only heterosexual couples, all couples but nobody else, any number of human beings, or the “anything at all” definition that would include human-shoe marriages, on anyone else.  The definition of marriage should be left to religious institutions and individuals, and the government’s sole role should be to enforce the contracts.

1 comment:

  1. Headline at The Hill this morning: Gays now big nationwide push for benefits.

    Libertarians got played bigtime. This was all about the almighty $$$. Never had anything to do with the "freedom to marry." Just more moocherism off of the taxpayers, those of us still too stupid to work for a living.

    Get some rest working America. Millions on welfare, and now millions more gays on welfare, depend on you.