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.

2012 Presidential Election Third Party Coverage - Tiffany Briscoe, Boston Tea Party (DROPPED FROM BALLOT)

Another segment of our continuing coverage of third party candidates features Boston Tea Party candidate Tiffany Briscoe. This does not constitute any endorsement or agreement by me of any kind unless otherwise stated.


Update March 10, 2012: It appears Ms. Briscoe misrepresented her qualifications to the Party. She has been dropped from the ballot and replaced by "none of the above". Her answers will be kept below.

Candidate name: Tiffany Briscoe
Vice President: Kimberly Johnson
Party: Boston Tea Party
Website: http://tiffanybriscoe2012.weebly.com/index.html

The State, Gay Marriage, and "Equal Rights"

This week, the New York State Legislature is expected to vote on whether to legalize gay marriage within the state. Celebrities have, pardon the pun, come out on various different sides of the issue. Most are extremely supportive. However, some are ardently against it, including former New York Giant and Super Bowl hero David Tyree, who said that gay marriage would "be the beginning of our country sliding toward ... anarchy". (Although some of my fellow UConn students in UConn Students for Liberty would say that's a good thing) If you want my brief opinion on what I would do if I were an NY State Senator, see the end of this post. If you want a more in-depth analysis, read on.

In all this debate, one side of the issue never gets mentioned: why have legally sanctioned marriage at all? Is it really right for the government to dictate who can and can't marry eachother? Here's what I propose (and many libertarians share my opinion)


End government-regulated marriage. Allow any group of two (or more, see below for more commentary on this) consenting adults to enter into a legal partnership (which would have a neutral name and would NOT be called "marriage") by filling out a few papers. This would give them all the rights and responsibilities that marriage currently gives, and frankly, you can give most of those to another person who you're not married to by filling out papers anyway.

Then, allow for private marriage ceremonies. These could be religious (as in at a church or other house of worship) or secular. If the Catholic Church doesn't want to sanction same-sex marriage, don't force them to (as NYS would reportedly attempt to do). Gay couples can go to another church/religious entity, or opt for the secular route (see below).

Of course, interfaith couples, athiest couples, or anyone else who doesn't want to be married by a house of worship can opt for a secular route. This would be similar to getting married by a justice of the peace, except that the person performing the ceremony would not be licensed by the state. If the couple wants a mutual friend to officiate the ceremony, they can do so. The marriage ceremony itself would have no impact in the legal sense (as only the document I discussed above would create the legal partnership), so it wouldn't matter who performed it.

This way, the religious individuals who feel marriage should be between a man and a woman can join a church who feels the same way, get married in said church, and protect the sanctity of their marriage. However, gay couples would still be entitled to the rights and responsibilities of heterosexual couples, and would be able to get a full marriage ceremony, even if that ceremony had no legal impact. And keep in mind the marriage ceremony itself would have no legal consequence for ANY couples, so it doesn't constitute discrimination.

Above, I mentioned the quote "two OR MORE consenting adults". This is because some people believe in polygamy or polyandry. Most notably, many Mormons believe that a man should have multiple wives. In this case, the man in question could obtain a legal partnership (or whatever we're calling it) with all his wives, while taking into account that certain benefits can generally only be applied to one person. For example, complications might arise with regards to who would be given guardianship of children should the husband die. This could easily be resolved however, by the husband stating who would receive these rights when he fills out the necessary paperwork to create the partnership (or when the children are born, depending on circumstances).

This would also allow for more irregular marriages, such as group marriages or line marriages. I know many groups do not condone these unions and may even consider them immoral, but it is not the government's position to declare them universally wrong. Most religious bodies would likely choose not to sanction these marriages, and that of course is their right. But for those who do choose to engage in these partnerships, they may do so with full rights, responsibilities, and ceremonies presently offered by marriage.

People are debating about whether "marriage equality" must involve gay marriage. However, as a recent Libertarian Party release phrased it, "marriage equality [is] only one step towards ending legal discrimination." To quote the release:

"Marriage equality is not enough, .... I've heard some people express concern that allowing gay marriage would send us down a slippery slope. I hope it does. We should settle for nothing less than a society in which the legal code is wiped clean of references to a person's sexual identity or depends on how many sexual partners they have. It is disgraceful that we grant government officials the power to even examine such things, let alone criminalize any peaceful conduct between consenting adults or punish them with unequal marriage, adoption, tax, or immigration laws."

Therefore, we should outlaw any legal definition of marriage and simply allow any consenting adults to enter into a neutrally-named legal partnership.If they wish to have a private marriage ceremony performed for religious, personal, or any other reasons, they may certainly do so. And if people who don't support gay marriage wish to be married by an entity that also doesn't, they may do so and as such feel that their marriage sanctity has not been violated.

Now, for my opinion on how I would vote as an NYS Senator (as promised above): given the circumstances, I wholeheartedly would support the bill. However, I feel it is only an intermediate step towards truly ending discrimination. If you just skipped down here and don't get that reference, go back up and read the whole article.