11/08/2004

Position: Gay Marriage

Sitting down to enumerate my position on an issue of the day is a very good exercise. It forces me to work out the details of what I actually believe, and to confront myself on the facets of the issue to which I have not given enough thought. To this end, I have resolved to make "Position Posts" now and again when I feel it's appropriate. It's a productive endeavor for me, and may serve to provide whatever readers I have with a sense of where I stand.

I believe that same-sex partners should be allowed to marry. I can find no compelling legal or constitutional argument against it. Once you've got two adults giving informed consent, that's the end of the conversation as far as I can see.

Opponents of same-sex marriage often speak of "tradition", and how allowing same-sex couples to marry would somehow weaken the institution as a whole. Looking at our society, it's hard to imagine that marriage could be any weaker than it already is. Phrases like "starter marriage" have worked their way into the cultural consciousness, and it's not uncommon to hear people talking about "divorce parties". The state of the institution of marriage is defined by the character of the people in it. Yes, there will be same-sex couples who trash it; they're late to the party. Heterosexuals have been trashing it for decades. An argument against same-sex marriage that centers on the dire consequences of allowing gays to get hitched fails to compel. Nor is it defensible on a legal or constitutional basis; the constitution does not protect tradition, it protects rights.

I do feel that this is an issue that the individual states should be allowed to decide for themselves. I don't believe that the people of California should be forced to accept the choices of the people of Arkansas. Nevertheless, when an appropriate case finally arrives at the Supreme Court, I'm fairly certain that gay marriage will become the law of the land just as abortion did in Roe v. Wade.

The Defense of Marriage Act was an attempt at compromise on this issue. DOMA gives states the right to "opt out" of the "full faith and credit" clause of the Constitution with regards to gay marriage. This paved the way for individual states to allow its same-sex couples to marry without requiring other states to recognize it. That part of it seems like wisdom. Unfortunately, DOMA took the additional step of defining "marriage" as being between a man and a woman for the purposes of federal law (e.g. taxes). DOMA would have been a fine piece of law without this and would have stood a decent shot at surviving judicial review. As it's written, DOMA will almost certainly be invalidated; perhaps even by the same Court decision affirming same-sex marriage.

I'm going to indulge my inner Libertarian, staking out a position that is both common-sensical and guaranteed never to happen. I think that the government should get out of the business of sanctioning marriage altogether. Marriage is, for the purposes of our society, a civil contract. By signing the papers, you are agreeing to allow yourself to be governed by the huge legal infrastructure surrounding marriage: inheritance, divorce, child support, alimony, spousal privilege, and the list goes on. The ceremony in the church, synagogue, mosque or coven is purely ornamental.

Let's treat marriage as what it is - a civil contract. Make the documents available for a nominal charge, and require that they be signed in front of a notary public. Subject those contracts to all of the same mechanisms that currently surround marriage and dispose of marriage licenses and state sanction altogether. The marriage license has served too long as an instrument by which one group of people denies a basic right to another group of people. It's time to abolish it altogether.