By The Federalist Editors
It Might Be Impossible to Get Government Out of Marriage
Mollie Hemingway, senior editor of The Federalist
My personal view on marriage is that it is the union of one man and one woman, joined together permanently, exclusively and monogamously. But as for the marriage wars, I’ve long argued that government should not be involved. People should be free to join together in whatever groupings they want and the government should not favor one such group over another.
To be clear, I do not mean by this that I support the government redefining marriage to include same-sex unions or other groupings. You can read more on my views in “The Rise of the Same Sex Marriage Dissidents.” I’ve never been persuaded that such a redefinition is an appropriate or coherent act for government or leads to greater liberty. We’ve definitely seen the loss of liberty that comes with it.
Marriage existed prior to government. It is public, not private, but it does not intrinsically require legal recognition. Our tax laws shouldn’t play favorites based on marital status. I wish the government were much smaller and less involved in marriage, whether that plays out in forcing florists to provide bouquets for marriage ceremonies they believe to be sinful or firing teachers who don’t wish to violate their beliefs in how they teach about marriage. In fact, I think that the stronger the family, churches, and other institutions are, the less invasive the government. The stronger and more involved the government is in regulating marriage law, the weaker these other institutions are.
Our tax laws shouldn’t play favorites based on marital status.
Still, my position gives me pause in a few different ways. And has for years since I began thinking more deeply on this topic, if I’m being honest. One is simply the recognition that it’s based on unrealistic thinking. We don’t live in a world where people seek less government involvement.
More importantly, though, what does it really mean to get the government out of marriage? What singled marriage out throughout all time and human history as a different type of recognized relationship is that sex was involved. There’s only one bodily system for which each of us only has half of the system. The unit is the mated pair. In sexual congress, in intercourse between a man and a woman, you are literally coordinated to a single bodily end. And not infrequently, that end involves the creation of another human being. What does it mean to get the government out of marriage when you’re thinking of the natural end of coital sex? That is, children.
Abolishing the many laws regulating marriage sounds like a way to decrease state involvement, but it undeniably opens up avenues for greater state involvement in lives. Would each group of people seeking to join together draw up their own contracts? Who would adjudicate the violations of such contracts? This is an already complicated process when everyone’s operating on similar understanding. Family court judges are meddlesome enough, but imagine the layers of appeals that we would see in a “privatized” situation, appeals that would go to the Supreme Court to establish precedents.
What does it mean to get the government out of marriage when you’re thinking of the natural end of coital sex? That is, children.
And what in the heck does it mean for the children that are conceived and born? Do they have to sign contracts, too, to cover what marriage law used to when the government recognized family as the foundational unit of society? I worry it would be more likely to see this approach leading to the complete abolishment of the family rather than greater freedom. The decline of the family requires expanded government to fill the void (whether that’s in the form of welfare, daycare, prisons, etc.).
So, I worry about children and how frequently we fail to consider what is best for them. Until about five minutes ago we believed that children should be raised by their own biological mother and biological father. And, in fact, that’s what the intact family unit has traditionally been awesome at accomplishing. We’ve had more or less a complete societal breakdown of this arrangement with the advent of dramatic changes to marriage law and changes to marriage’s accompanying norms. Now we have many kids raised by single parents or by parents who don’t live together. We’re seeing a growth in the number of children who are created using sperms, eggs, and wombs of people who have been paid for their genetic material or services but who have no intention of being involved in their children’s lives. The situation is bad enough as it is. I worry that “getting the government out of marriage” will only exacerbate such problems as adults behave without thought as to how their decisions affect the lives of children.
The Oppression Gay Marriage Proponents Demand
Joseph Bottum, bestselling essayist and author, most recently of “An Anxious Age“
As the Supreme Court closes in on a constitutional right to same-sex marriage and even the pope increasingly expresses his boredom with the topic of homosexuality—as the issue itself, for that matter, seems to disappear from the public concern of everyone except television-script writers, oh-so-anxious to prove their liberal credentials—I feel vindicated about the long essay on same-sex marriage that caused me some grief, and my friends some heartburn, in summer 2013.
Contemporary American society has no intellectual or social resources with which to construct a coherent case against same-sex marriage, which is why the issue arose.
There, I argued that contemporary American society has no intellectual or social resources with which to construct a coherent case against same-sex marriage, which is why the issue arose, why the arguments against it seemed merely reactionary, and why its victory was so rapidly achieved.
But whether I was right or wrong, same-sex marriage is now here—and mostly, as far as I can see, for good in the culture. So I was persuaded to join the Marriage Opportunity Council, which recently released a statement about the dire condition of marriage in America and the need to support the institution of marriage, including same-sex marriage.
The writers in this symposium here at the Federalist, however, were asked not for their own case but for the other side’s: not the issues that confirm their case, pro or con, but the issues that give them pause. And what gives me pause is how rapidly, determinedly, and exhaustively some advocates of same-sex marriage have moved from being opponents of oppression to being good, old-fashioned oppressors.
One hardly needs a catalogue of the all shunnings and expulsions in the United States and Europe for the sin of opposing same-sex marriage: from Brendan Eich to closed bakeries, fired nursery workers, arrested street preachers, and banished professors. Whether from the intoxication of success or the fear of victory’s fragility, too many gay activists have gone from rejecting silence to demanding silence. “I am very ’umble to the present moment, Master Copperfield,” as Uriah Heep once explained, but now at last “I’ve got a little power!”
There are many honorable exceptions—perhaps, I hope, a majority of those who support this cultural change. But the intellectual life, the success of the arts, and the sanity of culture demand something from us: our tolerance and appreciation of eccentrics, cranks, and odd fellows, perhaps especially when we disagree with them. In too many areas, not just this, we are near a closing of the democratic temperament. We need a call again for broad shoulders and broad minds.
I suffered in my profession for supporting same-sex marriage. Not much, in truth, but a little, and having already been through all that, why would I change my position now? Still if the day comes that no one is allowed to speak or write against same-sex marriage and homosexual behavior—if the day comes when, across the nation, people lose their jobs, lose their businesses, lose their voices—then I pray to God I will have the strength to join the other side.
People Really Do Need Lifelong Companionship
Eric Teetsel, director of the Manhattan Declaration
Gathering a group of people who disagree on a really important question and asking them to admit which of their opponent’s arguments they find most convincing is the beginning of an exercise likely to result in good policy. Or, at least, bad policy with reasonable conciliations for the losing side. It’s just too bad key players in the debate over marriage didn’t do it ten years ago. Instead, this summer, unelected judges will throw out constitutional amendments lawfully passed by the citizens of three-fourths of the states. It will be the climactic act in a years-long legal battle fraught with judicial impropriety.
A committed partner plays a significant role in the life of a same-sex attracted person, one with social and civic value worthy of a level of legal recognition.
Or maybe not. It is possible Justice Kennedy will remember that, while powerful, the Supreme Court does not have the power to change the meaning of words. Whatever happens in June, the debate over marriage in America is not nearly finished. A decision in favor of marriage will beget dozens of state-based efforts to enact same-sex marriage legislatively. A decision against marriage will generate chaos, as states consider whether and how to abide. Efforts to push even further against long-assumed social norms will be emboldened, including the trans-agenda and so-called non-discrimination laws that hinder the ability of religious people to participate in public life.
If given an opportunity to sit across from those calling for a new, different understanding of marriage, I would be willing to concede one major argument, and to work to reconcile it in order to preserve public policy grounded in marriage’s true meaning and purpose. That argument is this: a committed partner plays a significant role in the life of a same-sex attracted person, one with social and civic value worthy of a level of legal recognition.
As a Christian, I believe that homosexual sex is one of many forms of sexual activity God prohibits. Biblical norms are not arbitrary, but are based on God’s design for human flourishing. Sin isn’t just bad, it is harmful. Conversely, a life aligned with biblical principles will be prosperous. From this perspective, a person in a same-sex relationship is committing self-harm. Love for my neighbor compels me to fight against that harm, and to point the way towards life more abundant.
The same logic applies to public policy. When our laws conform to biblical principles of justice and morality, we can expect society to thrive. When they don’t, we can expect the opposite. Although you certainly don’t have to be a Bible-believer to understand marriage, basing public policy on a lie that contradicts God’s design is a bad idea, and destined to fail catastrophically. So, we have to get marriage right.
Yet mine is also a God of liberty, who desires willful followers, not slaves. America must be a place where citizens are free to order their lives according to their conceptions of what is good, and true, and beautiful (within reasonable constraints). Then we can debate whose way is best. We have to balance the truth of marriage with the good of liberty. To do so, we should reaffirm the necessity of a vital culture of marriage, and create a system to recognize significant non-marital relationships.
Unlike a policy of civil unions which satisfy no one, and infeasible calls to extract government from “the marriage business,” we should create a means to legally enshrine non-marital relationships with certain privileges, rights, and responsibilities at a level less than marriage, but that is meaningful. This would be a distinct and different legal track. It would not exist exclusively for same-sex couples, but would be available to any adult couple. Elderly widowed sisters caring for one another in retirement could enter into such an arrangement, as could heterosexual couples who are currently forced to choose between marriage and simple co-habitation. The specifics of such a system would be hotly contested, to be sure, but I envision a system that is relatively easily entered into and dissolved, with implications related to taxes, inheritance, insurance, employment benefits, and more.
Once in place, the law surrounding marriage would also be reconsidered, and elevated. For example, with a reasonable alternative to marriage in place no-fault divorce could be eliminated. Adoption and foster care would be reserved for married couples to provide children in need the absolute best-possible scenario.
Ultimately, such a system will be unacceptable to those who are using the redefinition of marriage as a means to a larger end. The track system will not further erode foundational notions of human sexuality, the family, and the role of religious belief in society. The track system will not please those whose desire is to eliminate the belief that homosexuality is immoral. But, for those whose desire is not radical reformation or an illiberal agenda, but simply an equitable system of laws that provides stability and efficiency for their loved ones, it would suffice. And who knows? It just might rescue marriage from the muck, too.
What If It’s Not Just About Marriage?
Heather Wilhelm, RealClearPolitics columnist and senior contributor to The Federalist
A few weeks ago, I wrote on the issue of gay marriage for RealClearPolitics:
As America wrestles with the issue of gay marriage, it’s disappointing to see both left and right agitating for more government involvement, not less.
If you care about religious liberty, this mindset—the automatic pivot to the government on big issues and small—should strike you as dangerous. America’s knee-jerk “it’s always the government’s job” political culture has led, over decades, to the absurd position we find ourselves in now: Waiting with bated breath for nine unelected, intelligent-yet-flawed judges to decide for the entire nation what the ancient institution of marriage means, “once and for all.” Seriously? What could possibly go wrong?
Here’s a radical idea: How about the government does its best to butt out of marriage, increasing the liberty of both religious groups and gay couples? How about the government stops creating problems and fueling culture wars through forced collectivism and micromanaging everyone’s lives?
Many of the critiques of this stance are practical: Getting the government out of marriage, opponents argue, would result in chaos; the social and bureaucratic entrenchment is strong, wide, and deep. This is true. Then again, there are many excellent policies that, if enacted full scale, would require a significant transition. Universal school choice, for example, would dramatically improve educational options and personal freedom for people from all walks of life, but making it a reality would be far from seamless.
I also agree that government has a role in enforcing contracts. A policy of universal, government-sanctioned civil unions, with their attendant benefits, might go a long way towards protecting both gay couples and religious believers. Want to get married in a religious sense? That’s what churches—churches that we want to keep free in speech, belief, practice, and association—are for.
The growing ‘you must approve’ coalition allows no room for dissent.
So, what gives me the most pause when it comes to my position? My goal is to preserve freedom all around. But there’s a good chance that my solution, while defusing some short-term problems, could end up pleasing no one. Some people, on both the Left and the Right, want a government stamp of approval. More alarmingly, others, largely on the Left, seem to want to force every single person in America to join in on that stamp of approval, no questions asked.
You can see this in the fights that have popped up around the country, particularly when it comes to florists and bakers bullied for refusing to participate in gay weddings. You can see it in the calls to boycott Dolce & Gabbana after they spoke out in support of traditional families. You can see it in the otherwise seemingly normal and pleasant people who suddenly turn icy, furious, and shut down at the suggestion that conservative Christians are not necessarily evil “bigots” because of their beliefs.
The growing “you must approve” coalition allows no room for dissent. It also shows little regard for various fundamental freedoms. This is alarming, and occasionally I worry it might be the way we’re headed. If that’s the case, getting the government out of marriage might help, but it won’t fully address the larger issues at play.
What If Religious Liberty Can’t Survive?
Ben Domenech, publisher of The Federalist
The major misgiving I have about supporting gay marriage is that its path to becoming law in America puts religious liberty at risk. As Richard Epstein recently wrote, “a clean resolution of this issue in favor of SSM should be welcomed. The hard question here is whether the means chosen in the federal courts justify the ends.” My biggest concern is that the means by which gay marriage becomes law will further the goals not of the gay community, most of whom just want the freedom to marry the person they love, but of the secular Left, which has used the marriage fight as a convenient weapon to attack the people and institutions they want to banish and destroy.
Removing the force of government and trusting the people to work it out for themselves is nearly always the best course.
Gay marriage ought to be legal. But if it became law through representative bodies and ballot initiatives, such allowance could have been paired with laws addressing the legitimate concerns of those who believe their religious liberty and freedom to associate will be threatened in a world where gays can marry. Most if not all states would have eventually allowed gay marriage, understanding that there is no significant state interest served by barring such unions. Removing the force of government and trusting the people to work it out for themselves is nearly always the best course.
Instead, the libertarian argument regarding equal protection has prevailed. The issue will be resolved through the courts, and I personally think they are right in their argument, even if the practical result is problematic. State-based federalism would have been a healthier route to the same result, but it has proven legally and constitutionally impossible. Thus, I expect Cato’s brief on this subject, as Ilya Shapiro notes, to be their final brief on the issue.
But of course, that won’t end the culture war, which is only just entering its next stage. There are those who speak today of freedom and equality whom I fully expect will hypocritically abandon all their pleasant-sounding words about tolerance and freedom when it comes time to defend people with deeply held religious beliefs. Too many people who claim to love liberty are perfectly content to let the hammer of government fall on those whose beliefs they do not share. The crackdown on those who publicly practice their beliefs will require those who believe in more than just a right to worship to stand and defend Americans whose views are decidedly irritating for the secular Left.
There are many libertarians at the Cato Institute and elsewhere who value and defend these rights. Rob Tracinski and David Harsanyi, two of our staffers who favor gay marriage, have gone out of their way to consistently defend religious liberty. Part of our editorial role at The Federalist is to illustrate that there is no need to be inconsistent in this regard, and we hope other libertarians will join us in linking arms with social conservatives to defend their freedom.
From the perspective of the secular Left, the fight over gay marriage in our political scene was merely a prelude to what they truly want to achieve: the destruction of all family units and the elimination of publicly practiced religion. No families and no God but only the state. All the while, they have dismissed the concerns of religious Americans as absurd. As Ayn Rand wrote, “The uncontested absurdities of today are the accepted slogans of tomorrow. They come to be accepted by degrees, by dint of constant pressure on one side and constant retreat on the other — until one day when they are suddenly declared to be the country’s official ideology.” Refusal to honor that ideology by religious Americans creates an inevitable clash in the courts and the culture, and libertarians must be prepared to defend the liberty of religious citizens just as they stood with gay citizens.
Here at The Federalist and elsewhere over the past several years, I have hosted and curated an ongoing debate and discussion about gay marriage, gender issues, and why boys and girls are different. I’ve sought to feature many different voices with different views. I have sought to be fair and evenhanded to both sides, publishing intelligent voices on these subjects – gay and straight, believers and nonbelievers, academics and lawyers and pastors and mothers – who I believe speak and write out of concern for the nation and their love for others, not bigotry. Reasoning together is of the utmost importance on a topic that has inspired such division in the nation, our political sphere, and even in our families around the Thanksgiving table. Our own editorial team reflects this – we are evenly divided on the issue of gay marriage – and it is because of our mutual respect for differing views that we believe this debate is important.
In the wake of the coming Supreme Court ruling, that debate will turn to a much larger question: can religious liberty survive in an America with gay marriage? I hope the answer is yes, but hoping won’t make it so.