Why Government Should Get Out of the Marriage Business

The following op-ed by our vice president, DJ Schanz, was published this weekend in the Salt Lake Tribune.

By their own admission, many same-sex marriage proponents view the Supreme Court’s recent ruling more as the beginning—and certainly not the end—of a larger legislative and judicial war. This contention has exhausted hundreds of millions of dollars and man hours. Even worse, it has turned neighbors into enemies.

You don’t see such hostility between Mormons and Catholics regarding the form and method of baptism. The former church believes that baptizing infants is a “mockery before God” whereas the latter considers it “an immemorial tradition of the Church.” Each group disagrees with the other, but not to the point of bitterness and public strife.

Obviously, there is no government definition of baptism; one denomination has not been able to impose its doctrinal position on their peers through the force of law. As such, there is no attempt to wrest control of political power to modify and expand that definition to be more inclusive. Each group operates in a “live and let live” fashion, using persuasion to convince others.

Government involvement in marriage is not a given. Marriage licenses first developed not as a way to protect children or encourage heterosexual unions, but as a way primarily to prohibit interracial couples. Several colonies—and later, every state—outright banned mixed-race marriages. Requiring a permission slip to marry enabled the government to micro-manage a person’s relationships, whether with a person of another race, a drunk, or somebody with a “mental defect.”

The power to license is the power to deny—by intervening in the marriage relationship, which historically was between two families and often their ecclesiastical leadership, the government can legally exclude and punish classes of people it finds desirable. Just in 2009, one interracial couple in Louisiana was denied permission to marry by a judge who refused to grant a license. “I’m not a racist,” he said. “I just don’t believe in mixing the races that way.” Every sane person should reject this attempt to control, through the force of law, who we live with and love.

Government need not be given the power to dictate who can enter into a relationship; the freedom of association is a sacrosanct, fundamental right that predates and thus supersedes the state. We should reject, and not seek to enlarge, the government’s role in marriage—a position I and others have been advocating for several years.

In response to this idea, state senator Jim Dabakis commented that to remove government from marriage would be to “destroy” it. But this is nonsense, just as it would be absurd to claim that repealing the state’s restrictive liquor licensure regime would “destroy” liquor distribution.

Allow me to paint a picture. Whereas currently a couple must first seek the permission of the state to marry, imagine a world where the loving couple’s first consideration was not the county bureaucracy, but their commitment to one another, their ceremony at their church or with family and friends as witnesses. They would think about themselves and their future—and not whether they had filled out the requisite form to be given legal approval.

Anybody could get “married” on their own terms, and according to their own definition. Those desiring legal recognition—for tax purposes, estate planning, visitation rights, or otherwise—could provide evidence of their union to the state, which would simply rubber-stamp the simple application. The state would become secondary and subordinate.

Of course, the real change will come through removing all the incentives and privileges government has long associated with marriage, at which point legal recognition will become less enticing. Until that time, the imperative next step is to eliminate licensure—so the government can no longer prohibit undesirable unions—and require the government to recognize the affirmed relationships of consenting adults. Special privileges should be eliminated; faith and fidelity should be their own reward.

The current climate will continue to breed contention, legislation, and litigation. This approach is unnecessary and unproductive. Anybody interested in a civil society based on tolerance and mutual respect must give serious thought to removing the state from our sacred, intimate, and private relationships.