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Should the Government Legislate Relationships?


Vegas Chapel Wedding
Photo: Ethan Miller / Getty Images.
Earlier this year, I sat on a gay rights panel at Mississippi College. MC, the oldest college in Mississippi, is a Southern Baptist institution with a campus policy against homosexuality. The college had been visited by the SoulForce Freedom Ride, and the student Democratic club had a really good question: Is it time for the college's policy on homosexuality to be changed?

The freewheeling discussion covered a variety of topics related to same-sex relationships, ranging from demographic effects to biblical prohibitions and everything in between. The argument that I found most effective with this Baptist audience, as one of the two unambiguously pro-gay rights panelists, hinged on the sacramental role of government. Namely: What business does the government have mandating sanctity? If the government can make marriage sacred, then can it give us all a place in the world to come, too? And if there is a legal "sanctity of marriage" that the government would be interfering with by allowing marriage rights for same-sex couples, then doesn't that imply government support for some pretty controversial heterosexual marriages?

That's the only argument I had, in the entire panel, that I think stuck with my audience. Baptists have a strong history of respecting church-state separation--were it not for the Baptists in Rhode Island, we would probably have no establishment clause--and while the Southern Baptist Convention supports socially conservative policy, the anti-theocracy vibe still lives on within it. Any person of faith who believes that the government has legitimate authority over sacraments either has a very high opinion of the government or a very low opinion of sacraments.

On top of the sacramental question, though, there's another reason why the government should perhaps get out of the marriage business. Longtime reader Guy Ricklin asks a really, really good question:
Has ANYBODY addressed the idea that the government should not legislate relationships between ANYBODY..?? Contracts, yes- relationships, no.
Guy's question, while it has broad implications, is particularly relevant to the same-sex marriage debate. To answer it, let's brainstorm for a moment on what the government's "compelling interest" in marriage is, and what it isn't.

First, if we accept the argument given at the top of this post, it isn't sacramental. In Jesus' time, one got married without the aid of the government. During the antebellum era, our government did not acknowledge marriages between slaves. Unless one is a government-worshipper, there is no conceivable sacramental role for the government with respect to marriage because the government is not, and could not function effectively as, a sacramental institution.

Likewise, the government has no direct, legitimate interest in the propagation of children. This is not China; in the United States, couples may freely decide whether they have children and, if so, how many. Whether you want no children, two children, or twelve children, the U.S. government has no say in the matter--assuming the children are not themselves in danger, of course.

And even if we assume for the sake of argument that the government does have a legitimate interest in promoting parenting, there is a flooded foster care system full of kids who need parents and don't have them. The government should be doing more to encourage adoption--which would also reduce the number of abortions, but that's a whole other can of worms.

So we've addressed two phony reasons for the government to get involved in marriage: Sanctity and biological reproduction. Are there any good reasons for the government to create a legislative category for relationships?

Well, it does reduce paperwork--and given how common marriage is, that's a worthwhile consideration. Imagine the attorneys' fees one would have to pay in order to secure basic marriage benefits independent of legal marriage. It would be a nightmare. And even with the assistance of attorneys, couples opting for a purely contract-based route would not be eligible for the social security and tax benefits that go along with marriage under the current system.

There's also the matter of divorce. Divorce law is tricky, especially with respect to child custody, but it would be even trickier if the government did not universally recognize common grounds for divorce, such as adultery and cruelty.

Are there ways to streamline the relationship contract process and divorce disputes without an institution of marriage? Yes, but the question then becomes how much like marriage we want the new system to be.

If we were to keep marriage but call it something else, such as, say, civil unions, then the government's pretense to a sacramental role would be gone but it would still be in the business of legislating relationships.

But the further we move away from that standard, the more complicated things become. Let's say that the government permitted domestic partnerships, with no relationship of any kind implied. Single friends and family members would routinely register for domestic partnerships with each other, reaping all of the financial and legal benefits of marriage. Until one of the parties was ready to get married, that is, at which point s/he would face a dilemma: Give up the old non-romantic domestic partnership and all of its benefits, for both parties, or give up the option of a domestic partnership with the person they've fallen in love with.

The government could resolve that dilemma by allowing individuals to have domestic partnerships with multiple people simultaneously--which would also accommodate polygamous households--but the government would have to completely eliminate marriage-based social security and tax benefits in order for that to happen. Whether this is a good idea or not, it's unlikely that it would receive much support in a country where 57% of adults receive those benefits and have grown accustomed to them. The government shouldn't legislate relationships between consenting adults--but because it does, it will probably continue to do so.
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