Ed was wondering "I

June 21, 2003

Ed was wondering "I think it is important that the government not set it's own puritanical values as the law. Why exactly is it the role of the government to say that a marriage can only be between a man and a woman?"

Is it appropriate for the government to prevent incestuous marriages? Forced marriages? Child marriages?

If so, then you have set the precedent for government (i.e. the force-using institution that represents the will of the people, however imperfectly) to restrict what one person can do to another using the legal institutions originally designed to control the intergenerational transfer of property.

Many of these laws were set up to protect people. Consider the case of a girl who is the heir to property. In the absense of these laws, and during the era of coverture in which a women lost all independent legal identity once married, it would be trivial for someone to kidnap the girl, run her in front of a bribed priest, and then take her property and legally rape her. That would be bad, so government got into the business of regulating marriage.

The early national marriage laws I have read, (I read the laws of Virginia and Pennsylvania for a research project) all try to balance three imperatives: they want to protect the property of minors, they want to prevent incestuous or forced marriages, and they want to make the institution widely available in a land without enough celebrants.

The whole business about one man and one woman is yet another case of someone taking one particular set of customs and asserting that they are natural law.

For example: Polygamy is a bad deal for most men, but many societies use it. (The rich get wives, the poor go single) You can argue against polygamy for many reasons, but not from the notion that no society uses it and all societies that are not mongamous couples always fall apart.

As a public policy question, we have a large portion of the polity who are in heterosexual mogamous marriages and like it. We have an extensive body of law and regulation that knows how to deal with questions of property, identity, inheritance, and mutual care for these people.

We have a meaningful portion of the polity who are in heterosexual monogamous relationships - boyfriend and girlfriend who are together for years, own property together, and even have children. They are domestic partners, and they are a tricky bit in the law. Some people argue that their honeys should get medical benefits, hospital visitation privileges, and the like. Others say "NO" - if you want the benefits of marriage then go get married.

We have a small portion of the overall polity but a meaningful portion of the non-heterosexual population who are in long-term monogamous relationships. Some of these people want the benefits that come with committment. They have been having some success at getting recognition for domestic partners since they have not had a chance to marry.

The stiicking point in much of the reasoned opposition to benefits for domestic partners is how to distinguish a same-sex partnership that is marriage in all but license from an intermediate term heterosexual partnership where they want the benefits of marriage without the label or committment.

Opening the institution of marriage to any two people who want to make that commitment is the best way to resolve it. And, contrary to Santorum and his buddies, there are ways to ground this outside of privacy laws. We can argue that we want to support two-person couples and continue to deny the legitimacy of polygamous marriages, incestuous marriages, or child marriages.

Posted by Red Ted at June 21, 2003 12:18 PM | TrackBack