My son and I had an interesting conversation the other day on the subject of gay marriage, which has been much in the news lately. He is of a generation for whom sexual orientation is an absolute non-issue. I come from a different time and have had to work my way there, which I think I’ve pretty much done. Given my son’s perspective, the controversy about gay marriage makes utterly no sense to him. He cannot fathom why anyone would object.
He is, however, an interesting young man who thinks about things in interesting ways. So he started our conversation with this question: To the extent that marriages are sanctioned by religion, doesn’t the separation of church and state imply that the government shouldn’t recognize ANY of them?
Now, an argument can be made that if the government recognizes ALL religiously-sanctioned marriages, it isn’t favoring one religion over another, in which case the establishment clause of the Constitution wouldn’t apply. And since you can get ordained online by the Church of I’d Like to Own My Own Central American Republic and use that credential to marry people, perhaps that argument is right.
But my son’s observation raises an interesting issue. When people marry in a church, temple, mosque, synagogue, etc., two separate events occur. One is a cultural, but not legal, endorsement of their decision to unite. The other, which occurs whether or not the marriage is sanctioned by religion, is the establishment of a contract between the bride and groom.
There are two big buckets of law, civil and criminal. A couple of Madonna’s marriages perhaps notwithstanding, contracts fall under civil law. So, ALL marriages are, in fact and by definition, civil unions. This is personal M&A.
That got me to wondering – since marriages are really just contracts, can we learn anything by looking at the circumstances under which the government tells two parties who want to enter into a contract that they won’t be allowed do so?
I could only come up with two such circumstances:
One is that the contract would be anti-competitive. As applied to marriage, this seems like it justifies the prohibition against polygamy. That makes total sense to me. After all, the last thing I would ever want would be for some guy who’s a lot more attractive than I am to be allowed to take five women out of circulation.
The other, which comes specifically from the arena of marriage, is that the person you want to marry is your sibling or your first cousin. There is a compelling public interest in this case, which is not the prevention of yuck, but rather the prevention of seriously deformed children.
Which raises an interesting question of its own: What happens to that compelling public interest when you and the sibling or cousin you want to marry are of the same gender?
Being, for a moment, as serious as I can be (which is not all that serious), I know that these sorts of social issues are truly important to many people. I genuinely don’t understand why, since, at least in my mind, “It’s none of your business” seems like a pretty good definition of liberty. And with the ice caps melting, the economy being propped up by toothpicks, and the wonderful people at Rosetta Stone having a hard time keeping up with demand for Mandarin Chinese, I can help but wonder. . .do we perhaps have bigger fish to fry?