Why Does Government Define Marriage Anyway?

by Jeffry R. Fisher

Thinking Outside the Box... Way Outside

I've recently read about the so called "gay marriage" ruling in Massachusetts. As usual, my response is neither pro nor con. I don't want the law to sanctify gay marriages, and I don't want the law to prohibit them. In fact, I don't want the law to tell us anything about what marriage is.

I expect I'll earn a lot of flack for this one... from both sides of the aisle (so to speak). However, once the fanatics on all sides calm down and look at the opportunities in what I'm suggesting, they might realize that there's something for everyone in letting freedom reign.

To get there, we need to start thinking outside "the box". To see the "box" and how to think our way out of it, we need to start by asking a few questions:

Do We Need Uniformity?

Remember what government is: forced consensus. That's unanimity and uniformity at the point of a gun. Do we need uniformity here? Be careful about saying 'yes' too quickly... would you still favor uniformity even when the majority rules against you? Why should marriage mean the same thing for everybody in a whole state or a whole nation?

For instance, why should everyone be forced to accept no-fault divorce terms when some of us believe in a lifetime commitment with more restrictive terms? Why should everyone in a state be forced to accept communist-property rules when some competent adults are willing to agree to other property arrangements? Mull on this analogy: If renters and home owners can live side by side, then perhaps families with different property sharing agreements can also.

Therefore, we don't need uniformity. Some people assume that we do because it that's the way it has always been done... the epitome of "inside the box" thinking. Such people also rashly assume that their own favorite definition will prevail. They could be right... today. However, "inside the box" people rarely consider that tomorrow could bring something completely different.

Is it All About Sex?

What distinguishes marriage from other contracts anyway? Why can't we allow people the freedom to negotiate their own terms? Is it because of the sex? Some people are repressed, and others are obsessed. What is it about sex that makes it so difficult to talk and act rationally about it? Answer: Sex and its associated territoriality are driven by urges springing from the deepest, most primitive, least logical part of our brains, which when activated even releases chemicals to suppress the logical part. If your territorial instincts have been triggered by what I've said so far, then you are angry and having difficulty contemplating my reasoning. Please take a deep breath and rest a moment so your neocortex can reassert itself.

Think carefully now: Do the sexually "liberated" have a right to force sex (messages, images and public displays) upon those they see as repressed? Do the sexually "self disciplined" have a right to regulate private sex among those they judge to be obsessed? Be careful how you answer that last one, because if you claim such authority over others, then someone else in our democratic republic could someday cobble together a majority coalition to take the control mechanisms you build and use them ways you won't like.

The scope of a marriage is one family. The terms of my neighbors' arrangements are not binding on me. Therefore, we don't need statewide or nationwide marriage uniformity. Perhaps if we could set aside both our hang-ups and obsession over sex (for a brief, sober moment anyway), then we could envision a less intrusive yet practical system of law that doesn't distinguish marriage from other kinds of contracts and partnerships anymore.

What About Equality Under the Law?

Besides wondering about marriage itself, what about the unequal status of married people vis a vis single people? As a single adult, I am not personally concerned with the definition of marriage, but I am concerned about references in other laws, especially if they elevate "married" people to a privileged legal status having more privileges and immunities than I.

For instance, a married couple with one income this year can file income tax jointly to qualify for a lower progressive bracket. Can two single people with one income between them form a business partnership for the same effect? Conversely, a married couple with two incomes, regardless how they file, may end up paying more tax than two single people with the same two incomes. Is either bias rational?

Or, what about compulsion to testify against someone? A legal spouse can't be compelled, but in most states, almost any other housemate can. If six holy men take vows of poverty and chastity to form a monastery where they share all duties and what little property they keep, then would they have the same legal protection under the law as a husband and wife sharing similar duties and property? Is this rational?

Isn't America supposed to be unstratified? Doesn't the 14th amendment bar states from creating status laws treating us unequally? Why do we define some people as "married", treating them one way under the law, while we define others as "single" and treat them differently? Why are there unequal taxes, unequal privileges, and unequal legal obligations and immunities beyond what we negotiate for ourselves and exchange with each other?

Junk It All

How about just eliminating all legal references to marriage? Instead of trying to make it "fair" by cluttering up marriage law further or defining marriage as something guaranteed to offend everybody in some way, we should junk it all (the law that is). As long as marriage and its consequences are defined by law, all aspects will be politicized, and minorities will probably be oppressed.

Don't be too quick to dismiss the rights of minorities; you might someday discover that that's what one or more of your favorite identity groups have become. We avoid oppression by agreeing not to oppress.

Therefore, I don't think that statutes should even define marriage, which would mean that there would be neither special privileges nor duties, neither immunities nor taxes attached to marital status. As a legal concept in an enlightened society, marital status should cease to exist as completely as have noble and peasant status classes with their disparate privileges and duties.

That means that we should either erase or generalize all of the laws currently conferring privileges or obligations upon married couples. Hunt down every tax, every labor law etc. and decide whether each rule should be abolished or made generally applicable. Once we've done that, then we will simply be people, theoretically equal under the law.

Contracts, Partnerships, and Incorporation

States have generic laws for contracts and partnerships. If some people want to be "married", whether according to some tradition or according to some design of their own, they should be able to use those laws to write out their own mutual obligations (vows), property sharing, inheritance, and divorce terms. It would be like a business partnership except that it might involve sex and raising children, and there might be hundreds of witnesses to a highly stylized signing ceremony.

A family's legal identity could even be expressed as a limited liability partnership or a corporation (see Heinlein's "Friday"). Besides the obvious liability protection, young couples would have a legal vehicle in which their parents could invest, both to help the couple and to formalize the couple's obligation to their parents' retirement.

Let's make sure that states' generic contract, partnership, incorporation, survivorship etc. laws form an adequate foundation on which free citizens may build binding relationships (including property and child custody partnerships that look just like marriage) to suit their individual tastes and needs .

One from Column 'A', One from Column 'B'...

Various community organizations and marriage counselors could offer menus of boilerplate marriage clauses. Lawyers could offer customization services to suit individual tastes. I can envision a future when couples can go online, fill in some blanks, click on some check boxes and buttons, and then download a complete marriage contract/articles of incorporation ready to be printed, signed and witnessed.

Building such an online repository of optional marriage clauses could be an open source project for lawyers. We could initialize it with common church vows and various clauses from several states' marriage laws. Various organizations, from churches to marriage counselors could act as packagers offering cohesive collections of terms. So, who can start that project?

Separation of Church and State

Political Reasons for Keeping the State Out of Religion

Church and religion have already appeared several times above. This is because most define some aspects of marriage, childbearing and child rearing customs, and those customs are usually very important to them. Some people think that because their customs are important that they should be enshrined in statute. I say the opposite: If your customs are important to you, then it is critical that you not involve an external, democratic process. If you make that error, then tomorrow's vote could put someone else's doctrine into your shrine, and then you would be stuck with it.

In other times and places, people have struggled mightily to enshrine various religious doctrines in various state codes. Much blood has been spilled in various attempts to impose consensus. However, today in America, we see churches espousing many of those very competing doctrines coexisting peacefully. In fact, in the most extreme irony, modern zoning laws in many municipalities line them up cheek by jowl on adjacent properties as if they were equivalent. In a civil sense, they are, because none shall gain the establishment of statute. Moreover, knowing this, none feel compelled to get there first over the bodies of their "enemies".

America was once so overwhelmingly de facto Protestant Christian that formal statutes were hardly needed. Laws were written as immigration changed the mix. However, as popular opinion shifts further, Christians can no longer afford to codify doctrine. To do so will be to hand doctrine to a potentially unsympathetic future majority that will amend statute in ways that Christians will find distasteful. It would be better to have no statutory code than a distasteful one. It would be wise to step away from codifying doctrine while one still has significant influence rather than to wake up one day in an intollerable state that one is powerless to affect.

In particular, it is time for marriage doctrine to join other unestablished doctrines. A secular (or ecumenical) government shouldn't impose any one creed upon us, which becomes abundantly clear to purveyors of creeds just about the time they realize that theirs has been supplanted by somebody else's, and that "live and let live" compromises are no longer on the table.

The way things ought to be...

If two people want to write a contract or form a partnership (or even a corporation) written up to implement their definition of marriage and family, then they should be free to do so. Governments should see the contract, partnership or corporation as a literal construct without regard for any church or other informal community treating it as a sacrament or otherwise blessed union. The rest of us may care, but the government, as a tiny mechanism bolted to the side of society, should be indifferent to the religious significance.

Moreover, when liberated, religious couples may then choose more traditional terms than currently defined by statute. They could choose traditional clauses phrased according to articles of their faith, liberally sprinkling overt references to God. [...Orconservatively sprinkling... ...Or opting for total immersion ;) ] We'll never again get such phraseology codified by a secular government.

In fact, we're in real danger of having government's codification turned against us. Therefore, we need to chop back the scope of government while we still can if we want to preserve the freedom to define marriage the way we want it for ourselves. If we try to maintain control against a tilting culture, then we will lose even that privilege (he who defends everything defends nothing).

By giving up the quest to enshrine one's own custom in statute, one can then forestall one's competitors from enacting a contrary code. One can seek the third option: no statutory code at all. Moreover, by securing the state's silence on an issue, one removes a source of aggravation driving one's competitors to activism.

When we choose the third option, the law neither establishes a religious definition, nor does it establish a sacrilegious definition. Citizens are then free to make their own beds and then sleep in them (so to speak). Each individual can then reap the rewards ...Or bear the consequences of his ...Or her own choices, both in this world and in any others that may exist.

In the eyes of the law (and the tax man), marriage will cease to exist. Both the status and the identity will become a private part of people's lives. The act of conferring blessings will be returned to the churches that are separate from the state.

Speaking of Churches...

Theological Reasons for Religions to not Involve the State

As a born again Christian myself, I do feel a need to reconcile my libertarian political philosophy with my theological creed. I accomplish that by recognizing that there is a difference between what is legal and what is righteous. A secular government established to protect citizens' rights to life, liberty and property is a government of limited scope. Limited scope means the law remaining silent on many issues, even important ones. Not every issue is a political issue if government is properly circumscribed.

Government should be viewed as a tiny institution bolted onto the side of a much larger society. Keep that image firmly in mind. Government does not define the whole of society. Therefore, lack of government code on some issue should not imply lack of morality, social custom ...Or divine opinion.

That means that many acts, even unrighteous ones, may remain legal because government is simply not involved, which is far different from explicit approval ...Or encouragement. Conversely, a human government, being fallible, may even outlaw some acts that are righteous. Therefore, Christians should develop the habit of viewing government and statutory law as a part of that corrupt "World" that Christians should be "in" but not "of".

Further, if we Christians are concerned that America is becoming hedonistic like ancient Rome, then we can contemplate Paul's letter to those very Romans:

Romans 1:26-27 (paraphrased):

God gave them over to their lusts. Their women exchanged the natural function for that which is unnatural. Likewise, the men disdained heterosexuality and lusted toward one another, men with men committing indecent acts and their bodies receiving the natural penalty of their error.

If God has a plan that leaves wicked people to suffer the natural consequences for unnatural acts, then who am I to butt in? Remember again what government is: unanimity at the point of a weapon. Who would dare draw a weapon (government) to upstage God's plan? The last time a zealot drew a weapon to interfere with God's plan, Jesus rebuked him saying, "Get behind me Satan". Therefore, I am hesitant to cross the line from preaching wisdom to enforcing doctrine.

Call me crazy, but it seams to me that God is not so much concerned with external acts as He is about internal character development. Bible passages too numerous to list here tell me that God's plan of redemption often involves people "hitting bottom" before they become open to inner change. We who can't see past the surface are prone to treat external symptoms at the expense of prolonging underlying "disease".

Therefore, I recommend that we Christians content ourselves with delivering the message we were asked to deliver, and that we not leap to exert force we were told to leave to God. If we send our intercessory "prayers" to a government of fallible people, by fallible people, and for fallible people, then we are placing our faith in the wrong power.

Live by the Sword, Die by the Sword

A word of warning to those tenaciously hanging onto the old paradigm of government license: If you are wise, then you shall advocate complete liberation now so you can salvage freedom for yourselves before the government's definition turns sour and entrenches behind a stable new majority faction that could oppress all of us for the indefinite future.

As long as a majority foolishly assumes that government should define "marriage" and enforce the definition on everyone, then many factions will fight over what that definition should be. If only they would realize that if we would remove the concept from the scope of government control, then all of us would be free to define it for ourselves without interference from others.

Those who ask government to exercise control risk having the government make hash of the whole business. Whether you're a right-winger or a left-winger, after granting government the authority to define your life for you, you may be stuck with a compromise that is "neither fish nor fowl", a politicized and adulterated one-size-fits-all mix that actually fits none. Worse, you may campaign for your ideal only to have it inverted a few years later. Take the opportunity now to remove government from this sphere before you are stuck with something that is worse than nothing.


How many ways can I say it? If you want something done "right", then you must do it yourself instead of asking the government to do it for you. In other words: The only sure way to prevent the government from enacting the wrong thing on some topic is to bar it from enacting anything. The winning compromise is the one that gives nobody the control they seek but leaves everyone free from the control they fear.

Copyright 2003-2008 by Jeffry R. Fisher: Permission is granted to reproduce this article in whole, but only in combination with attribution, the original title, the original URL, and this copyright notice.
Jeffry R. Fisher is the founder and president of Propagate Ltd, which is liberating digital content as LiberateIP.com.