The constitutional amendment which would have banned gay marriage was defeated in the United States Senate today, despite President Bush’s public calls in favour of it. Bush said that the institution of marriage needs taken out of the hands of “activist judges” and put back into the hands of the American people.
Except… there are thousands of gay couples who would like to be married – and, moreover, who consider themselves “American people”. While this may be a shock to some conservatives, an even greater thunderbolt will be that they’re not the only ones who were opposed to the amendment. Although a majority of Americans don’t agree with gay ‘marriage’, an equal majority opposed the constitutional amendment banning it. In short, most Americans would appear to be compatible with a libertarian solution to the problem! How wonderful. So what is that solution?
Marriage is a traditional institution, so people have expectations of what defines it. But it’s worth noting that expectations change, and have done, for example in respect to how many women a man should be permitted to marry simultaneously. Our definition of marriage has changed before, numerous times. Most of the same people today vehemently fighting a change of definition that would permit gay marriage are themselves subscribers to a previous change of definition which rejected polygamy (the Christian West was a minority in that regard, since most societies were polygamous). Change can be a good thing. Nevertheless, there are many people who aren’t ready to change their definition of marriage to include gay or lesbian unions, and oppose such an idea for moral reasons.
If you identify with that, then read on. Because MY not-so-humble opinion is that there is absolutely no need to redefine marriage in order to permit gay ‘marriage’. And I’ll tell you why. There are two separate parts of any marital agreement:
(a) the process of making a moral promise to another individual, possibly including a promise made to God also, and
(b) a legal contract enshrined in law predefining terms of a marital bond.
As far as the government is concerned, marriage is simply a contract (known as a marriage licence) which two individuals consent to sign when they get married. The details of their moral pledge (a) are irrelevant to and separate from that legal contract. The contract (b) refers to a number of provisions of marriage which are predefined by the government in law (for example inheritance rights and financial policies). The first part of the marital agreement is a matter of morality, not law. The second is a lawful contract, not a moral promise. One part concerns the law, the other part does not.
And therefore morality in the matter of marriage is actually not represented legally at present anyway. What each couple decide to vow to each other on their wedding day, while their guests sit in restless anticipation of the free food, is almost entirely a matter of personal preference and individual determination. So moral considerations (a), of which sexual orientation is an example, are not relevant to the terms of the marriage contract (b) as it exists in law. It is, in short, none of the government’s business who creates such a contract and with whom they create it – it the remit of government simply to honour the contracts as they exist. Morality (a) is the domain of the individual, who has the right to decide for themselves what they believe to be right and wrong, while legal contracts (b) are rightly enforced in law, no matter who they involve.
Reasonable, sensible people who consider gay marriage immoral should have no problem with the idea that legal contracts should be honoured by our legal system, and therefore it follows that they should have no problem with the idea that gay people could enter into such contracts. Thus such a person would be endorsing the civil rights which permit gay ‘marriage’ while still regarding gay marriage to be immoral.
For those who continue to disagree, I might ask what makes this kind of private decision different from any other? Matters of personal morality are the domain of the individual living in accordance with his or her own belief system; they are not within the sphere of the law or the state. I profess to believe that a number of things are immoral without wishing to make it illegal to do them. Honking in a drive-thru, for example. I may consider adultery immoral, but I don’t want to lock someone up for cheating on their spouse. I am separating morality from legality, and for good reason. Why should it be any different for the issue of homosexual unions being recognised in law?
The solution: get the government out of the marriage business. ASAP. And here’s a scenario depicting roughly how I would see it happening, were libertarian measures to be voted into place today:
1) The government repeals all laws relating to marriage and how it is legally defined, leaving individuals to create their own marital contracts.
2) Soon thereafter, law firm Lawson & Associates sees an increase in business as engaged couples request help with creating marital contracts and seek its expertise in the legalese.
3) At a company meeting, founder Leonard Lawson advises his associates and staff that they will be offering a package deal to customers which encapsulates the kind of marital contract the majority of their clients have been asking for. It will be called the Lawson Marital Covenant, and will sell for $199 including customisations.
4) Lawson & Associates is readily imitated by other law firms who wish to offer their own versions of the Lawson Marital Covenant. Some specialise in contracts which closely resemble the old government version, for traditionalists or those for whom the change was unwelcome. Others market themselves as most appropriate for Christians, or wealthy couples, or for those who see marriage as a more temporary arrangement. And several firms go into business to focus on the gay and lesbian market.
5) Lawson & Associates comes to be a major player, eventually offering several types of marital contract: the Lawson Silver Covenant for $99, the Lawson Gold Covenant for $199 and the Lawson Platinum Covenant for $249. The latter contracts can be customised to the clients’ satisfaction, while the former is a web-only generic version of the original. Other companies follow suit, and the internet comes to be a source of information, recommendations and marketing. eBay Nuptials, Yahoo Weddings and www.covenantcentral.com conspire to make the process easier.
6) The marriage marketplace becomes rich in choice with regard to the kind of contract required, encompassing those who wish to commit less to their spouse and those who wish to commit more, for a wide variety of reasons. A large percentage of couples choose a standard, generic contract with only minor changes, and a minority choose not to have a contract at all.
7) Gay people cease to be so melodramatic, conservatives learn about moral freedom and monkeys are employed by institutions of higher learning having acquired a bounteous knowledge of the Spanish language.
You will have derived a sense of skepticism from my last remark.
But perhaps today’s rejection of a constitutional amendment seeking to involve the government more in the definition of marriage is a good sign. The US Senate doesn’t like the idea. The American people don’t like the idea. Maybe we should end this silly debate with the only moral, workable solution to the problem: honour the wishes of individuals themselves on the decisions which affect their own lives.
It’s not about whether to allow or disallow gay marriage. It’s about whether it’s actually anybody else’s business in the first place!
John Wright
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