James Kerian: The State Belongs "In The Marriage Business"

Roughly half of the country is hoping the US Supreme Court will rule later this month that the US Constitution requires that every state government begin issuing marriage licenses to any two people (regardless of gender) who are of sufficient age, not too closely related and not already married to someone else.  Despite all the talking points you may have heard about the “freedom to love” that is the question that is actually before the SCOTUS.

This half of the country is comprised of two groups.  The first are those for whom this ruling could represent complete (if not permanent) victory.  They believe that the state granting marriage licenses only to couples of opposite gender is the last remaining arbitrary limitation.  They believe this limitation stems solely from bigotry (like the anti-miscegenation laws that first cropped up in the 17th century) and that once this limitation is removed our marriage laws will finally be fair and just.  The second group is made up of those who do not want state governments to be issuing any marriage licenses whatsoever.  For them a victory at the Supreme Court this month is only the first step towards true justice (simply not having any legal recognition of marriage whatsoever).

These two groups may want the same ruling but there is really no common ground in the principles that lead to that desire.  Their two views of marriage and its relationship to government are as antithetical to each other as they are to the views of those who would prefer to have all of North Dakota’s current requirements for a marriage license remain in place.  This dichotomy makes arguing against both positions at the same time nearly impossible so today’s column will argue solely and exclusively for the continued issuance of marriage licenses by the state government.  I hope in a future column to discuss when marriage licenses should be issued.[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]The state is not “in the marriage business” because it has a thing for adult romance.  The state recognizes marriages because our laws regarding property ownership and child custody acknowledge the foundational impact of marriage on these subjects.[/mks_pullquote]

Marriage licenses similar to what we have today began to be issued in 13th to 14th century but governments have had laws regarding marriage much longer than that.  To administer laws regarding marriage the government, obviously, must have some criteria or methodology (a license being but one option) for acknowledging who is married.  This is no different than the fact that to administer laws regarding citizenship (such as who can vote) the government must have some criteria or methodology for acknowledging who is a citizen.  But the claim of those who want the government “out of the marriage business” is that there should be no laws regarding marriage just as there are no laws regarding friendship and so there is no legitimate need for either the marriage license or any other means or methodology for the government to keep track of who is or who is not married.

Citizenship is a relationship with one’s countrymen that bears directly on issues that are necessarily within the government’s purview (who can vote, who can enter the country, etc).  Friendship is a relationship that does not bear directly on any issues within the government’s purview.  Unless I am a highly ranked member of ISIS there is no need for the government to take any interest in (or any notice of) my friendships.  Marriage, according to those of us who believe the state should continue to recognize marriages, is a relationship that bears directly on issues that are necessarily with the government’s purview (specifically child custody and property ownership).

A friend of mine from Minot once wrote that what surprised him most about marriage was how foundational it is, that he doesn’t just share his life with his spouse but that his life is with his spouse.  The fundamental claim made by those of us who want the state “in the marriage business” is that because marriage is so foundational it genuinely unites people and that has direct and real implications for both child custody and property ownership.  My house is not half mine and half my wife’s the way a business partnership is split.  The house is mine.  The house is my wife’s.  The house is ours.

Anyone who is familiar with marriage/family law will quickly realize that the state is not “in the marriage business” because it has a thing for adult romance.  The state recognizes marriages because our laws regarding property ownership and child custody acknowledge the foundational impact of marriage on these subjects.  Not everyone shares this view of marriage just as not everyone shares the law’s current view of citizenship.  But these are examples of the subjects I wrote about a few weeks ago on which the government, unfortunately, cannot simply remain neutral.  Either marriage is so foundational that it directly impacts these core government responsibilities or it isn’t.  The law will reflect one metaphysical view or the other.

Those who would have the law reflect the view that marriage is irrelevant to the government (and thus property ownership and child custody) have a long way to go before they can claim anything like majority support for that view.  The SCOTUS may strike down one of North Dakota’s current requirements for a marriage license (that the applicants be of opposite gender) but those who believe that is the first step to getting the state “out of the marriage business” have seriously underestimated their disagreement with their “allies” in this court case.