Separation of marriage and state

July 1, 2013

By Steven Greenhut

SACRAMENTO — As a kid, I remember watching a rerun of the 1952 “I Love Lucy Show” episode in which Lucy finds her marriage license while cleaning out a closet. She discovers, to her horror, a typo that refers to husband Ricky’s last name as Bacardi, rather than Ricardo, which causes her to question the legality of her marriage.

The ensuing hijinks are the makings of sitcom legend. I’ve thought about that episode in the years in which the contentious battle over gay marriage has unfolded, as it touches on a key part of the public-policy question embodied in the Supreme Court’s two big decisions last week. How important is the approval of the state — epitomized by the marriage license — in sanctioning a marriage?

In 2013, rather than the 1950s, a technical error on a marriage certificate wouldn’t cause anyone consternation. But let’s say, for some reason or another, the government invalidated my marriage. Would it matter?

Not really. Marriage is primarily a pact between two people and, in the view of many, a sacrament of the church. The state merely recognizes this contract. If, say, a totalitarian government (think the Khmer Rouge or others like them that have meddled in such things) dissolved my marriage, my wife and I would still be married. The state could make our lives miserable, but it couldn’t end our marriage.

Yet that point seems lost these days. The public battles involve two sides who see the government as the means to legitimize their viewpoints. One side says gay marriage is wrong, and the other says that it is the same as any other marriage. The two sides will never see eye-to-eye.

Government ‘benefits’

The governmental “benefits” at the heart of many of the gay-marriage battles are mostly rhetorical window dressing. The state shouldn’t be handing out many privileges or payments, and to whatever degree issues involving hospital visitation and inheritances are an issue, their terms and conditions can easily be worked out without a cultural war over the meaning of “marriage.”

Unfortunately, the court’s meddling has ensured that such a battle will keep going.

I’m not unsympathetic to the high court’s 5-4 decision to overturn part of the 1996 Defense of Marriage Act, specifically designed to deny federal government benefits to same-sex couples. If the government gives out stuff, it’s reasonable to insist that it give it out on the most fair-minded basis.

The court majority’s rhetoric reflects its desire to take a noble stand in this cultural debate. The court’s dissenters were right that the majority opinion was overheated. But at least the decision made some legal sense.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote for the majority.

By contrast, the court’s decision (actually, a nondecision) on California’s Proposition 8 seemed lifted out of “Alice in Wonderland.” In 2008, voters approved this constitutional ban on gay marriage. Jerry Brown, then as attorney general and now as governor, opposed it, so he refused to defend it against court challenges.

Standing

The Supremes refused to rule on the merits of the statute because its defenders didn’t have “standing.” Only the state government apparently had such standing — but that government refused to do its duty.

As National Review’s Hadley Arkes put it, “If the state has a Democratic governor … he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution.”

The meaning is even broader and more disturbing than that. Top officials of all parties now have de facto veto power over all voter initiatives. They simply need not defend in court any initiative they don’t like, and there is no one else the high court will allow to defend it. That’s an anti-democratic precedent.

There’s no doubt the courts, legislatures and public opinion are moving in favor of gay marriage. Time magazine was right to declare this “one of the fastest civil rights shifts in the nation’s history.” The culture has shifted. That part doesn’t bother me. I have no problem with gay people getting married. But it disturbs me when the battles are fought in the political system rather than in the cultural arena. Both sides are responsible for the over-politicization of this personal and cultural matter.

Separation

The best solution always has been the separation of marriage and state. If my priest decides to marry gay people, then my fellow parishioners would have every right to be upset about that, based on their cultural traditions and understanding of Scripture. If your pastor wants to marry gay people, then it’s none of my business. The terms of marriage should be decided by religious and other private organizations, and the state shouldn’t intervene short of having a compelling reason (i.e., marriage by force or with children).

Liberals were more open to this “separation” idea back when conservative profamily types were ascendant. Now, some conservatives understand its merits as a more liberal view is ascendant. Conservatives should have listened when they had some bargaining power, but everyone wants to impose their values on others by using government.

Government neutrality — or the closest we can get to it — is the best way to ensure fairness and social peace on this and most other social issues.

Marriage is too important an institution to be dependent on the whims of the state. Do we really care if the state validates our marriage licenses?

Steven Greenhut is vice president of journalism for the Franklin Center for Government and Public Integrity. Write to him at [email protected].