by Micah Tillman

My friends at Enter Stage Right recently published a piece I wrote on the strange idea that marriage should no longer be legal.[1] I thought the proposal was new, judging from the reaction I would
invariably get from friends and family. But after the essay appeared online, I discovered that I am a relative latecomer to the bandwagon.

I’ll blame the mainstream media for the fact that no one I talk to has heard of de-legalizing marriage. The major outlets seem to simply pass the idea by. Take the recent CNN/YouTube Democratic Presidential Debate:

The question of gay marriage was raised and John Edwards was honest about his struggles. Barack Obama then came very close to saying what I — and others, it turns out — have proposed:

“[I]t’s up to the individual denominations to make a decision as to whether they want to recognize marriage or not. But in terms of . . . [the] critical civil rights that are conferred by our government, those should be equal.”[2]

CNN then immediately went to commercial.

If Obama is serious about his position — and he seems to be, judging from his various press releases[3] — the mainstream media might eventually wake up to the idea of separating marriage and state. But for that to happen, Obama will need to make some important clarifications about why the divorce should occur and what the end result would be.

Fortunately for Obama, the clarifications we need have been made in many posts going back at least to David Boaz’s 1997 essay on Slate.com, “Privatize Marriage: A simple solution to the gay-marriage debate.”[4] Boaz made a case for “privatization” which has developed online into two separate lines of argument. We will take them one at a time:

The first is what I will call the “Freedom of Religion” argument. Alan Dershowitz, for example, used it in his 2003 call for government to “quit the marriage business.”[5] Taken from the First Amendment, this line claims that marriage is a sacred institution and cannot be regulated by government.

Being a constitutional approach, this argument may only work in the U.S. But at least we Americans could get our house in order.

A few months before Dershowitz, Michael Kinsley had taken up a second line of thought.[6] I will call it the “Private Issue” argument. For Kinsley — like Boaz and many others — marriage is a private issue before it is a religious one. And as something private, marriage is beyond the purview of government.

This is a philosophical approach to the issue, and therefore more internationally appropriate. In most societies there is a distinction between public and private life, and government is restricted to the former.

These two lines of argument, I said above, were not separate for Boaz in ’97. He thinks you can only make the constitutional argument because of the philosophical distinction between private and public. Freedom of religion is, he claims, a privatization thereof.[4] Many who came after Boaz, however, have taken up the two arguments independently. The religious prefer the first, and the individualists — or libertarians — the second.

But is it only these two groups who have a reason for wanting government to leave marriage alone? Why should those who are neither particularly religious, nor particularly libertarian, want the same?

To answer this question I will name a third and more lighthearted argument that pops up from time to time. We’ll call it the “All Grown Up” argument. It claims that we don’t need the government’s help to tell who our wives or husbands are. We’re big girls and boys now. We can see who’s who.

As I wrote on Enter Stage Right, “we should remember that we don't ask [the government] for permission to call someone our fiancé, girlfriend, lover, etc. We're capable of judging for ourselves who does and does not deserve these titles.”[1] And if we can do these things, surely we can also discern to whom we are married.

But how does this answer the motivation question? It makes us all feel sheepish about waiting for the government to point out our husbands or wives to us. It shows us that anyone who is offended by being babied can make the argument that no type of marriage should be legal. And since everyone is offended by being babied — not just the religious and individualistic — everyone can want marriage de-legalized.

So writers have used at least three different arguments to show us why we should want to make marriage non-legal. They appeal to our religious freedom, our individual privacy, and our personal maturity. Most of us will find at least one of these three convincing.

And these would be the reasons Obama could cite for a separation of marriage and state. But he must also describe the end result: If we deny the government power over heterosexual marriage, we cannot
continue to reserve civil unions for homosexual couples. That is, in eliminating legal marriage we should universalize civil unions.

The advantage of civil unions, ironically, is that no one takes them personally. We all understand that they are a move in a purely legal game. And it is this that makes homosexual couples feel slighted; they only get to play a game while the heterosexual couples are taken seriously.

What I suggest is that, when it comes to legalities, we are all players and should admit it. As long as government is in the marriage business, people will expect it to reflect their personal beliefs and biases. With a de-legalization of marriage, and a universalization of civil unions, however, the lines will be clear.

It is for government to protect our rights, and for us to live our lives. Why pretend anything else?

Notes:
1. http://www.enterstageright.com/archive/articles/
0807/0807edwardsgaymarriage.htm
2. http://www.cnn.com/2007/POLITICS/07/23/debate.transcript/index.html
3. See, e.g., http://www.barackobama.com/2006/06/28/
call_to_renewal_keynote_address.php, http://www.barackobama.com/
2007/06/01/obama_statement_on_pride_month.php, and http://
www.barackobama.com/2007/07/20/500_gather_in_sunapee_tent_to.php
4. http://www.slate.com/id/2440/
5. http://www.rossde.com/editorials/Dershowitz_marriage.html
6. http://www.slate.com/id/2085127/

About the Author:
Micah Tillman is an instructor in philosophy at The Catholic University of America in Washington, DC. He can be reached via e- mail: micahtillman@yahoo.com