Should government get out of the business of defining marriage? That’s not a new question. But as conservatives appear to be losing ground in the same-sex marriage debate, some are showing a new interest in changing the rules.
Wisconsin Republican Gov. Scott Walker brought up the notion on NBC’s “Meet the Press” last month, noting how many young people have asked him “why the government is sanctioning it (marriage) in the first place.”
An alternative, he said, would be “to not have the government sanction marriage, period, and leave that up to the churches and the synagogues and others to define.”
The idea was not “anything I’m advocating for,” Walker pointed out, but he appeared to favor the idea of government pulling itself out of the same-sex marriage debate that has sparked culture wars and two cases on which the U.S. Supreme Court is expected to rule in June.
Former Rep. Ron Paul also spoke of the idea several times during his campaign for the 2012 Republican presidential nomination. After President Barack Obama came out in favor of gay marriage, Paul declared on Fox News last May that “marriage should be something you do in a church” and a “voluntary association” into which “the state should not interfere.”
“I’d just as soon that the state not issue licenses or define marriages,” he said. “Let two people define marriage. It’ll annoy some people, but it also will get rid of this whole debate. We wouldn’t be arguing about the definition of marriage. I’m going to have my definition and somebody else can have theirs.”
Paul also wrote about dumping licenses in “Liberty Defined,” his 2011 collection of his writings. In a chapter titled “Marriage,” he writes that most Americans “do not question the requirement to obtain a license to get married,” but ideally each individual should be able to define marriage as he or she pleases as a matter of free speech and free association under the First Amendment.
Radical as it may sound, Paul actually expresses a very old-fashioned idea. For most of Western history, marriage was a private contract between two families. Some states still recognize “common law” marriages, which are established by couples who voluntarily live together in the state for a certain period of time during which they present themselves to others as married to each other.
Returning to that ancient tradition would mean courts and government would still be called on to judge and enforce the validity of contracts that a couple enters into, regardless of their gender. But ending the government “interference” in defining marriage fits well with libertarian and constitutional principles, in the eyes of many conservatives.
As conservative National Review Online columnist John Fund recently wrote, “The cherished principle of separating church and state should be extended as much as possible into separating marriage and state.”
Among other advantages from a conservative point of view, Fund pointed out, government removing itself would mean a flatter tax code and an end to a lot of “social engineering” based on who’s married and who isn’t. Fewer immigrants also would enter the country based solely on spousal rights.
And, although Republican Party leaders aren’t talking about it much in public, separation of marriage and state also could help separate the Grand Old Party from its same-sex marriage opposition, which has morphed from a political plus into a growing albatross in national polls.
Nevertheless, I wouldn’t be holding my breath waiting for government to get out of the marriage business any more quickly than it got into it. At the federal level alone, there are more than 1,100 regulations that mention the word “spouse” in awarding benefits. Untangling that would cause even more culture war debates, not fewer.
Besides, only nine states and the District of Columbia currently allow gay marriage. Heated debates and protests are likely to continue, no matter which way — or ways — the Supreme Court rules in its current cases.
With that in mind, the right’s new interest in privatizing marriage sounds a lot like a familiar desperation move. After all, when you can’t stop social change, you try to dodge it.
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