Debate over marriage should center first on role of government

Kelly Sloan

Much has been made of late over the issue of homosexual marriage, its embers stoked by the Colorado Legislature’s affirmation of civil unions and more recently by the U.S. Supreme Court’s tentative wading into the challenge to the Defense of Marriage Act.

Proponents of marriage redefinition have taxonomized the issue as a civil right — a bit of terminological license, to be sure, but it seems to have had the desired effect since public opinion appears to be gravitating rapidly in favor such a social readjustment.

Of course, part of the fallout from detonating the civil rights warhead over the issue is that dissent is declared anathema, as censured as

pro-segregationist bluster, advocacy of repealing a woman’s right to vote or an anti-Semitic rant not delivered in the context of the Israeli-Palestinian conflict. Or as Mark Steyn puts it, like much of the liberal agenda it’s not so much about winning as “ruling any debate out of bounds.”

Nevertheless, the debate ought to be had and should center on three questions.

The first is to ask: What, precisely, is the government’s justifiable role and interests concerning marriage? The fashionable temptation among libertarians is to absolve government altogether of the responsibility and to make marriage, of whatever strain, a purely non-governmental affair. There is a certain laissez faire appeal to that position. But before heading down that road, it should be determined whether or not the state bears an interest in the institution.

First, let’s recognize that whether or not the two parties appearing to receive a marriage license are in love is no concern of the state, nor ought it be. Do any couples, gay or straight, really require the state to affirm their interpersonal relationships?

So what is the interest of the government? Well, the criteria established over the centuries to meet the requirements of a marriage license suggest strongly it’s all about the continuation of the civilization — two people of complementary sexes, not closely related, and just the two. That’s it. Each criterion is directed towards the optimum environment for producing and raising the next generation of our society.  

But wait, exceptions surface. Can’t two men or two women adequately raise a child? Certainly, under certain circumstances, as can a single mom or dad, grandparents or many other combinations. But law is necessarily about generalities, not specifics. Can some 14-year-olds drive better than some 21-year-olds? Yes, but the law can’t be tailored towards the individual, so an age of 16 is established. Likewise, a single mother might do a heroic job at raising her children. But the accumulated wealth of human experience instructs this is not the ideal situation. A child responds best to the complementary influence of both a mother and a father who should not be so closely related as to produce genetic abnormalities, and for whom a breakup should not be too easy. Hence, the laws defining marriage.

What about elderly or infertile couples? Should they be prohibited from obtaining a marriage license? Not unless we wish to include fertility testing as one of the base requirements. Keeping with the general nature of law in a free society, such couples fall within the established definition, again provided they aren’t closely related.

Second, some consideration must be brought to the concept of marriage in any case as a “right.” Every right has a corresponding duty attached to it. If one has the right to be married, then someone else must bear the duty of marrying him or her. Does an ugly person with a disagreeable personality have the “right” to be married? If so, should that person not be able to sue in court if denied their right due to rejection by the object of their nuptial desires?

Finally, the more immediate political concern involves the question of whether or not such issues should be left to the temporal moods of nine individuals or to the lowest feasible political level. DOMA, it should be remembered, was instituted simply to protect one state from the dictates of another.

The entire discussion should take place with the knowledge it can do so without desiring any interference in the freedom of homosexuals. The desire to resist egalitarian efforts to allow government the ability to redefine a fundamental societal institution is not —and should not be — exclusive of the desire to protect the true fundamental rights of gay persons, nor should the debate be placed off limits.