Monday, December 1, 2008

So, What to Do about Gay Marriage?

In the course of the fall, same-sex marriage (often referred to as "gay marriage") was voted down in California while it became legal in Connecticut and remains legal in Massachusetts. Other states allow a "civil union" or other rights to same-sex couples. (A US map of the current status of such rights can be found at ).

Everyone is familiar with this issue and there is no shortage of strong opinions out there. Before I present my suggestion, I would like to present a brief history of what marriage has been in society. (Note that the state is a relative newcomer.)

A Brief History of Marriage

Forms of committed relationships between a man and woman date back millennia in many cultures. In many of the earlier forms a woman was considered given to a man. In European history, this was often seen as more a business deal, arranged by the families, where the woman may have been given as part of a transaction involving material goods.

Cultural traditions for marriage vary around the world and date back centuries, though the particulars typically evolved over the years. Often religious beliefs or superstitions were entwined in these traditions.

Formal state and/or religious recognition are relatively recent additions. In Europe, the first example of requiring a religious ceremony of marriage was in the Catholic Church, after the 1545 Council of Trent. However, religions ceremonies did occur for centuries before this date, but they were optional. Civil marriages emerged in Europe in the 1700s and 1800s.

The emergence of state recognition of marriage, particularly in Europe, roughly parallels the transition from state religions to tolerance for multiple religious traditions. Before that, the bureaucracy of state and church were so intertwined that the need for separate state involvement was not needed.


In short the controversy over same-sex marriage relates to the state’s involvement in marriage: determining who can marry and under what circumstances. For advocates, it is clear that marriage is yet another right that should not be denied to any group. To the opponents, it is often contrary to deeply held religions beliefs. To some, it just seems strange or they may just feel “it’s not right.”

It is very clear that these positions are irreconcilable.

What to Do?

My proposal is simple: get the states out of the marriage business. A good pragmatic Libertarian has to always ask: “Does it make sense for the state to be involved in this?” I say: “No!”

The states should deal with legal contracts, which is one of the necessities of “being married” -- for example, ownership of common property, joint custody of dependents, rights related to health care, etc. So, I say any couple should be able to draw up a state-recognized legal contract regarding these matters.

And let the marriage ceremony return to the cultural traditions of the couple, be they religious or non-religious. Those traditions that recognize same-sex marriage can perform them; those opposed don’t have to have them.

Freedom and choice for all with no government intervention. That’s my solution.

1 comment:

  1. I love this idea, and I am a proponent, but there is an issue that comes to mind. Marriage has long been defined by the courts as a fundamental right, but a contract is still in danger of state interference, despite the protection expressly provided for by the Contract Clause in Article I Section 10 of the US Constitution. But I do agree with you, and I think it could be a step in the right direction.