Why the Government Should Not Provide Homosexual Couples with a Marriage License

Arguments have been made aplenty for and against the government allowing homosexual couples to marry. Some, up to and including President George W. Bush, have gone so far as calling for a constitutional amendment defining marriage as being between one man and one woman. In my opinion, such an amendment would come perilously close to colliding with the constitutional separation of church and state. While I agree the government should not give marriage licenses to homosexual couples, I take it one step further...

The government has no business performing marriages for homosexuals... or anyone else

Marriage is not only a legal and societal institution but also a religious one. For this reason, if for no other, the government should stay away from it to avoid state interference in religious matters. This is true regardless if the couple in question is heterosexual or homosexual.

Civil unions have been suggested by some as a solution for homosexuals seeking to obtain societal and legal acknowledgment of their coupledom. Gay activists have responded that this would lead to the same problems as the "separate but equal" doctrine that prevailed decades ago regarding African Americans. Namely, that in practice it will end up "separate and unequal."

These activists are pushing for the law to be changed and for marriages to be allowed for homosexual couples, just as for heterosexual couples. I disagree with that proposal. Instead, I propose to kick the government out of the marriage business altogether.

What the government should do for couples instead

There are a great many laws on the books, as well as policies of commercial and other entities dealing with the rights of married couples. These include the following (non-exhaustive) list. Preferred treatment of income taxes (e.g. filing "married filing jointly" returns); Preferred treatment of bequests (e.g. leaving the family home to the spouse with no tax implications); Protection of the family home from seizure when one of the couple defaults on a personal loan (through "tenants in common" ownership); Visiting your spouse at hospitals etc.; Employment-related benefits (e.g. using sick leave to care for a spouse who has fallen ill); Inclusion of spouse in rental car contracts at no additional cost.

These rights and privileges should all be maintained for couples in what is currently called a marriage. However, these are all secular rights and as such should not require marriage. I suggest the government provide civil unions for any and all couples who desire them, and marriage to none. Towards that end a new law should be enacted, retroactively reinterpreting all references to marriage as applying to civil unions.

To address existing marriages, said law would have a clause clarifying that any already existing marriages will automatically be recognized by the government as civil unions. The government would then no longer recognize marriages, existing or new, in any legal sense.

What of marriage - should the institution be abolished?

By no means am I suggesting that we do away with marriage as an institution. Instead, we should leave marriage to religious authorities. If a couple, heterosexual or homosexual, has obtained a civil union from the government they can choose to also get married. However, this would be through their church, synagogue, mosque, temple, or whatever their religious community happens to be. Marriage would cease to be a matter of legal status, and as such would be out of bounds for the government.

But wouldn't this hurt the institution of marriage?

This very question insinuates that the current system successfully supports the institution of marriage. The CDC's Fast Stats show that in the US, the average rate of divorces is just under half the average rate of marriages. As reported by DivorceMag.com, this results in just over half of marriages reaching their 15^th anniversary, 1 in 3 their 25^th and 1 in 5 their 35^th. Only 1 in 20 marriages reach their 50^th anniversary, though in many cases this is likely the result of the death of one or both spouses.

While the precise numbers vary by age group, faith group and region, a ReligiousTolerance.org report shows that across all these factors, between 1 in 3 couples and 1 in 5 couples have been divorced. A great deal of controversy exists over many of the specifics, but it is widely accepted that divorce rates in the US are high. The above statistics are hardly evidence of resounding success for the current system.

It is likely that under the new system, non-religious couples would decline to get married. However, such couples are probably already cohabiting without marriage, or else being "married" by a justice of the peace and not by a religious authority. At least under the new law anyone who is married would be truly married according to their religion. Such a change can only strengthen the institution of marriage.

Another interesting corollary is that civil unions would become actual contracts. As such they would have set terms for when a party to the contract is in breach, and under what terms the contract could be terminated. Some of these terms would be dictated by law (e.g. custody and support for any children), while others could be customized by the couple (e.g. treatment of pre-marital assets).

A couple wishing to break up would need to follow the provisions of their civil union contract. Such pre-agreed terms could greatly reduce the rancor of many divorces, leaving former partners and their children in better shape both emotionally and financially. Of course divorce attorneys by and large would not benefit greatly from this change.

If a couple was married, beyond the civil union, they would need to obtain a religious release according to their religion. This is already observed by religious Jews, who must obtain a "Get" or religious divorce in addition to a judicial divorce decree. Should a Jew fail to obtain a Get, no rabbi will agree to conduct a marriage ceremony for them in the future.

Why is it so important we do this?

The primary benefit of this change would of course be that there would no longer be an issue of different treatment of homosexuals under the law. Churches that object to homosexual marriages would be able to decline such ceremonies without concern that they might find their tax-exempt status challenged in court for ignoring the constitution. Churches that believe homosexuals should be allowed to marry will be able to perform such ceremonies without raising any constitutional or legal crises.

Finally, and perhaps most important - there would no longer be talk of a constitutional amendment that would enshrine a travesty of the most basic premise of our republic. Namely, that ours is a government of the people, for the people and by the people. All the people. Not just heterosexuals. Not just the religious. All the people. The powers that be would do well to remember that.