There
is no question that the media, political, and cultural push for gay
marriage has made impressive gains. As recently as 1989, voters in
avant-garde San Francisco repealed a law that had established only
domestic partnerships.
But judging by the questions posed by Supreme Court justices this
week in oral arguments for two gay-marriage cases, most observers do not
expect sweeping rulings that would settle the issue and avoid
protracted political combat. A total of 41 states currently do not allow
gay marriage, and most of those laws are likely to remain in place for
some time. Even should the Court declare unconstitutional the Defense of
Marriage Act, which defines marriage as between a man and a woman for
federal purposes, we can expect many pitched battles in Congress. The
word “spouse” appears in federal laws and regulations a total of 1,138
times, and many of those references would have to be untangled by
Congress absent DOMA.
No wonder Wisconsin’s GOP governor Scott Walker sees public desire for a Third Way. On Meet the Press
this month he remarked on how many young people have asked him why the
debate is over whether the definition of marriage should be expanded.
They think the question is rather “why the government is sanctioning it
in the first place.” The alterative would be to “not have the government
sanction marriage period, and leave that up to the churches and the
synagogues and others to define that.”
Governor Walker made clear these thoughts weren’t “anything I’m
advocating for,” but he gave voice to many people who don’t think the
gay-marriage debate should tear the country apart in a battle over who
controls the culture and wins the government’s seal of approval.
Gay-marriage proponents argue that their struggle is the civil-rights
issue of our time, although many gays privately question that idea.
Opponents who bear no animus toward gays lament that ancient traditions
are being swept aside before the evidence is in on how gay marriage
would affect the culture.
Both sides operate from the shaky premise that government must be the
arbiter of this dispute. Columnist Andrew Sullivan, a crusader for gay
marriage, has written that “marriage is a formal, public institution
that only the government can grant.” But that’s not so. Marriage
predates government. Marriage scholar Lawrence Stone has noted that in
the Middle Ages it was “treated as a private contract between two
families . . . For those without property, it was a private contract
between two individuals enforced by the community sense of what was
right.” Indeed, marriage wasn’t even regulated by law in Britain until
the Marriage Acts of 1754 and 1835. Common-law unions in early America
were long recognized before each state imposed a one-size-fits-all set
of marriage laws.
The Founding Fathers avoided creating government-approved religions
so as to avoid Europe’s history of church-based wars. Depoliticizing
religion has mostly proven to be a good template for defusing conflict
by keeping it largely in the private sphere.
Turning marriage into fundamentally a private right wouldn’t be an
easy task. Courts and government would still be called on to recognize
and enforce contracts that a couple would enter into, and clearly some
contracts — such as in a slave-master relationship — would be invalid.
But instead of fighting over which marriages gain its approval,
government would end the business of making distinctions for the purpose
of social engineering based on whether someone was married. A flatter
tax code would go a long way toward ending marriage penalties or
bonuses. We would need a more sensible system of legal immigration so
that fewer people would enter the country solely on the basis of spousal
rights.
The current debate pits those demanding “marriage equality” against
supporters of “traditional marriage.” But many Americans believe it
would be better if we left matters to individuals and religious bodies.
The cherished principle of separating church and state should be
extended as much as possible into separating marriage and state. Ron
Paul won many cheers during his 2012 presidential campaign when he
declared, “I’d like to see all governments out of the marriage question.
I don’t think it’s a state decision. I think it’s a religious function.
I am supportive of all voluntary associations and people can call it
whatever they want.”
Supporters of traditional marriage know the political winds are
blowing against them. A new Fox News poll finds 49 percent of voters
favoring gay marriage, up from just 32 percent a decade ago. And among
self-described conservatives under 35, Fox found support for gay
marriage is now at 44 percent. Even if the Supreme Court leaves the
battle for gay marriage to trench warfare in the states, the balance of
power is shifting. Rush Limbaugh, a powerful social conservative, told
his listeners this week: “I don’t care what this court does with this
particular ruling. . . . I think the inertia is clearly moving in the
direction that there is going to be gay marriage at some point
nationwide.”
But a majority of Americans still believe the issue of gay marriage should be settled by the states and not with Roe v. Wade–style
central planning. It might still be possible to assemble a coalition of
people who want to avoid a civil war over the culture and who favor
getting government out of the business of marriage.
— John Fund is national-affairs columnist for NRO.