Deregulation of Marriage

by on March 1st, 2004

Recently, I wrote about the gay marriage debate and how the only solution is to return the practice to its private roots. I have received a lot of concurring and dissenting feedback. As I ponder my premises, I will restate the case that this touchy issue is a state created problem, and the only palatable solution is for the state to get out of the marriage business altogether.

Gay marriage proponents are locked in an argument with mainstream America over the language of our current marriage regulations, and both seek to either maintain or to extend the use of government force to fit their definition of the contract. The only fair answer is a complete deregulation of marriage – i.e. remove the state from having the power to define the contract.

By requiring a state license and sanctioning a specific definition of marriage, the state automatically excludes some specific sub-group from the process. At this time, gays do not fit the state’s definition, and that is what the Massachusetts and San Francisco courts are attempting to change. Even under the newly proposed definitions, polygamists and incestual partners remain excluded. I think the religious right sees the precedent this sets and, while I disagree with their fears, I can at least understand their position. The gay movement attempts to redefine current marriage regulations to include their sub-section of the population, ignoring other groups who might desire the same rights. This inconsistency deserves notice.

Assume the state agreed to a complete deregulation of marriage. Private parties would thereby create their own contract (much like a prenuptial agreement.) Marriage, as a sacrament or ceremony of a church would remain as it always has been. Any particular church would have the right to include or exclude whomever they choose from their specific ceremonies. For example, if the Catholic Church wants to bind a man and a woman into Holy Matrimony, and exclude two men from such a binding, that is their right, and in a free society, no state could force it otherwise. In addition, anyone would be allowed to enter into a secular “marriage” contract with whomever they like, calling it whatever they choose.

Further, the marriage contract would impose rights and restrictions only upon the people who sign it. The contract can make no demands upon a private third party or institution. If McDonalds signs an exclusive agreement to sell Coke products, they cannot tell Burger King which drinks they will sell. If a private institution wants to exclude a gay couple from participating in some action on their property, the gay couple’s marriage contract cannot impose upon that institution’s choice to do so.

Exclusion amongst private institutions is perfectly fine and must remain legal. Just as a non-Catholic is not allowed to accept holy communion; just as a non-Muslim is not allowed into Mecca; just as a non-Mormon is not allowed into a Mormon temple; just as a woman is not allowed to join the Augusta National Golf Course; just as a college frat is allowed to choose whom they want into their clan; just as I am not just given a Harvard MBA without being accepted, paying for and earning it; just as I can invite or exclude anyone I want into my home.

What these examples show is that this is a private property issue – and it is the real reason the major proponents of gay marriage (typically leftists) are refusing to identify this issue as such. Employing the property rights argument (which is the most powerful argument in their favor) is unpalatable because on nearly every other political issue, they are treading on such rights.

The religious right typically argues in favor of property rights, and if not for their mystical blindness to the nature of homosexuality, they would be forced to agree to this reasoning.

The mainstream gay movement must accept that marriage originated as a private practice (yes, between a man and a woman) – and they have to accept the fact that government force will not make the entire population approve of their lifestyle. They should demand their rights to contract with another individual of the same sex and demand that the government get out of the marriage regulation business, instead of changing the language of those regulations.

There are people who do not approve of others who smoke cigarettes. There are people who do not approve of all sorts of things – but this is America – in theory, we can do whatever we want, with whomever we want, so long as we do not impose the costs of our behavior upon others. A union, a contract, or a gay marriage does not impose upon the rights of any heterosexual individual, so long as the origin of that contract is private. The gay movement should identify this issue for what it is and give up trying to rewrite the regulations. If they choose this course of action, they can avoid making the same mistake the religious right is trying to push on them.

Deregulation is the only solution – but both sides are looking for state sanction (i.e. force) to push their beliefs on others. If the state does decide to redefine their definition marriage, it will not bother me one bit – but unless there is an honest dialogue that identifies the true source of this problem, many people are going to be unnecessarily hurt and upset by the final outcome.

Michael Hussey