The Other Side of the Marriage Argument

Cross-posted at

In the 2012 Election, three states voted successfully for broadening the definition of marriage to include two members of the same sex. In addition to Maine, Maryland, and the state of Washington passing referenda permitting gay marriage, Minnesota repealed by referendum a previous restriction against it.

With the Supreme Court deciding this week whether or not to hear arguments at the federal level on the Constitutionality of such unions, arguments for and against same-sex marriage are sure to rear their boisterous heads again.

But while some opponents of “marriage equality” will certainly use the parallel argument of the slippery slope — which, on principle alone, could potentially further broaden the definition of marriage to legalize polygamy and incest — few have considered the implications to the reverse side of the argument.

The central question to the argument is whether or not the 14th Amendment’s “equal protection” clause prohibits states from defining marriage — as recognized by the state — as between one man and one woman, since such a definition would restrict certain persons from pursuing such a contract with the object of their affection. More popularly, the question is posed as “why can’t two people who love each other get married if they want to?” Another question before the court is whether or not the Defense of Marriage Act is Constitutional, as it denies federal marriage benefits to state-recognized marriages.

If the Supreme Court rules that the 14th Amendment denies the sovereign states to determine who enters into state-recognized marriages, or that marriages deserve equal federal protection, eventually the same questions on the matter of divorce must be raised.

Currently, states are all over the place on conditions of divorce. While all 50 states (and Washington, DC) now have no-fault divorce allowances for two consenting adults, some states still require separation periods before a marriage can be dissolved. Most states have residency requirements. Nearly all have some sort of combination of these restrictions.

If the question on same-sex marriage is, “can the states restrict who may and may not enter into matrimony,” and that question is decided in the negative, the question must also eventually be asked, “can the states place conditions on who may and may not dissolve the contract of marriage?”

On the “marriage-benefit” side of the question (DOMA), does the state or federal government have a right in keeping one spouse (same- or opposite-sex) as a legal beneficiary to the other when the other has no such desire keep them? Does Spouse A have rightful authority by default to make medical decisions for Spouse B, even when they are entering a period of separation?

Is there “equal protection of the laws” if Couple A in Washington may marry and divorce in the same month with no preconditions, while Couple B in New Jersey must endure 18 months of separation in order to receive a divorce decree?

The answers, of course, are no. (That is, if the court determines the contractual engagements of a partnership — like, <ahem>, in a corporation — are included among the fundaments of life, liberty, and property.) If the state must accept the contractual agreement between two consenting adults on the contractors’ terms, so they must also accept the dissolution of marriage on the contractors’ terms. Of course, this would mean states would be prohibited from imposing waiting periods or other preconditions on divorce decrees. It would not be the state’s place to determine whether or not the dissolution of a contract is warranted — so long as two consenting adults are in agreement. The state — both in marriage and divorce — would no longer be a contractual party; they would simply be the notary.

Some may welcome this as progress: “Who are you to say whether or not two people who don’t love each other may live happily divorced?”

But the logical conclusion of such a line of argument is, ultimately, that the state will have absolutely no business in the contract of marriage.

If the terms of modern matrimony (namely, “two consenting adults who love each other”) may be defined exclusively by the contractors, the state must be forced to accept that they have no right to encourage or discourage any form of matrimony. Therefore, the state will have no business in providing tax incentives for marriage, as this is not an equal protection of property for those who will not or cannot seek matrimonial contracts. Medical decisions will be determined by an individual’s power of attorney, not by the default of being a legal partner. Survivor benefits will be determined solely by wills and bequests, not by spousal loyalty.

Of course, if we have conclusively proven that terms of divorce are not the state’s business, then it is also not their business to determine “mutual consent.” We must then accept then that one party may without delay receive a decree of divorce without the other party’s consent. “I am not happy in this relationship — who are you to tell me to find cause, or convince my partner, to dissolve the offending contract?” Perhaps the other spouse may sue for breach of contract, but his or her suit — just as in business — could never force one partner to remain in connubial conjugation.

In other words, a spouse will be legally reduced, in the very least, to nothing more than a “best friend;” at the most, it will still be as capricious as a business partnership. Person A may treat Person B as a spouse, but it would not be the state’s business even to recognize — much less sanction — the sentiment of the relationship. It is their business, and their business alone, if and for how long they decide to perpetuate the relationship. Marriage will be a handshake of exclusive parties, rather than a union of two into one under the supervision of a higher authority.

We will praise fluttering nuptials, and all divorces will in essence be diriment impediments, until, through a sort of societal mithridatism, we will have become so tolerant of contracts and their wanton dissolution that perfidy will no longer be poison, and fidelity no longer a philtre.

In a word, what was once the liberty of pursuing sacred contracts will eventually be nothing more than a licentious pursuit of sensual connections.

If the advocates of broadening the definition of state-sanctioned marriage get their wish, the definition might become so broad as to render the term without a tangible benefit and meaninglessly relative. That is, except to those who might still consider their vows of marriage to God greater than their submission to the state.

@AD_Schwartz | | Andrew’s Posts

  • There are two points you make that I find quite concerning about your view:

    First: “Marriage will be a handshake of exclusive parties, rather than a union
    of two into one under the supervision of a higher authority.” The higher authority you seem to reference here is not God, but is the government. Your primary lamentation is the enforceability of the marriage covenant under man’s laws. If the concern is about the weakness of man’s laws to enforce a holy covenant, than my personal concern is minimal.

    “That is, except to those who might still consider their vows of marriage to God greater than their submission to the state.” In reality the vows of marriage can be a covenant before God or a state sponsored contract or both. The point you make by implication with your statement is that the state sponsored contract has nearly fully supplanted the covenant before God. This is what happens when morality, based on religion, is legislated through secular authorities.

    I’m not saying that religion has no place in public policy, but rather that religion, and individual morality are inherently corrupted by public policy, when, as is the case here, public policy, rather than God, defines marriage.

    • Your inference as government as “the higher authority” is yours to make. Feel free to interpret it how you wish. A different understanding of my post, however, would alleviate your concerns altogether.

  • A factual point: Minnesota did not repeal a law banning same-sex marriage in the November 6 election. Voters there rejected a constitutional amendment that would prohibit same-sex marriage. A statute to that effect remains in the Minnesota state code.

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