I had started to write this as an academic paper several years ago. It never got finished, so I’ve slightly rewritten it for the web. Enjoy.

The issue of same-sex marriage oft gets bandied about in the public forum. People are essentially arguing over whether marriage is a legal right, and whether marriage should be defined as a union between one man and one woman. The issues involving “gay marriage” are addressed fairly well (in a rather one-sided fashion) by Scott Bidstrup in Gay Marriage: The Arguments and the Motives. But the question that has not been sufficiently addressed is why marriage is a legal institution, and more importantly whether it should continue to be. I intend to demonstrate that marriage should not be an institution of the state, specifically in the US.

Marriage for love

One reason in favor of state-sponsored marriage is that the institution of marriage is an essential part of a loving relationship between two people. Marriage, along with the wedding that begins it, is seen as an important social bond. This can be broken down into three cases: marriage as a sacrament before God, marriage as a declaration to one’s community, and marriage as a promise between two individuals.

Obviously the first case should not be considerable in the US, where such religious concerns are not allowed to work their way into legal institutions. However, it should be noted that were marriage not a state institution, religious marriages could still take place; there would simply be no need to tell the government about them. Therefore, the removal of state influence on marriage does nothing to challenge the religious institution of marriage.

The second case, marriage as a declaration to one’s community, also has several parts. A couple wants their friends and family to join in the celebration of their love and/or emotional commitment, usually in the form of a wedding. However, it does not seem obvious that the ceremony of a wedding requires state approval; for example, couples who have what is known as a ‘second wedding’ are doing something socially acceptable but they do not get another marriage license from the state.

A couple might also want to let other people know that they are both romantically unavailable; to be introduced as a person who is married lets others know they should not begin courtship rituals or attempt sexual advances. It is not apparent, however, that state sanction of a marriage is any guarantee of such an introduction; and indeed, such introductions can be made without a marriage license. For example, a couple who was wed in another country but visits the US would not be expected to obtain a marriage license in order to have the right to call themselves a married couple.

The third case, marriage as a promise between two individuals, is a common reason for a couple to get married. They wish to give the vows of marriage to one another, promising that they will be faithful, that they will love each other for the rest of their lives, and other such things. This situation is similar to the second case in that it is not clear why the couple would want or require state approval of these promises. The only obvious reason is to add the weight of law to their promises. It seems absurd, however, that the government should have a mechanism in place to punish those who fail to remain in some emotional state. Furthermore, if a couple really wants the benefit of legal penalties for breaking their promises, then they already have the option of drawing up a legal contract. Therefore, there is no need to have an institution in place to protect such interests.

Marriage for family

Another reason in favor of state-sponsored marriage is that marriage is essential to the family unit. This basically breaks down into three parts: A marriage is necessary for the raising of children; marriage is necessary to protect one spouse from problems caused by the other; and marriage carries with it certain legal rights which are essential to the family.

I will not attempt to determine or whether marriage is necessary for the proper raising of children, or whether marriage is essential to the family unit, or even whether the family unit is important in the raising of children; those questions should be settled empirically, and are beyond the scope of this paper. They are also not relevant to the current discussion. If marriage is not necessary for the proper raising of children, then this line of inquiry is contradictory. Assuming then that marriage is necessary for the proper raising of children, there is still no reason to think that the state’s knowledge or approval of that marriage should be important.

That the legal institution of marriage is in place to protect one spouse from problems caused by the other requires some explanation. Using the word spouse assumes, of course, that the couple is considering itself to be married, and the question assumes that they have some sort of influence over one another’s lives. I think this question should best be examined by use of examples.

Suppose that a husband and wife both buy a house together, establishing it as jointly owned property, and the husband later grows tired of the wife and kicks her out. The law would allow the wife to obtain a divorce and split up the property or its value fairly. It seems like this is something the wife should be able to expect from the legal system, and so it seems to support the idea that marriage should be a legal institution.

Now imagine the same situation, except the two people are male best friends who buy a house together. The same result should be expected by the friend in this situation: he should expect to get his fair share of the property. Therefore the legal institution of marriage should not be needed to resolve this dispute, since the dispute should be resolved in the same way whether the two people are married or not.

That the legal institution of marriage carries with it certain legal rights and privileges is a fact, and whether the legal institution of marriage should carry those rights and privileges is a difficult question. I will to examine in general the sorts of rights and privileges guaranteed to married people, and where possible I will show that these rights and privileges should also be guaranteed to unmarried people.

Alan M. Dershowitz wrote a good article on the separation of religious and secular marriages, To Fix Gay Dilemma, Government Should Quit the Marriage Business, which roughly outlines the sorts of things one should expect from a ‘civil union’: “the financial consequences of divorce, the custody of children, Social Security and hospital benefits, etc.”

The financial consequences of divorce represent two different kinds of expectations. On the one hand, we have the situation described above: joint owners should be compensated when one decides to bail out. On the other hand, there are financial expectations in marriage which go beyond joint ownership. If a husband and wife have an arrangement where the husband works full-time and the wife takes care of the house, it seems like it would be unfair for the wife to get nothing in the case of a divorce, even though she did not contribute financially to the arrangement. I use “husband” and “wife” here because this is the stereotypical arrangement. However, there is no reason why unmarried people should not be able to enter into similar arrangements.

What if this arrangement occurred between two sisters? It is not inconceivable that sisters would choose to live this way, where one takes care of the house and the other works at a job. For example, suppose the older sister, Abby, is a very successful business executive, and the younger sister, Betty, is an unsuccessful aspiring artist. They might decide to enter into a similar arrangement, where for an indefinite period of time Betty takes care of the house and Abby works full-time. In this case, if Abby decides to kick Betty out, should Betty get compensation? And if not, why should the housewife mentioned above? Clearly if the financial consequences of divorce are justified, then Abby and Betty should have the option of entering into the same sort of arrangement, whereby Betty is guaranteed some compensation if Abby decides to bail.

But what about the custody of children? Sadly, where legal rights are concerned, children are never an easy case. Societal custom may be the best way of resolving this issue, for want of a better answer; custody of the children should be decided between the children’s parents. Thus, if Abby has children, then Betty will not get custody of them in the case of the ‘divorce’ above, as Betty is not a parent. And even if the father of Abby’s children is not married to Abby, he should still be given consideration in any dispute over custody of the children.

I think it is clear that Social Security, hospital visitation, and related benefits should be available to anyone. My wife should be able to visit me in the hospital, but so should anyone else I want to designate. If I have a close relationship with my best friend, then I should be able to designate him as: someone who can visit me in the hospital, a beneficiary for various benefits, a member of my family, my next-of-kin, or any other status that has to do with an association to myself. The government should not be the sole arbiter of which relationships are relevantly important for these things; I should have the final say on this.

It is because of the state institution of marriage that these things cannot be guaranteed to all people. Wanting to receive these benefits is conflated with receiving a religious sacrament, being in love, and many other cultural constructs that people rightly don’t want violated. And so people will stand in the way of the rights of others, in the name of protecting marriage or some other such thing. If “marriage” were not a state institution and was not necessarily related to the “civil union”, then there would be no reason for gays to be upset that the government denies them “the right to be married”, and there would be no reason for anyone to stand in the way of the benefits of the civil union for any two people.

And so we see that there is no good reason for the state to be involved in marriage. Everything that we can fairly expect from the state regarding marriage can be accomplished better without such an institution, and there are many harms which come directly from the state institution of marriage. The debate over same-sex marriage is merely one of the many disputes which could be avoided entirely by eliminating this wasteful practice of the government.

And so I will leave you with the following thought experiment:
It is the future, and “marriage” is no longer a state institution. Two men, Gary and Steve, are very good friends. They live together - Steve is a very successful investment banker, and Gary stays at home and takes care of the house. They have been very close and had this arrangement for many years. The house is in both Steve and Gary’s names, and they are both listed as beneficiaries on each other’s wills. Steve is a widower, and has an 8-year-old son, Billy; his wife died in childbirth, and Gary has been helping to raise Billy ever since. Steve and Gary decide to get a civil union, guaranteeing them the right to hospital visitation and ensuring that if anything happens to Steve, then Gary can continue to raise Billy (amongst other benefits).

Are Steve and Gary gay? Do they commit sodomy?
Is it any of your damn business?