n old proverb warns: Be careful what you wish for — you may get it.
Conservatives who backed government-defined marriage may be experiencing real insight into that proverb. They have fought a pitched battle for the last several years to get states to maintain a government definition of marriage as a living relationship between one adult man and one adult woman. When judges have overturned such laws, social conservatives have (with good reason) decried such interventions as judicial activism and attempted to amend state constitutions to embed the traditional definition of marriage beyond the reach of the bench. Republicans used the issue in national elections to motivate the conservative base to the polls, to gain electoral advantage in presidential and congressional elections, and largely succeeded in that strategy.
However, the very argument that government should define marriage carried the seeds of the eventual failure of the strategy, as we have seen in New York’s legalization of gay marriage. By making government definition the prize, social conservatives legitimized efforts to change marriage's definition by government decree as well. Instead, social conservatives should have taken a lesson from fiscal conservatives and fought to keep government from defining marriage at all.
Social conservatives insist that the states need to protect the sanctity of traditional marriage for a few reasons — to encourage procreation, for societal stability, and others. However, this is a rather odd argument, given the fact that childbirth outside of marriage has been an epidemic for decades, and societal instability followed along with it. We don’t need help encouraging procreation; we need help in encouraging better parenting. That certainly relies on stable relationships between parents and children, but enforcement of the one-man-one-woman model didn’t keep the societal instability from rapidly expanding, especially in the cities.
Part of the decline of families that began in the 1960s can be blamed on cultural changes and rebellion against older social paradigms, and some on government interventions, such as welfare regulations that undermined marriage specifically. It also resulted from liberalized divorce laws, especially so-called no-fault divorce. While divorce was never illegal, until the latter half of the twentieth century, government treated marriage as an actual contract whose abrogation carried substantial civil liabilities. To obtain a divorce, a spouse needed actual grounds for termination of the marital contract, and courts, at least theoretically, issued property and custody settlements on the basis of fault. At the least, this approach made divorce costly and potentially ruinous, which may have left unhappy marriages in effect, but also solidified the stability that social conservatives seek.
After no-fault divorce and its equivalents prevailed, there were no substantial penalties for abrogating the marital contract. The original intent of no-fault divorce was to make the process easier and get courts less involved, and on those counts, it succeeded beyond anyone’s imagination. One spouse can end a marriage and end up with half the property and custody merely by walking out on the other. It’s the only kind of legal partnership in which one party can opt out with little consequence just because he might find another potential partner a little more attractive, or has unilaterally tired of the other partner.
American marriage didn’t get devalued because New York’s legislature followed that of New Hampshire and Vermont in legalizing same-gender marriage. It got devalued when we began treating marriages as less important and less binding than business partnerships.
The lesson from this isn’t that we need to jettison no-fault divorce. The proper lesson is that government doesn’t handle marriage well in the first place, especially protecting its "sanctity." What does government do well in addressing relationship issues? Enforcing contracts.
Instead of demanding that states define and enforce marriage in a narrow sense, conservatives should demand that government stay out of defining and performing marriages at all. Couples that want to form partnerships should create a legal relationship based on existing contract law that is neutral to issues of gender and sexual preference. When one partner wants to end a partnership, then the terms of the contract should be enforced by courts. That will not only get rid of government as a spiritual arbiter in marriage, a role for which it has repeatedly proven unsuitable, it would encourage couples wishing to marry to discuss and agree in great detail the terms of their relationship up front. That kind of preparation — and the knowledge that a court will enforce a partnership agreement — will produce better and longer-lasting partnerships, in part by discouraging impulsive decisions to leap into marriage in the first place.
Essentially, we would replace government-defined marriage with civil unions, or domestic partnerships. What would happen to marriage? Those who want to enter into a marriage relationship would have to go to the places better equipped to deal with sanctification: churches, synagogues, mosques, and temples. Will that mean that some churches have different definitions of marriage? Possibly. Some churches may decide to marry same-gender couples, others may not.
However, when government gets out of the marriage business, it won’t be anyone else’s business, and it will end government definitions that end up being seen as endorsements of certain lifestyles or denunciations of others. At the least, it would save the people who fought to get government to define marriage from the regret of watching how it gets defined as tradition wanes.
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