Be careful what you wish for

Social conservatives have long pushed the government to define marriage. Now, after New York legalized same-sex marriage, these social conservatives ought to eat crow

An 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.