State and Marriage
There is an old song which compares love and marriage to a horse and carriage: they go together well. But what about the state and marriage? Should government set standards for marriage and provide the official sanction? That's a horse of a different color.
by Fred E. Foldvary, Senior Editor
By natural moral law, each human being is independent and may freely associate with others. A community has a necessary interest in family relationships in setting rules regarding inheritance and incapacity. There needs to be some set of rules as to how property and authority will be transferred if a person is incapacitated or dies. The domestic partner should then have priority.
The minimal interest of government is therefore only to register who the primary domestic partner is and to have some orderly process of dissolving a union. Leaving aside all tradition, custom, and culture, government has no legitimate interest in determining what sorts of persons may be the primary domestic partners, other than reasonable requirement such as that they be sane human beings with the capacity to make purposeful choices.
The particular rules regarding marriage, such as the forms of titles to common property, rules regarding divorce, or how many mates there can be, are then arbitrary and can vary among cultures and communities. Therefore, government may not properly impose any arbitrary requirement such as that a marriage must consist only of one male and one female.
In the March 7, 2000, election, Californians voted in favor of Proposition 22, by which the state officially recognizes a marriage as only between a male and a female. If challenged, this measure is likely to be found unconstitutional, since the US 14th Constitutional Amendment prohibits the states from depriving its citizens of "privileges or immunities," hence of marriages performed in other States.
Marriage as a union of a male and female is sanctioned by many religions, traditions, and customs. These are the proper domains of creating marriage. Let marriage be a religious, social, and cultural creation, its rules set by membership in an explicitly and freely chosen community association. To the extent government is imposed, it should deal with the partners as chosen by the parties and not impose extra rules.
Given the prevailing cultural bias towards the traditional marriage between a male and a female, government should at least provide for domestic partnership rules that allow the mates rights to property, visitation, and divorce settlements similar to those of married people without fully authorizing this as a marriage. That should satisfy the basic desires of partners unable to legally marry.
-- Fred Foldvary
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Copyright 2000 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.