The issue of same sex marriage has dominated the news this week. I am going to assume that anyone reading this has already read/heard/seen a number of articles discussing both Supreme Court cases from a number of different angles. As an issue of federalism and equal rights, I think the case is pretty clear cut. But I can’t help but join in the general obsession with the issue of the week.
Supporters of anti-gay legislation argue that it is the state’s responsibility to protect the moral fabric of the nation, treating homosexuals as moral equals encourages the immoral behavior. Those in favor of equal marriage–regardless of the couples gender composition–want the state to provide the same benefits to all couples who have entered into a legal commitment. If the state did not already favor married couples there would be push for same-sex marriage.
But wait–why does the state even care? The state is not neutral on the issue of marriage. Marriage is the only relationship the state legitimates, you don’t have to register significant others or best friends. You don’t even have to register fathers on birth certificates. It was not always the case that marriage was legitimated by the state. If you have ever tried to search the archive for marriage licenses you will find that they were not consistently administered until sometime in the early to mid-19th century. After the Civil War, proof of marriage was needed to collect widow’s benefits and/or pensions. In the early 20th century, the Social Security Act and new benefits for soldiers and their families made proof of marriage increasingly important. In order to prevent fraud, the state increasingly limited spousal benefits to legally recognized and registered partners. So rather than having witnesses attest to the fact that you lived as husband and wife, it became necessary to produce a document that established the legal beginning of your union.
To encourage couples to register their unions, the state used the tax code as a carrot. This in itself is interesting because the early state pushed for legal identities in order to collect taxes–so the general population resisted any form of registration to avoid taxation and conscription–whereas today providing the state with more details of your life generally leads to lower tax burden and greater benefit. If you make the state aware of your personal commitment to someone, the state will allow you to file joint taxes, avoid estate taxes, receive survivor benefits etc. It will also legitimate your union to hospitals, insurance companies, banks, etc. State-sanctioned marriage makes life easier much in the same way a Social Security number makes life easier. There is no legal requirement that you get either but there are lots of carrots for those that do.
There are many reasons why the state wants to know if you really meant to commit to someone else. As I mentioned early, benefit fraud is a big one. But it is not the only reason. Without legal avenues for recognizing marriage, there can be a lot of disagreement over who is really married. For example, if two young people run off together and their parents disapprove who is to say whether they are married or just young and foolish? Common law marriage would say after a certain period of cohabitation they are considered married but what about adulterers? By requiring documentation it leaves out the guess work. Public health is another (misguided) reason the state involved itself in marriage. In the past blood tests were often required prior to registering a marriage in the hopes of reducing syphilis outbreaks.
The state’s interest in documenting the population and creating legal clarity produced state-sanctioned marriages. At various points morality has crept in–for example anti-polygamy laws–but it wasn’t the starting point. From the state’s point of view creating stable and visible unions is more important than promoting a certain vision of marriage. The only compelling argument against same-sex marriage (which I haven’t heard) is concerns about “Big Brother” surveillance of our personal lives, which would be an argument against all state-sanctioned marriages. Why should the state care about who I chose to spend the rest (or parts) of my life with? Because, like it or not, today the state plays an invisible role in so many aspects of our lives that it would be difficult to extricate it.