thCultural civil war can be avoided by getting government out of marriage.
By John Fund

There is no question that the media, political, and cultural push for gay
marriage has made impressive gains. As recently as 1989, voters in
avant-garde San Francisco repealed a law that had established only domestic
partnerships.

But judging by the questions posed by Supreme Court justices this week in
oral arguments for two gay-marriage cases, most observers do not expect
sweeping rulings that would settle the issue and avoid protracted political
combat. A total of 41 states currently do not allow gay marriage, and most of
those laws are likely to remain in place for some time. Even should the Court
declare unconstitutional the Defense of Marriage Act, which defines marriage
as between a man and a woman for federal purposes, we can expect many pitched
battles in Congress. The word “spouse” appears in federal laws and
regulations a total of 1,138 times, and many of those references would have
to be untangled by Congress absent DOMA.

 

No wonder Wisconsin’s GOP governor Scott Walker sees public desire for a
Third Way. On Meet the Press this month he remarked on how many young people
have asked him why the debate is over whether the definition of marriage
should be expanded. They think the question is rather “why the government
is sanctioning it in the first place.” The alterative would be to “not
have the government sanction marriage period, and leave that up to the
churches and the synagogues and others to define that.”

Governor Walker made clear these thoughts weren’t “anything I’m
advocating for,” but he gave voice to many people who don’t think the
gay-marriage debate should tear the country apart in a battle over who
controls the culture and wins the government’s seal of approval.
Gay-marriage proponents argue that their struggle is the civil-rights issue
of our time, although many gays privately question that idea. Opponents who
bear no animus toward gays lament that ancient traditions are being swept
aside before the evidence is in on how gay marriage would affect the culture.

Both sides operate from the shaky premise that government must be the arbiter
of this dispute. Columnist Andrew Sullivan, a crusader for gay marriage, has
written that “marriage is a formal, public institution that only the
government can grant.” But that’s not so. Marriage predates government.
Marriage scholar Lawrence Stone has noted that in the Middle Ages it was
“treated as a private contract between two families . . . For those without
property, it was a private contract between two individuals enforced by the
community sense of what was right.” Indeed, marriage wasn’t even
regulated by law in Britain until the Marriage Acts of 1754 and 1835.
Common-law unions in early America were long recognized before each state
imposed a one-size-fits-all set of marriage laws.

The Founding Fathers avoided creating government-approved religions so as to
avoid Europe’s history of church-based wars. Depoliticizing religion has
mostly proven to be a good template for defusing conflict by keeping it
largely in the private sphere.

Turning marriage into fundamentally a private right wouldn’t be an easy
task. Courts and government would still be called on to recognize and enforce
contracts that a couple would enter into, and clearly some contracts — such
as in a slave-master relationship — would be invalid. But instead of
fighting over which marriages gain its approval, government would end the
business of making distinctions for the purpose of social engineering based
on whether someone was married. A flatter tax code would go a long way toward
ending marriage penalties or bonuses. We would need a more sensible system of
legal immigration so that fewer people would enter the country solely on the
basis of spousal rights.

The current debate pits those demanding “marriage equality” against
supporters of “traditional marriage.” But many Americans believe it would
be better if we left matters to individuals and religious bodies. The
cherished principle of separating church and state should be extended as much
as possible into separating marriage and state. Ron Paul won many cheers
during his 2012 presidential campaign when he declared, “I’d like to see
all governments out of the marriage question. I don’t think it’s a state
decision. I think it’s a religious function. I am supportive of all
voluntary associations and people can call it whatever they want.”

Supporters of traditional marriage know the political winds are blowing
against them. A new Fox News poll finds 49 percent of voters favoring gay
marriage, up from just 32 percent a decade ago. And among self-described
conservatives under 35, Fox found support for gay marriage is now at 44
percent. Even if the Supreme Court leaves the battle for gay marriage to
trench warfare in the states, the balance of power is shifting. Rush
Limbaugh, a powerful social conservative, told his listeners this week: “I
don’t care what this court does with this particular ruling. . . . I think
the inertia is clearly moving in the direction that there is going to be gay
marriage at some point nationwide.”

But a majority of Americans still believe the issue of gay marriage should be
settled by the states and not with Roe v. Wade–style central planning. It
might still be possible to assemble a coalition of people who want to avoid a
civil war over the culture and who favor getting government out of the
business of marriage.

— John Fund is national-affairs columnist for NRO.