Why The Government Can’t Get Out of the Marriage Business

As the US continues it’s “national conversation” on same sex marriage, it’s fairly standard for someone to suggest that it’s time for the state to get out of the marriage business and have marriage be a strictly religious/personal arrangement. This seems like a fairly neat way to sidestep the issue of having to reach a state consensus on what marriage is, with the inevitable one-side-tramples-the-other problem that suggests. However, I’d like to suggest that it’s an impractical and illusory solution.

To start with, I think we need to look at why the state is involved in marriage in the first place. I’d suggest that the reason has little to do with managing morals or family values, it has to do with the essential function of government: being an arbiter in disputes, primarily about property. In this regard the state ends up needing to define marriage and know who is married in order to answer two questions: who owns what and whose kids are whose.

Say two people have been spending a lot of time together for the last five years. Now they’ve had an argument and want to not see each other again, but one of them claims that some things in the possession of the other are actually his. Are they? The state gets pulled into these questions because its job is to arbitrate disputes rather than leaving people to solve them the old fashioned way (which was by raising themselves up on their hind legs and bashing each over the head with flint axes.) Continue Reading