Tuesday, December 02, 2003

Now, thoughts on SSM, all the better for having been honed by a lively debate a few weeks back.

I don't think civil government can do much to help marriage along, any more than I believe it can do much to help the free market along. I do believe it can do a great deal to hurt it. It's already done this by no-fault divorce, which has lowered the standard for dissolving a marriage to below that of dissolving an ordinary contract. It can do it again by defining marriage as any group of people who happen to love each other and feel like signing a paper on it. We would undoubtedly be better off if government got out of the marriage business altogether than for it to take this next step.

But I don't think that would be workable. Somehow the state has to have a way to figure out who is responsible for these children that keep popping up inconveniently. It has to have a way to allocate inheritances, charge someone with children's debts, hold someone responsible for their support. This has nothing to do with the state interfering with the business of the family, it's just part of the state doing its job to protect individual rights. I can think of three ways for the state to handle the problem:

a. Charge only the person who's handy and obviously to blame: the mother. This is simple and avoids prying into details, but it seems distinctly unjust. It took two to tango, after all. Surely there should be some way to hold the other party involved responsible for the direct consequences of his actions.

b. Leave it all to individual contract and agreement and just have people come and try to prove them in court. This would be the pure libertarian approach, I believe. It sounds nice, but I don't think it would work. If we need a public registry to make sure people don't cheat and lie about land transactions, how much more is it needed to limit people's ability to cheat and lie about something we all know they cheat and lie about all the time? What's a court to do if a woman comes seeking child support against a man she was married to in one church, and the man brings up evidence that she was married to someone else in another church three months earlier? Who is responsible? (It reminds me of a scene in a hilarious old movie where a guy is honestly trying to prove he did not father a girl's child, but then so is the girl--who isn't actually the mother--and somebody else and they wind up with three guys claiming paternity, much to the incredulity of the interested party.) Paternity tests just aren't definite enough to settle these things.

c. As in the case of land, create a written registry whereby a woman can go and get advance certification that a man will be held responsible as her children's father. Then there's something definite the courts can look to for proof of responsibility. (As a corollary, make it fairly difficult to get those benefits outside the registry, or people won't use it. Again, we do the same thing with land.)

Now, it’s clear that if you look at marriage in this light, there is absolutely no logical reason for extending it to same-sex couples. They have no grounds for concern that babies might incidentally result from their union. If they want to go out and hunt babies up, they can make their own legal arrangements before anything happens. And if we do extend marriage to same-sex couples, we effectively divorce it from any connection with children and property succession. It becomes something the state does to provide people with validation for their personal relationships. Not only is this none of the state’s business, it will actively work against marriage as an institution that protects children’s rights because the personal validation of adults is definitely not necessarily in the best interests of children.

This marriage registry is obviously a long, long ways from the high and holy state of matrimony. That it is indeed up to the church to reinvigorate and restore. (Once it gets the egg off its own face over divorce.) It's going to provide the vast array of social benefits of marriage only in a strong society with character to support it--just as the free market can't exist in a society that doesn't have initiative and honesty. But I think there is a place for the state to keep track of who's who, so that it can charge the right people when something goes wrong.

And I don't think this involves civil government deciding what is good for children, particularly, just dealing with the realities of life in the most logical fashion. As it turns out, marriage is good for children, but that's not why it's important to the state--it is important to the state to order the disorder that children create. (In the end, too, the state is going to have to interfere between parents and children in some degree--when their life is threatened, or liberty is unreasonably trammeled. And the state is going to have to set up rules on what becomes of orphans. There will always be a gray line where the state has to decide what is good for children, which parents must watch vigorously.)

In summary, I don't think you can get the state out of the marriage business entirely without messing up its ability to properly enforce rights and responsibilities. I don't expect the state to make marriage better, but I would like it to stop making things worse by disconnecting it from its one obvious civil purpose. And I also think it's high time the church started preaching by example instead of just by political action.

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