I have to admit I have paid little attention to the gay marriage debate. Not because I think it is unimportant, but because I disagree so strongly with every "official" position that I have no voice in the argument. Or did not until recently. However, while one side has now adopted my argument, I am afraid they did so not out of principle, but for tactical advantage, so I still feel there is no one arguing the proper line.

Let me start by stating my position clearly. My vision of the ideal government can be found in my posts "My Vision of Government" and "My Vision of Government Part II", with some additional arguments for federalism found in "The Benefits of Federalism", "Why I Am Not A Libertarian" and older posts. And as I do believe in federalism so strongly, I think that in the end marriage questions should be settled on a state-by-state basis. Of course, many will argue that "full faith and credit" makes that impossible. And it is a problem. Mainly because so much of our law is not just tied up in the term "Marriage" but in the assumption that the word will mean the same thing in every state.

Very few terms of art in law have the same problem. Almost every other term is assume do vary from state to state, and laws are written such that a local definition overrides a foreign definition in matters of local law. For example, "sex offender" for purposes of a registry is always defined by the local law's definition, even if the previous state of residence has a registry law. Marriage is the only term where we don't bother adopting a formal definition and expressing a preference for it.

And that could be one solution, for local states to rewrite every law relating to marriage to express a preference for local definitions. That would not only eliminate the problems of foreign courts imposing gay marriage on a state, but it would remove the need for any additional defense of marriage laws. Of course it does nothing for federal laws, and does not remove the possibility of continuing law suits, seeking to remove the annoying clause for this statute or that. (And I am sure many will continue to argue such clauses are unconstitutional or discriminatory, as it costs less to file such a suit than defend against them, making any war of attrition favor the activists.)

And that lack of an easy federalist solution, along with my view of the ideal scope of government, led me to adopt my more libertarian (rather than federalist) solution.In my posts "Solving the Gay Marriage Debate" and "Updating an Old Post" (as well as "The State and Morality"), I argued that marriage should not exist as a legal construct. Instead, those seeking marriage can conduct whatever religious services that they can find ministers willing to perform. However, the law would recognize none of it, instead substituting a bundle of contractual agreements to take the place of existing implicit marriage contracts. It would require some small changes to existing contract law, especially in contracting parental rights and responsibilities, but it could be done. It would also allow individuals to form various non-standard marriages, including those with more or fewer shred rights and responsibilities, with more than two individuals, and so on.

Now, let me be clear, I am not one of the libertarians who is proposing such laws and secretly gleeful that I am on the "right" side, happy that my principles also put me on the socially liberal side of the argument, supporting gay marriage, polygamy, and so on. I have a very narrow and traditional view of marriage, and I think gay couples will find, if they get what they want, that the only ones happy about it are divorce lawyers. On the other hand, I also believe that government is meant to be very narrow, protecting only individual rights. Ethics, at least where violations do not harm another, is a question between man and G-d, and voluntary compliance is more important to G-d than state forced "morality". I know some disagree, but the whole idea of state enforced morality is anathema to the idea of a free state, even if the Founders were not entirely consistent on this point (allowing many morals laws we would find draconian today).*

Still, it seems that my position has been picked up by some of the pro-gay-marriage groups. Which came as quite a surprise.

However, after thinking about it, I think that they may be arguing the same point for quite different reasons. My position is simple, and consistent with my beliefs. I think the government should leave as much as possible to private individuals. As there is no compelling need to involve the state in matters of marriage**, there is no reason to keep marriage as a legally recognized status. Some will argue that marriage is the cornerstone of society and has many benefits, but my response is "will it provide any less benefit if it is deprived of the state tax stamp?" Is our religion less beneficial because it is not part of the state as it was many places throughout history? If religion can be beneficial while remaining private, then why not marriage?

But I have a feeling that is not the thinking behind most of those arguing for removing the state from marriage altogether. As these same people could have "civil unions" but will not accept anything short of marriage, I do not think they truly mean what they say. A few may, though not for the reasons I proposed, but because to their minds the next best thing to gay marriage is destroying marriage for everyone. (A dog in the manger mindset I do not endorse.) But most, I think, have proposed this as a tactic. They know very well most on the right will not give up state definition of marriage, so, by making this proposal, they are hoping to drive a wedge between some of the libertarian/economic conservatives and the social conservatives. In addition, they can also tell moderates they proposed an alternative that the conservatives rejected, making it appear the conservatives are the ones being unreasonable.

So, I can honestly say, I am not in the same camp as those making this argument. Yes, we have said the same things, but that is where the similarity ends. I sincerely think the state should be kept to a bare minimum, and this is but one aspect of that belief. They, on the other hand, are simply engaging in maneuvering to try to win their fight, pushing a position they don't believe in order to gain advantage.

So, though it is a bit uncomfortable to be agreeing with some whose goals I find objectionable, I still stand by my original position. The state should stick to protecting rights and enforcing contracts, while marriage should remain the province of private individuals and their religious leaders. To mix the state in religious matters is to ask for trouble, to mix the state in anything but a very narrow range of matters is dangerous, so let us keep the state to those matters at which it excels, and leave the rest in the hands of individuals.

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* I do not intend to enter the abortion debate here, as that is a difficult legal area. However, one does not need to enter the realm of ethics to argue the question of abortion. If a fetus is a person, then we are once again in the "violation of rights" territory, so either side can be supported without any mention of ethics separate from the protection of individual rights. Which means my opposition to laws trying to save people from themselves by enforcing morality does not have any bearing on many other contentious areas. But that is, clearly, a subject for another post. (For those interested, I covered abortion topics in "Unneccessary Legal Concept", "Legal Schizophrenia", "A Few Questions on Abortion", "A Much More Simple Abortion Question", "Why Judicial Activism Hurts", "What I Want in a President", "Strange Contradictions", "Interpretation and Activism", "Best of the Web Imitates Me XII", and "Reading Into Things". I also wrote on the harm done by single-issue voting on abortion, among other topics, in "Single Issue Voting", "Principled Voting or Suicide?", and "Economic Versus Social".)

** In the days before DNA, or even blood tests, to establish paternity, marriage was used as a shortcut to establishing paternity, with the legal assumption a woman's husband is the father of her child. However, in this day, not only is that no longer needed, but it actually produces absurdities such as children who can scientifically be proven not to be a man's child still legally presumed to be his. And, excepting paternity, marriage really does not perform any legal functions which cannot be handled by contract law.

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POSTSCRIPT

As I wrote about the proper function and purpose of government, here is a list of select essays on that topic:

Tools
Many Types of Conservatives?
The Shortcomings of Pragmatism
Doing Something
The State and Morality
A Bit More Explanation
Truths About Taxation
When Help Hurts
An Unappreciated Truth
The Citizen Dichotomy
What We Deserve
Your Fellow Man
My Vision of Government
My Vision of Government Part II
Third Party Problems
Some Libertarian Analogies
Inescapable Logic
Smaller Government , Fair Weather Friends and Special Cases
Eurocentrism? Racism? Liberal Traits All

Obviously, this is not comprehensive, almost everything I write relates tot he purpose of government. Hwoever, this list does seem to hit most of the essays whose main purpose was to discus the topic in the abstract.