As anyone who has read my blog knows, I am a bit of a non-traditional conservative on the question of gay marriage. My preference would be to remove the government from questions of marriage entirely, moving the questions of marriage to the realm of contracts and private ceremonies, as well as eliminating all recognition of marriage from the law, at least as much as possible. Insurers and others could decide how to handle marriages and who to cover and not cover, tax law would take no recognition of marriage, and in those few matters where marriage may make a difference, such as custody, support and inheritance, the individuals' statements as to their marital status could be used the way many states recognize common law marriage today. (See "Solving the Gay Marriage Debate", "Updating an Old Post" and "Revisiting Gay Marriage".)

However, that is not my subject today. I just wanted to make clear my position up front.

My thought today is instead about marriages themselves, and whether the entire concept of gay marriage makes sense in context of our legal system.

I know many deny it, but our law recognizes marriage for one very simple reason, procreation. I know many argue that we should then not allow the infertile to marry, or the elderly, but that is a spurious argument. Think about the realities of marriage. First, we do not legally codify relationships, you do not have legal ties to your friends, or even to relations outside your immediate ancestors and progeny. The only relationships that impose obligations are those tied to procreation, children, parents and spouses.

The whole marital system is designed with the thoughts of child rearing in mind. It is not valid until it is consummated. It can be annulled for lack of consummation. The husband can be obligated to pay the wife support, on the assumption she would be rearing children. He is also required to leave her an inheritance as it is assumed child rearing would prevent her from providing for herself. Adultery is a crime, but sexual relations between unmarried individuals is not. Similarly, children born in wedlock are assumed to be the offspring of the husband.

The whole system is designed to provide an environment for siring and rearing children.

No, it does not make much sense for us to marry those who are infertile or too old to bear children, but it makes legal sense, as the law presumes those marrying have the ability and intent to bear children and does not ask about the likelihood of them succeeding. Provided they are male and female and not so closely related that marriage is forbidden by law, as well as not currently married to another, the law presumes they know what they are doing, and that they are capable of procreation.

Many will argue this is an antiquated notion, that wives are no longer breeding machines, that women do not need support,  that there are many single parents, people adopt and so on. And, if that is the case, then doesn't it make more sense to do away with marriage, rather than add gay marriage to the mix? After all, marriage is a singular, special case. The government does not regulate our friendships, marriage is the single exception, due to the special needs of child rearing. So, if those needs no longer apply, then why not eliminate marriage as a legal concept rather than add gay marriage?

POSTSCRIPT

This article was, in part, inspired by this article in the WSJ, though many of the ideas had been flitting through my head for some time. I had previously not written them as they had little to do with my position. However, on reading a similar argument being made, I decided it was time to put my own thoughts in writing as well. (I don't agree with everything the article says nor do I agree with his conclusions in their entirety, but his argument is still worth reading.)

POSTSCRIPT II

There are several issues involved here that muddy the waters. Some want gay marriage as nothing more than a sign that society accepts homosexuality. That is a foolish thought, as even if the gay rights movement has the political clout to force through nationwide gay marriage it shows only that they have political clout, not that society accepts gay marriage. Acceptance comes with time and persuasion, not brute force of pressure group politics. If anything, such an approach will set back acceptance, the way Roe v. Wade has made the abortion debate ever more acrimonious.

Many other press for gay marriage for a valid reason, because special rights have attached to marriage which are not available to those not married. For instance, many medical decisions fall to family members, even if advance directives exist. (Legally this should not happen, but it does.) The presumptive rights granted to family often trump explicit contracts. And some rights cannot be contractually granted. In addition, benefits like health insurance extend only spouses and children, not any other relationship. However, the solution to that is not gay marriage, but rather to respect contracts (and perhaps expand the scope of rights which can be contractually assigned), as well as splitting rights and benefits form marriage. Those reforms would make many of the arguments for gay marriage irrelevant.

Of course, as I have argued for some time, if marriage were returned to being a private matter, with rights assigned by contract, then one would be free to define who he saw as "family". Of course the states could not then force insurers to cover specific relatives, but I am sure insurers would be happy to negotiate with individuals on such questions, maybe even more happy as they would not have state mandates hanging over their heads. Nor is insurance the only area where problems would be resolved. But, having made that argument elsewhere, I will spare you a repeat.