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Why heterosexual marriage should not be legal (or, how to relieve John Edward's "personal conflict")

By Micah Tillman
web posted August 6, 2007

Asked about legislating gay rights, John Edwards admitted his religious inclinations and political philosophy were at odds. The latter tells him the former should not be "imposed" through law.

Moments before, Dennis Kucinich had cited the Constitution's [sic] claim that "all are created equal" as a basis for legalizing gay marriage. He experiences no Edwardsian dissonance.

But the statement that "all men are created equal" is from the Declaration of Independence, not the Constitution. We are bound by conscience, not law, to believe it. We feel compelled, therefore, to ask Kucinich whether he shouldn't be in the same boat as Edwards.

And since turnabout is fair play, we'd ask Mr. Edwards:

Why should you be ashamed of legislating your beliefs when your opponent isn't? Why not fight fire with fire? Or, more importantly: Why would you let government have any say in marriage if it is a religious issue?

At this point Edwards might realize we are not simply goading on a debate between Liberals we love to hate. We are actually trying to help. The solution to Edwards' problem, you see, lies in the argument that, as a sacred institution, marriage cannot be constitutionally regulated by government. Laws about it are only as legitimate as governmental prescriptions regarding who can be ordained a minister or receive Communion. Good fences, the First Amendment tells us, make good neighbors.

Certainly it's hard to imagine any legislature repealing the various laws about marriage certificates, tax filing, property transfers, child custody, and so on. But that's why we have courts and lawyers, right? The Constitution is the Constitution, after all, and a candidate's peace of mind is priceless.

Part of Edwards' problem comes from the fact that civil unions are mere legal constructs. There's something fake about them, but judges and politicians expect us to ignore this. What most people miss, however, is that any decision on the scope marriage by governmental types would be just as artificial.

If we want legitimacy for labeling a subset of both hetero- and homosexual relationships "marriage," the government is not the place to get it. But so long as we let them have a monopoly on the issue, we have a problem. The solution, therefore, as in all such situations, is a competitive market.

The question is whether something more meaningful than the current group of suits and robes in Washington can be found to legitimize any of our relationships. Though politicians think they speak for the ultimate authority, the People, those on the losing side of every election know better. Government cannot deliver what we want, so we should take our business elsewhere.

We Americans are rugged individualists, yes? Why, then, would we want to rely on the authorities to decide whether we are married? If we find it necessary to look to an institution for legitimacy, we should at least find one that delivers (given the entire marketplace of respectable organizations to choose from).

And if it is necessary to give legal consequences to the relationships into which we enter, then politicians can create legal substitutes. If we want to be married, we find a church that will marry us. If we want a tax break on property transfers, we sign up for a domestic partnership. But we don't expect the latter to say anything about whether our marriage is real.

The solution we have proposed for Edwards is not so farfetched. My wife and I recently succeeded (essentially) in living it out. Holding our "civil ceremony" in a Maryland court, we waited two days before having our true wedding at a church in Delaware. In one place we were given a license which might come in handy down the road. (We would rather it didn't say "Marriage" at the top, but they wouldn't change it just for us.) In the other we were given the legitimacy for which we, our family, and friends were looking.

To the nonreligious among us, however, the whole debate may seem a bit bizarre. After all, atheists and agnostics get happily married without appeal to any church whatsoever. Marriage need not be a religious issue, and therefore — constitutionally speaking — need not be taken back from the politicians.

But those who do not depend on a religious institution likely do not need a government to tell them who is their husband or wife either. They are rugged individualists like the rest of us, and as such should find it offensive that the authorities would tell us to whom we can and cannot be married.

This doesn't mean those authorities can't be useful. We just might have to negotiate with them by signing some of their documents. Remembering that what we get in return is not a marriage, however, but some legal guarantees, will keep us from compromising our values. A marriage is what we make and live, not what Uncle Sam's underlings dole out.

The "personal conflict" that Edwards experiences over this issue is nothing to be sneezed at. It reveals a fundamental challenge to our democracy regarding where the wall between Church and State should fall. Since no one has adequately answered this question, the boundary becomes a fault line, constantly in motion.

We are unashamedly taking advantage of this fluidity to propose a new shift. Whether it seems an expansion of religious or individual liberty depends on how we look at it. In essence it is a limitation of governmental power.

We do not mean that the government can't have any role in this part of life, even if we wanted to involve them. The civil union, after all, can be a useful legal construct if it is acknowledged for what it is: a means of getting the State to guarantee that you and your partner will carry out (or at least not be kept from carrying out) certain actions. In this role it could be made available to all pairs of persons able to make the legal commitments entailed, and "civil marriage" would become pointless.

But before thinking we must involve the government in this way, we should remember that we don't ask them for permission to call someone our fiancé, girlfriend, lover, etc. We're capable of judging for ourselves who does and does not deserve these titles. However it plays out legally, then, it is time we start looking somewhere other than the State to find out who is our wife or husband. ESR


A transcript of the debate from which the Edwards and Kucinich quotations come can be found at: http://www.cnn.com/2007/POLITICS/07/23/debate.transcript/index.html

The Human Rights Campaign (http://hrc.org) has reportedly counted 1,138 rights and responsibilities which civil unions must cover if, as I propose, they were to replace legal marriages.

Micah Tillman is an Instructor and Ph.D. Candidate in Philosophy at The Catholic University of America in Washington, DC. He has a B.A. in Computer Science and an M.A. in Philosophy. He can be reached via e-mail micahtillman@yahoo.com.


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