Ditching the M-Word
BY ANNA SCHWARTZ
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Mayor Gavin Newsom of San Francisco made a
bold move last January when he allowed gays to marry
in San Francisco City Hall. A bold move, for certain,
but perhaps not the brightest for pro-gay-marriage
strategists: Newsom’s efforts, along with those of gay-marriage
advocates in Massachusetts and elsewhere,
were met in November by a furious backlash. In all 11
states where gay marriage was on the ballot, voters
approved constitutional bans on gay marriage, some by
double-digit margins. Gay marriage is now trapped in
the crossroads of the culture wars.
However, this Gordian knot can be cut cleanly:
remove the state from the business of marriage, allow
individuals to freely contract with each other, make
the government treat all contracts equally, and leave
further blessings over “marriages” in the hands of religious
institutions.
TAKING THE POLITICS OUT OF MARRIAGE
The privatization of marriage, as proposed by David
Boaz, is an elegant solution to the gay-marriage problem.
Allow individuals to contract with one another, with religious
institutions legitimizing
the contracts as they see
fit, and have the state treat
all contracts equally.
Marriage privatization,
which amounts to the
separation of love and state,
would equalize gay and
straight marriage without
implying government
approval of the former—which, for whatever reasons of
loathing, misinformation, or traditionalism seems to be
a political dead end.
Marriage did not become the province of the state
until England passed the Earl of Hardwick’s Marriage
Act in 1754. Until then, marriage was purely a religious
institution. Boaz and others argue that we should turn
back the clock; the sanctioning of marriage should not
be under the aegis of state power, and we should consider
marriage as a contract between two people. Instead of
a one-size-fits-all conception of marriage, marriage
should be a contract tailored by and for individual parties.
Whatever type of contract a religious community
wants to sanction would be left up to that community.
With this arrangement, the gay-marriage controversy
would end.
One objection is that the state does not want to get
out of the business of marriage. One-size-fits-all
marriage rights create uniformity in many other rights
that are administered by the state: inheritance rights,
visitation rights at hospitals, etc.
Marriages, like titles to property, must now be registered.
The state benefits from the registry, but how does
it benefit from its control of marriage? The abovementioned
legal and administrative functions can be
accomplished just as well if marriage contracts, like all
contracts, continue to be registered with the state; but if,
as with other contracts, it’s up to the parties involved to
establish the particulars, such as inheritance and other
arrangements.
The other objection may, curiously, come from gay-marriage
advocates. Viewing themselves as heirs of the
civil rights movement, they often want public affirmation
that gay marriage is legitimate, as part of their
desire for public affirmation of the legitimacy of homosexuality.
In effect, that is the view of marriage framed
by Massachusetts Chief Justice Margaret Marshall in
Goodridge v. Department of Public Health, the decision that
legalized gay marriage in the Bay State: marriage for gays
should be viewed as analogous
to civil rights for
African Americans. In short,
there is a fundamental equalprotection
right to marriage.
But the current alignment
of votes on the
Supreme Court will probably
not permit this type of argument
to be heard, let alone
vindicated. Going before the Supreme Court and arguing
on the grounds of equal protection might be the
worst thing for gay-marriage advocates to do, since a
negative Court decision would be binding on everyone.
Perhaps, then, gay-marriage advocates should stop
using the m-word and start talking contracts. Adopting
the language and conceptual framework of contracts is
the first step toward privatization, and thus toward the
end of a controversy that apparently and needlessly
threatens the values of many, many straights. But the
social peace that comes from depoliticizing marriage
may not satisfy gay-rights activists. They may care more
about the glory of a political struggle than either its likely
outcome or the casualties incurred along the way.
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Anna Schwartz is a 1-L at Harvard Law School.. |
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