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In a recent interview with News 9 in Oklahoma City, state representative Mike Turner said, “[My constituents are] willing to have that discussion about whether marriage needs to be regulated by the state at all.”
When I heard that quote in isolation, I jumped up, wondering if a lawmaker was actually considering something I’ve been calling for but never thought would see the light of day in a capitol building.
The state of Oklahoma is in the midst of its own battle over the issue of gay marriage. On January 14, U.S. District Judge Terence Kern struck down Oklahoma’s ban. Kern wrote that Oklahoma’s gay couples are being denied state recognition and benefits “without a legally sufficient justification.”
In response, and pending an appeal, Rep. Mike Turner (R) has introduced a “shell bill” that contains the idea of ending legal recognition of ALL marriages in Oklahoma, not just same-sex ones.
Such a move, which Turner claims would have bipartisan support in the legislature, would also seemingly have bipartisan opposition. Bloggers of multiple political persuasions are balking at the idea, and news anchors have had trouble reporting the story with a straight face. To be sure, there’s reason to doubt that Turner has benevolent intentions with this contemplated move. As some bloggers have pointed out, it has eerily similar overtones with the reactions of some private and public entities during the civil rights era, opting to shut something down to avoid integrating.
But a small minority, myself included, are saying, “Pay attention.” Although this piece of legislation would face insurmountable hurdles and legal/logistical nightmares, the more basic idea of getting government out of the marriage business altogether is not a totally new concept and something I’ve supported for years.
What I advocate here is related to but different from the idea of marriage privatization, a political philosophy advocated by pundits, scholars, and law experts of many stripes. Mike Turner’s bill is not even the first time it has come up politically, as Rep. Justin Amash of Michigan has discussed the idea before. The marriage privatization movement is largely characterized by the desire to scale back the role of the state to that of enforcing the terms of a civil contract rather than setting those terms.
My main concern, however, is that the deeply personal and spiritual nature of marriage is watered down, or even lost, when it is bound up with state regulated contracts. Indeed, the issue here is the word “marriage,” a word that I do not believe the government should be using. As things stand now, it’s a big messy entanglement of church and state, especially the practice of clergy signing state marriage licenses. In my ideal world, the state should simply grant contractual commitments to any legal, consenting adult pair that wants one. Couples who desire to exchange vows within a religious context can then do so, and the churches can simply exercise the right they already have to decide who can get married in their facilities and with their ministers.
Marriage is a religious word; a deeply spiritual concept that wades in the most profound realities of human life. Most supremely, it is about love. Agape love; love as commitment. When on earth did we ever get the idea that deciding who I can fall in love with and how I relate to that person is the concern of Uncle Sam rather than the Great I AM? Marriage should be returned to its rightful place in the spiritual realm and private sector. Even G. K. Chesterton came close to this kind of idea, once writing, “It may be said that this institution of the home is the one anarchist institution. That is to say, it is older than law, and stands outside the State.”
But it IS part of government’s role to regulate contracts and adjudicate disputes. The state could still offer the benefits that are currently tangled up with marriage (which may be missing from Rep. Turner’s idea. As a shell bill, it lacks content to discuss).
Ceasing government involvement in marriage as a relationship of love and commitment is not an idea we can immediately dismiss, because it represents the only win-win solution in the gay marriage debate. Those fighting to maintain traditional relationships get what they want because they get the word “marriage” back. Those fighting for equality get what they want because any consenting adult would be treated equally under the law, as our Constitution demands.
Equality under the law is not up for debate. As Justice Sullivan wrote in the majority opinion of Westbrook v. Mihaly, “Constitutional rights may not be infringed simply because the majority of the people choose that they be.” Thanks to church and state separation, churches can deny anybody virtually anything, including a wedding ceremony, based on their religious beliefs and policies. The state, however, must produce entirely different reasons, which is why it has been interesting to watch this fight play out in court. Lawyers for traditional marriage proponents know that they have to go to court with more than their Bible, so they’ve tried arguments related to historical precedent, child-rearing propriety, etc., which the courts have consistently dismissed.
Unfortunately, this idea faces some hurdles at best. Perhaps the largest is that the Supreme Court, in several cases that span a century, has already declared that marriage (using that word) is a fundamental right. For example, the majority in opinion in Skinner v. Oklahoma ex rel. Williamson (1942) states that marriage is “one of the basic civil rights of man.” Or again in Loving v. Virginia (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
There are other logistical and legal issues that I am not equipped to understand, and of course, the power of precedent would loom large here, to say the least. But what I do know is that the marriage debate has featured the unfortunate spectacle of many Christians talking about the sacred institution of marriage in a way that is devoid of substance or value. The only thing we seem to be saying is, “Marriage is between a man and a woman,” as if an opposite set of sexual organs is all you need for a healthy relationship. More than half of all heterosexual marriages end in a courtroom, so I’m pretty sure there’s more to it. We need to start talking about the “more to it” part, and we might need government to get out of the way.