In the impassioned debate of whether same sex couples should be allowed to marry, there is a big push in California for the Protect Marriage Act. It would amend the state constitution to clarify that a marriage is between a man and woman. Both sides of this bitter fight are misconstruing the reality. Why do people, whether gay or straight, need the approval of the state to marry?
Marriage was always a religious function until the Lord Earl of Hardwicke’s Marriage Act of 1754 which began the unruly regulatory mess we are in today. Meanwhile, in the New England colonies justices and magistrates were performing marriages imposed under British rule.
Beginning in the mid-20th century, government began to get out of the business of deciding who could and should marry. Courts struck down laws prohibiting interracial marriage. They even protected the marriage rights of prisoners. Yet, with all this improvement there is still one group that is continually denied the opportunity of marriage: homosexuals.
The free-market solution is simple yet extremely effective in fixing this bitter battle. Privatize marriage. Businesspeople have long been able to form any sort of partnership they felt appropriate to their needs. Why not make the same guidelines applicable to marriage, which is a partnership based on one of the oldest types of contractual relationships.
With this arrangement, the gay-marriage problem is solved by the state granting equal benefits and legal protections to couples of any type. In these new formal contracts, it can be explicitly indicated what roles the members in the house will perform such as the classic breadwinner/homemaker setup. Couples in the non conventional sense can keep assets separated yet agree to divvy up what they both deem fair in the event of divorce.
Churches, synagogues, and temples can maintain their control on what marriages they would approve and bless. If it’s preferred to just be married in front of family and friends then that’s okay too. Freedom of choice and freedom of contract go hand in hand (pun not intended) when one wants to create equality in the institution of marriage.
Marriage is vital to the health of our country. It has the intrinsic value to build strong families and communities through civil society. This proposal is best understood through a well known idea in the First Amendment; the separation of church and state.
