Last Friday, Federal Judge Robert Shelby ruled that Utah's Amendment 3, defining marriage as between "one man and one woman" is unconstitutional, opening the gates for same sex marriages in Utah. Shelby and the 10th Circuit Court of Appeals denied stays on the ruling, leaving the US Supreme Court as the only, and unlikely, avenue left to halt same gender marriages. Shelby's ruling specifically found that the state had failed to show that any harm would come to the state or to the heterosexual majority by allowing same gender couples to enjoy the legal benefits of marriage.
The preceding Friday, Federal Judge Clark Waddoups ruled that the Utah polygamy statute could only apply to poly-amorous families that sought to obtain more than one marriage license, essentially saying that the state cannot regulate how, or whether, people choosing to live in such arrangements cohabit.
As I have read the news articles and the associated comments, I have come to see the arguments delving into multiple areas in which marriage is defined. Or at least, contexts in which it is viewed. These contexts overlap and cause confusion, and this confusion is amplified by misunderstanding across the contextual boundaries and the deliberate blurring of these boundaries through history and in the present day. Still more confusion is created by cultural differences between different segments of our society.
Marriage can be viewed in a legal context, an economic context, a social context, a historical context, a religious/spiritual context, an emotional context, and a sexual context, and maybe more still. Ideas of marriage vary within each context, there is not even a consensus among Christians within the religious/spiritual context. Historical views are distorted, and revisionism abounds, within other contexts, making any historical analysis difficult. Confusion is especially rampant in the religious/spiritual, social, and emotional contexts.
The legal and economic contexts are somewhat unsettled as well. Marriage law concerning procreation and rearing of children and duties of support don't seem to be working very well. Twenty-nine percent of all marriages to women between 15 and 44 end in divorce within 10 years, and extrapolating from that forecasts that 43% will fail by year 15, and half over a life time. The rate at which people get married has dropped from about 8 per 1000 to about 3.4 per 1000 over the last decade. Nearly half of children born in the US are to unwed mothers. Only 42% of custodial mothers and 34.1% of custodial fathers receive all of their ordered child support; while only 72.9% of custodial mothers and 72.9% of custodial fathers receive some of their ordered support. 1.7 million adoptions generate a $14.2 billion adoption industry; many of these children from parents who cannot, or will not, raise them. Arguments that marriage protects children cannot compel in light of such trends.
When viewed solely from the economic context with concerns of rights of inheritance, shared property, or inclusion on health insurance policies, issues of gender, sexuality or plurality are irrelevant. If marriage is to be viewed as a contract between parties for mutual support or economic benefit, and such contracts engender certain rights and benefits, then denial of those rights based on membership in a specific group should not cause the denial of those rights or benefits. We cannot say to a landlord that he can only accept female tenants because he is male. How then can we tell the same man he can only enter into a contract that creates an insurable interest with a female simply because he is male without showing that there would be significant harm to society. If we are to view "marriage" as a contract, perhaps it should be just that, a written document specifying what the terms, conditions and expectations are between the parties, and who the parties are.
Moral repugnance of particular practices is not, by itself, sufficient to show harm. The current debates center on homosexuality and polygamy. Those opposed to same gender marriage find homosexuality repugnant; those opposed to polygamy find plural marriage repugnant. In both cases, the disdain comes from implied sexuality and sexual conduct. Many of these same people also find inter-racial marriage, interfaith marriage, and non-marital sexual relations repugnant, but their views cannot be the basis of laws that would prohibit such practices. Some find views of Biblical Patriarchal marriage, in which the man "has dominion" over his wife, repugnant, while others are repulsed by the idea of Christian egalitarian marriage, in which both parties are equal. Some folks continue believe in white supremacy and find racial integration repugnant, while others believe racial integration hasn't progressed far enough. Catholics find Protestantism repugnant,while Southern Baptists find Mormonism repugnant, and Mormons hold that all other religions are "abominations before God." Which of these views should be the basis of law?
There are two conclusions that I draw from this mess:
First, that views on what marriage is and what it should be in contexts other than the legal and economic are diverse and complex; there is little likelihood that there will ever be a consensus, regardless of context.
Second, that the legal purpose of marriage is likely obsolete: it doesn't protect children any more or ensure their support, and the other economic purposes of marriage can as easily be handled by contract law or other legal forms.
Perhaps it is time for the state to get out of the business of issuing marriage licenses and start drafting legislation that directly addresses the issues that marriage is supposed to deal with.
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