Why Equal Marriage Needs to Be Legalized, Even if You Don't Think Government Should Have A Role in Marriage
This is an update of a post I wrote here.
One question that keeps coming up, both from libertarians as well as others, is why should government define marriage at all? Can't anyone get married in any kind of private ceremony?
My response is that yes, in some sort of libertarian small-government world, the state would be irrelevant -- what I used to call separation of marriage and state.
But it turns out that the state is already deeply involved in marriage. The explicit state licensing of marriage already exists, and our laws in Arizona for this licensing are unequal -- some couples get access to this state license, and some cannot.
What makes this important is that marriage is embedded in hundreds, even thousands, of laws. I searched the Arizona Revised Statutes for mentions of the words "spouse" or "spouses". These words are used 1133 times in 373 different statutes! The Our America team told me they counted over a thousand references in Federal code. In other words, our law codes give -- in thousands of instances -- specific rights, responsibilities, and privileges to married couples who have access to a state-granted marriage license. Those left out of the current unequal definition of marriage face any number of challenges imposed on them by these specifics of spousal rights and privileges embedded in our law code. I call this the non-marriage penalty.
There is no way to rip all these references to marriage out of the law and tax code. Likewise, there is no way to create an equable marriage alternative such as a civil union -- to do so, we would have to go through and rewrite 373 statutes to incorporate this terminology. The fairest solution -- the one that most respects individual freedoms -- is to accept that such government licensing of marriage exists and then make it as open and as equal and as fair and as accessible as we possibly can.