Let's fight some more over marriage -- or not

On the morning of Wednesday, November 12, State Rep. Beth Bye and her partner, Tracey Wilson, made history as the first same-sex couple to marry in Connecticut. Their happy day came not much more than a month after the Connecticut Supreme Court ruled that "same sex couples cannot be denied the freedom to marry." That's a happy development. But freedom of marriage in the future may come to depend on ending marriage entirely -- as a state institution that is.

Bye and Wilson were quickly followed by other gay and lesbian couples eager to formalize their own relationships in only one of two states -- the other is Massachusetts -- that permit same-sex marriages.

But there's no doubt that a shadow was cast across the festivities by last week's ballot victories in Arizona, California and Florida for state constitutional amendments intended to bar recognition of exactly the sort of marriages solemnized in Connecticut. Even as courts have been willing to rule in favor of granting equality before the law to same-sex relationships, majorities of voters have flocked to the polls to voice a very contrary opinion.

This leaves gay and lesbian couples, as well as civil liberties advocates, in something of a quandary.

The courts may still provide recourse for advocates of same-sex marriage. Article IV, Section I of the United States Constitution says:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Some legal scholars interpret those words to mean that marriages performed in one state must be recognized in all other states. In a 2005 law journal article, Professor Joseph William Singer of Harvard Law School wrote, "the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the 'effects thereof' language of the full faith and credit clause."

If his argument prevails, Connecticut and Massachusetts may enjoy a booming get-away business as gay and lesbian couples from around the country flock to New England for wedding ceremonies that must be recognized as perfectly valid back home.

And his argument may well prevail. When the Supreme Court did away with sodomy laws in the Lawrence v. Texas decision, Justice Antonin Scalia objected in his dissent:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.?

Scalia may disapprove, but he agrees that court decisions of the past have set the stage for recognition of gay marriage in the future.

But ... There are those majority votes against gay marriage in states including California of all places. Majorities capable of passing state constitutional amendments banning gay marriage may well be capable of sparking a federal constitutional battle that might even culminate in an amendment to the U.S. Constitution. A favorable Supreme Court decision in a year or two might well turn into yet another culture war that produces a very unfavorable legal environment thereafter.

What to do? Well, how about taking marriage entirely off the table as a legal issue?

In the New York Times, last year, Professor Stephanie Coontz of Evergreen State College wrote:

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

That may provide a road map to an approach for defusing the passionate battle over same-sex marriage, involving as it does deeply emotional issues of religion and personal life. Why not take marriage out of the hands of government and turn it into a purely private matter among people who love each other, their families, their friends, and whatever religious institutions to which they might belong?

Writing in Slate in 1997, the Cato Institute's David Boaz said of marriage:

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

As a private institution, marriage would no longer need to be a matter of public debate. The legal aspects of marriage, such as inheritance and child custody could be handled by simply filing a simple civil union form with the state that has no romantic connotations. It could as easily involve friends or relatives who want to share assets or ease child care. Such arrangements could be boilerplate or tailored-to-fit, as the parties prefer.

And people with deeply held beliefs about what marriage really means could join religious institutions that extend their recognition only to traditional arrangements. They'd be free to turn up their noses at anything else, without actually compromising non-traditional marriages made by others.

Not everybody would be made happy by a solution that doesn't involve cramming a victory down the other side's throat. But privatized marriage could bypass years of legal battles and heartache.

If marriage had been privatized a decade ago, social conservatives would today be free to roll their eyes at Beth Bye's and Tracey Wilson's long-ago formalized relationship.

And we could find something else to fight about.

OK, that's enough serious. Here's Doug Stanhope with a less snooze-inducing take on the same topic: