Abstract

Wedlockstep

The author comments on the debate over same-sex marriage from a legal perspective. The essence of all contract law is to provide a way of allowing people to privately order their lives and for the state to remain outside the maelstrom of emotions that would be involved if there were no expectations about who gets what when two individuals and their families hitch their fates to the same pool of property. A marriage license is a way of saying that one's spouse and/or the children will inherit rather than having the kind of disorder that would ensue if a random judge were always to split the goodies among nearest and not so dearest. Given the straightforwardness of this structure, I see no reason that gays, elderly or friends shouldn't be able to "marry" in the eyes of the state, as long as tile parties are of sufficient rationality and age to consent. To be sure, I'm being a bit facile. Marriage has also long been infused with the notion of "welfare." In current debates about gay marriage, however, one hears a great deal about its incompatibility with general welfare, and how children have "rights" to both a father and a mother. The current national debate about the nature of marriage is, of course, the latest manifestation of a Puritan anxiety about sex and God's punishment and the "natural" order of things. But it is also about the role of courts and "activist" judges.