When I was quite young, my entire image of marriage was filtered through the bible of Bride Magazine. I thought about how lovely I would look in white tulle, and about the kind of love that could turn frogs into princes and pumpkins into coaches. My head spun with romantic images, as well as religious ones, cobbled from one part Jane Austen, one part “Colored Francie”–the first black Barbie Doll–and five parts earnest prayer that I would one day end up at an altar vowing eternal fealty to someone with just a quarter of Paul McCartney’s manly virtues. It was a bit of a lead balloon as fantasies go, weighted down with enough political confusion to spell doom for all actual suitors.
Years later, I went to law school and realized that there was a parallel universe. Here, there was also something called marriage, but it was first and foremost a subspecies of contract. In this decidedly unfrilly model, the marriage bureau acts as a kind of repository where individuals formally register their intentions regarding the sharing of private wealth, responsibility in case of emergencies or death, and the distribution of any public benefits for which they may be eligible. If a “will” disposes of property after death, marriage in the eyes of the state was a kind of contract that assigned the benefits of the same estate during life. Indeed, the litigation that made it into our textbooks almost always involved spouses with sufficient resources to fight over.
It was simple and unadorned when you thought about it like that. 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 the 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.” The general health, safety and welfare of the population is certainly something that the state has a legitimate interest in–but when legislators have tried to regulate morals through marriage laws, they have sometimes built in unwarranted presumptions about fitness, often based on religious notions. We need child welfare laws to protect minors, for example, regardless of the marital status or sexual orientation of their parents. And a woman’s right to vote, contract, or dispose of her own property was once legally subordinated to that of her husband, based on the justification that God made man the provider.
Similarly, antimiscegenation laws prohibited blacks and whites from intermarrying for fear of degrading the general welfare. A dissent in a 1948 case overruling California’s antimiscegenation laws argued that there was “a great deal of evidence to support the legislative determination…that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power.” Although a dissent, it was language specifically cited in 1959 by Bush-appointee Judge Charles Pickering for its “vigor” and persuasive value when endorsing the validity of a Mississippi statute making it a felony for interracial couples to live as husband and wife or otherwise engage in “adultery or fornication.”
In 2001, however, Judge Pickering testified that “who one marries is a personal choice and there should be no legislation on that.” If this is a true statement of principle, then we should all look forward to Pickering’s applying that standard in the first gay marriage case that comes before him. 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. (I have never quite understood why the sanctity of heterosexual marriage should make Pamela Anderson or Courtney Love presumptively better parents than J. and V., two female students of mine who met in my class years ago, who’ve been together as a couple for more than seventeen years, who’ve raised a nice, law-abiding son and who recently sent me a very nice photo of themselves getting married in San Francisco.)
Similarly, national debates about single motherhood have by and large not assisted those who raise children by themselves and against the odds, but rather only served to demonize. Shortly after I’d adopted my son, I remember debating a man from the Christian Coalition who would not shake my hand because I had “made a mockery” of fatherhood by choosing to become a single parent–he would only greet those from “two-parent households.” He was a religious ideologue, and I accept that. But the state governs us all; it really cannot legislate whether one is fortunate enough to find love or with whom. Indeed, the Bush Administration’s recent proposals to “encourage” marriage strike me as just west of absurd.
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–although, alas, not Judge Pickering. When this issue rises to the level of constitutional amendment, we tie the hand of the judiciary as a whole. And when our debate begins to echo with calls for practices that “all the major religions have shared for thousands of years,” as one hears so often recently, then we must wonder if we are ready to dust off the Scarlet A, or deliver the family manse to the eldest boy, or prohibit the sale of contraception, or marry widows off to their brothers-in-law. It’s a course inconsistent with the separation of church and state. It is a violation of civil rights that did not start–and will not stop–with the demonization of gays.