Like many courts nationwide, the California Supreme Court legislated from the bench on Thursday.  In a 4-3 ruling, the Republican-dominated court (yes, a Republican dominated court making law), struck down state laws against same-sex marriage saying that civil unions which are allowed in California do not provide enough rights and benefits of marriage to same-sex partnerships.  The ruling is reminiscent of the U.S. Supreme Court’s 1954 law-making decision in Brown v. Board of Education of Topeka, Kansas, where the Court ruled that separate but equal schools for the nation’s black children were a nice attempt at equal opportunity, but not quite nice enough.  Of course, before the ink was even dry on the California high court’s decision, social conservative groups were planning to petition the U.S. Supreme Court to hear the case and propose a constitutional amendment to the California State Constitution outlawing same-sex marriages.  Seems to me that instead of questioning whether same-sex couples should be allowed to marry, the real question we should be asking is why the government is involved in the institution of marriage in the first place?

Social conservatives would argue that government needs to be in the business of protecting the sanctity of marriage between a man and a woman because society needs protection from deviant behavior.  In particular, children must be shielded from immoral conduct, lest the moral fabric of our society will deteriorate and American Civilization as we know it will crumble and fall.  They also would argue that marriage has always been between a man and a woman.  Look at the Bible for guidance on this one.  On those occasions where same-sex relationships took place, God sent his wrath not only upon the evil doers, but the whole society (see Sodom and Gomorrah) for letting it happen.  This is proof to many social conservatives that God abhors homosexuality and will destroy the society that sanctions it. 

First of all, homosexuality will not cause the downfall of American Civilization.  Unless we get things under control, the inflation of the welfare/warfare state will be responsible for that.  Secondly, there have always been homosexuals in the U.S.  Many homosexual couples live together and go out in public together.  How will allowing them to marry really change anything?  It is not like same-sex marriage will allow homosexuals to have sex in public.  Is it right to restrict the freedom of homosexuals because some people do not want their children to be exposed to their lifestyle?  In a free society, if parents are homophobic, they could move to shelter their children from homosexual behavior just like they could move to protect their kids from inferior schools or paroled child molesters.

As to the Biblical argument against same-sex marriages, most Americans do not interpret the Bible literally.  We are a pluralistic society with many different views on sexuality and morality.  If narrow religious beliefs were allowed to dictate policy in America, what would make the U.S. different from an Islamic republic?  If I believe drinking alcohol and smoking tobacco are immoral and want to safeguard my children from these practices, do I have the right to use government to restrict my next door neighbor’s right to partake of these substances in their own home?  It is the right of social conservatives to not indulge personally in practices they consider immoral, but it is not their right to use government force to restrict the choice of others.  

The bottom line is this:  the government has no right being in the business of determining who can marry whom.  Why do you need a license to marry, but not to have children?  Are children not a larger and more complicated responsibility because they are totally dependent on their parents, unlike spouses who are self-sustaining adults?  Like child rearing, marriage is a private matter and it should be privatized – it should be formed by a document similar to a business contract between the two individuals involved. The only time government involvement would be warranted would be when one of the marriage principles asked it to adjudicate the terms of the marriage contract. Private marriages would eliminate all of the political issues surrounding same-sex marriage – issues like whether other states must honor a same-sex marriage granted in another state (full faith and credit clause of the Constitution), divorce rights, dividing assets, child custody, and next of kin status.  All of these issues could be addressed in the marriage contract.  It is true that companies could deny workers the same benefits received by workers in a heterosexual marriage, but they would run the risk of losing top quality applicants to fill important positions.  Otherwise same-sex couples could bid for benefits outside of their employment and negotiate higher salaries to cover the additional costs. 

At the end of the day, making marriage a totally private endeavor would eliminate a political issue that divides our country.   It would also free up time and resources to confront the really important issues facing America – war, the devalued dollar, and the erosion of our civil rights.  Imagine a presidential election campaign this year where vital issues were honestly debated by the candidates instead of fringe issues pertaining to who should be allowed to love whom.    

Kenn Jacobine teaches History and English for the American International School of Lusaka, Zambia.  Send him email at lovesliberty@gmail.com.