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Wednesday, 16 May 2012 12:56

Privatizing marriage would settle issue

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To the Editor:

Statistics claim that the purpose of licensure laws is to protect people and produce quality results. They would say that through licensing, states can guarantee that whether you are educating your children, insuring your life, or getting a haircut you can be assured that the provider of those services has been through a state sanctioned training program and thus will render services with at least a minimal standard of performance required to ensure the health and vitality of society.

But what about marriage licenses? Are they intended to guarantee a minimal quality of family life? Apparently they were first intended to do just that. In the United States, by the early 1920s, marriage license laws in at least 38 states made it a crime for whites to marry blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. It doesn’t make it right and these laws seem totally reprehensible to us today, but they did reflect the social mores of that time period.

So, what does it say about our time period that voters are still supporting similarly repugnant laws? I speak of course about the voters of North Carolina recent approval of an amendment to the state constitution making anything other than a union between one man and one woman an invalid relationship under state law. The amendment passed with the support of 61 percent of the electorate! What’s worse is that North Carolina became the 30th state to amend its constitution to prohibit marriage between same-sex couples.

Whatever happened to the principle that constitutions are meant to limit the scope of government and protect individual rights? It apparently has been thrown out the window, into the street, and run over by traffic time and time again just like other time tested principles of constitutionalism.

And like all laws dealing with personal matters, the number of unintended consequences once this law goes into effect will be huge. An ACLU analysis of the new constitutional mandate indicates that domestic violence laws could be undermined for folks in unmarried relationships; parents that aren’t married to each other could no longer have the same child custody and visitation rights as married parents; end-of-life arrangements like wills could be altered; and lastly, agreements between unmarried life partners could be determined null and void.

In the final analysis, government has no right being in the business of determining who can marry whom. We are talking about private relationships between consenting adults.  It has no more right to interfere in this area of life than it does to tell people where they can live within the country or how many children they can have.  

When you think about it, 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 those companies 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, licensing laws are a means for government to control society. Within the institution of marriage they have been/are being used to place value on one kind of relationship over another. They are anti-democratic, intolerant, and infringe upon the liberty of individuals. By making marriage a totally private endeavor, a political issue that divides our country would be eliminated. This would free up time and resources to confront the really important issues facing America – war, the devalued dollar, and the erosion of our civil rights. People would be free to live as the Founders intended and the age of bigotry with regard to marriage could finally end.  

Kenn Jacobine teaches internationally and maintains a summer residence in Western North Carolina

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