The Other Side of the Marriage Argument

In the 2012 election, three states voted successfully to broaden the definition of marriage to include two members of the same sex.  In addition to Maine, Maryland, and the state of Washington passing referenda permitting gay marriage, Minnesota repealed by referendum a previous restriction against it.

With the Supreme Court deciding this week whether or not to hear arguments at the federal level on the constitutionality of such unions, arguments for and against same-sex marriage are sure to rear their boisterous heads again.

But while some opponents of "marriage equality" will certainly use the parallel argument of the slippery slope -- which, on principle alone, could potentially further broaden the definition of marriage to legalize polygamy and incest -- few have considered the implications of the reverse side of the argument.

The central question to the argument is whether or not the 14th Amendment's "equal protection" clause prohibits states from defining marriage -- as recognized by the state -- as between one man and one woman, since such a definition would restrict certain persons from pursuing such a contract with the objects of their affection.  More popularly, the question is posed as "Why can't two people who love each other get married if they want to?"

If the Supreme Court rules that the 14th Amendment denies the sovereign states the ability to determine who enters into state-recognized marriages, eventually the same question on the matter of divorce must be raised.

Currently, states are all over the place on conditions of divorce.  While all fifty states (and Washington, D.C.) now have no-fault divorce allowances for two consenting adults, some states still require separation periods before a marriage can be dissolved.  Most states have residency requirements.  Nearly all have some sort of combination of these restrictions.

If the question on same-sex marriage is "Can the states restrict who may and may not enter into matrimony?," and that question is answered in the negative, the question must also eventually be asked: "Can the states place conditions on who may and may not dissolve the contract of marriage?"

On the "marriage benefit" side of the question, what right does the state have in keeping one spouse (same- or opposite-sex) as a legal beneficiary to the other when the other has no such desire keep the one?  Why should Spouse A have authority by default to make medical decisions for Spouse B, even when they are entering a period of separation?

Is there "equal protection of the laws" if Couple A in Washington may marry and divorce in the same month with no preconditions, while Couple B in New Jersey must endure 18 months of separation in order to receive a divorce decree?

The answer, of course, is no.  (That is, if the court determines that the contractual engagements of a partnership -- like, ahem, in a corporation[!] -- are included among the fundaments of life, liberty, and property.)  If the state must accept the contractual agreement between two consenting adults on the contractors' terms, so they must also accept the dissolution of marriage on the contractors' terms.  Of course, this means that states would be prohibited from imposing waiting periods or other preconditions on divorce decrees.  It would not be the state's place to determine whether or not the dissolution of a contract is warranted -- so long as two consenting adults are in agreement.  The state -- both in marriage and divorce -- would no longer be a contractual party; it would simply be the notary.

Some may welcome this as progress: "Who are you to say whether or not two people who don't love each other may live happily divorced?"

But the logical conclusion of such a line of argument is, ultimately, that the state will have absolutely no business in the contract of marriage.

If the terms of modern matrimony (namely, "two consenting adults who love each other") may be defined exclusively by the contractors, the state must be forced to accept that they have no right to encourage or discourage any form of matrimony.  Therefore, the state will have no business providing tax incentives for marriage, as this is not an equal protection of property for those who will not or cannot seek matrimonial contracts.  Medical decisions will be determined by an individual's power of attorney, not by the default of being a legal partner.  Survivor benefits will be determined solely by wills and bequests, not by spousal fidelity.

Of course, if we have conclusively proven that terms of divorce are not the state's business, then it is also not their business to determine "mutual consent."  We must then accept, then, that one party may without delay receive a decree of divorce without the other party's consent.  "I am not happy in this relationship -- who are you to tell me to find cause, or convince my partner, to dissolve the offending contract?"  Perhaps the other spouse may sue for breach of contract, but his or her suit -- just as in business -- could never force one partner to remain.

In other words, a spouse will be legally reduced, in the very least, to nothing more than a "best friend"; at the most, a marriage will still be as capricious as a business partnership.  Person A may treat Person B as a spouse, but it would not be the state's business even to recognize -- much less sanction -- the sentiment of the relationship.  It is the partners' business, and their business alone, if and for how long they decide to perpetuate the relationship.  Marriage will be the handshake of exclusive parties, rather than a union of two into one under the supervision of a higher authority.

In a word, what was once the liberty of pursuing sacred contracts will eventually be nothing more than a licentious pursuit of sensual connections.

If the advocates of broadening the definition of state-sanctioned marriage get their wish, the definition might become so broad as to render the term devoid of a tangible benefit and meaninglessly relative.  That is, except to those who might still consider their vows of marriage to God greater than their obeisance to the state.

Andrew Schwartz is a writer at BearingDrift.com and a historian out of Old Dominion University, focusing on early American political, legal, and intellectual history.

In the 2012 election, three states voted successfully to broaden the definition of marriage to include two members of the same sex.  In addition to Maine, Maryland, and the state of Washington passing referenda permitting gay marriage, Minnesota repealed by referendum a previous restriction against it.

With the Supreme Court deciding this week whether or not to hear arguments at the federal level on the constitutionality of such unions, arguments for and against same-sex marriage are sure to rear their boisterous heads again.

But while some opponents of "marriage equality" will certainly use the parallel argument of the slippery slope -- which, on principle alone, could potentially further broaden the definition of marriage to legalize polygamy and incest -- few have considered the implications of the reverse side of the argument.

The central question to the argument is whether or not the 14th Amendment's "equal protection" clause prohibits states from defining marriage -- as recognized by the state -- as between one man and one woman, since such a definition would restrict certain persons from pursuing such a contract with the objects of their affection.  More popularly, the question is posed as "Why can't two people who love each other get married if they want to?"

If the Supreme Court rules that the 14th Amendment denies the sovereign states the ability to determine who enters into state-recognized marriages, eventually the same question on the matter of divorce must be raised.

Currently, states are all over the place on conditions of divorce.  While all fifty states (and Washington, D.C.) now have no-fault divorce allowances for two consenting adults, some states still require separation periods before a marriage can be dissolved.  Most states have residency requirements.  Nearly all have some sort of combination of these restrictions.

If the question on same-sex marriage is "Can the states restrict who may and may not enter into matrimony?," and that question is answered in the negative, the question must also eventually be asked: "Can the states place conditions on who may and may not dissolve the contract of marriage?"

On the "marriage benefit" side of the question, what right does the state have in keeping one spouse (same- or opposite-sex) as a legal beneficiary to the other when the other has no such desire keep the one?  Why should Spouse A have authority by default to make medical decisions for Spouse B, even when they are entering a period of separation?

Is there "equal protection of the laws" if Couple A in Washington may marry and divorce in the same month with no preconditions, while Couple B in New Jersey must endure 18 months of separation in order to receive a divorce decree?

The answer, of course, is no.  (That is, if the court determines that the contractual engagements of a partnership -- like, ahem, in a corporation[!] -- are included among the fundaments of life, liberty, and property.)  If the state must accept the contractual agreement between two consenting adults on the contractors' terms, so they must also accept the dissolution of marriage on the contractors' terms.  Of course, this means that states would be prohibited from imposing waiting periods or other preconditions on divorce decrees.  It would not be the state's place to determine whether or not the dissolution of a contract is warranted -- so long as two consenting adults are in agreement.  The state -- both in marriage and divorce -- would no longer be a contractual party; it would simply be the notary.

Some may welcome this as progress: "Who are you to say whether or not two people who don't love each other may live happily divorced?"

But the logical conclusion of such a line of argument is, ultimately, that the state will have absolutely no business in the contract of marriage.

If the terms of modern matrimony (namely, "two consenting adults who love each other") may be defined exclusively by the contractors, the state must be forced to accept that they have no right to encourage or discourage any form of matrimony.  Therefore, the state will have no business providing tax incentives for marriage, as this is not an equal protection of property for those who will not or cannot seek matrimonial contracts.  Medical decisions will be determined by an individual's power of attorney, not by the default of being a legal partner.  Survivor benefits will be determined solely by wills and bequests, not by spousal fidelity.

Of course, if we have conclusively proven that terms of divorce are not the state's business, then it is also not their business to determine "mutual consent."  We must then accept, then, that one party may without delay receive a decree of divorce without the other party's consent.  "I am not happy in this relationship -- who are you to tell me to find cause, or convince my partner, to dissolve the offending contract?"  Perhaps the other spouse may sue for breach of contract, but his or her suit -- just as in business -- could never force one partner to remain.

In other words, a spouse will be legally reduced, in the very least, to nothing more than a "best friend"; at the most, a marriage will still be as capricious as a business partnership.  Person A may treat Person B as a spouse, but it would not be the state's business even to recognize -- much less sanction -- the sentiment of the relationship.  It is the partners' business, and their business alone, if and for how long they decide to perpetuate the relationship.  Marriage will be the handshake of exclusive parties, rather than a union of two into one under the supervision of a higher authority.

In a word, what was once the liberty of pursuing sacred contracts will eventually be nothing more than a licentious pursuit of sensual connections.

If the advocates of broadening the definition of state-sanctioned marriage get their wish, the definition might become so broad as to render the term devoid of a tangible benefit and meaninglessly relative.  That is, except to those who might still consider their vows of marriage to God greater than their obeisance to the state.

Andrew Schwartz is a writer at BearingDrift.com and a historian out of Old Dominion University, focusing on early American political, legal, and intellectual history.

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