As I mentioned in a previous post, a common argument against same-sex marriage is that the State licenses marriages as part of their interest in promoting procreation among its citizens. It was an argument tried in the Federal case of Perry v. Schwarzenegger. And as the argument goes, as same-sex couples cannot produce children (despite the availability of legal adoption, also routinely denied to homosexual couples), the State has no interest in licensing homosexual marriages. It is an argument loaded with a lot of problems. A common counter-argument often made is to raise the question of whether childless marriages should be nullified.
Recently I discovered an article that went into detail about this, but the response to the “childless couples objection” seems more like the writer was shooting from the hip, because he was making a lot of assumptions deriving from the false premise that States license marriages and provides benefits to married couples in an effort to encourage partnering up and procreating.
So let’s first examine this question: why do States license marriages? Here’s a hint (as if what I’ve already said isn’t a hint enough): it isn’t to encourage partnering up and procreating.
Almost universally across the United States, to have a marriage that is recognized by the government, you must first get the government’s permission to actually marry. This permission is declared in the form of the marriage license. For example, when I got married in December, we first had to obtain a marriage license from the county recorder’s office and pay a fee. It wasn’t always this way.
So how was it previously? To get a glimpse into history, we need to look at the several States that recognize what are known as “common-law marriages”.
A marriage at common law occurs when a couple, in short, live like they are married. By and large the main prerequisite for this is cohabitation, but the couple must also say they are married. If they explicitly deny the existence of a marriage, they cannot be said to be common-law married.
The Church, however, has had their hands on marriage for a long time. But churches also tended to accept a marriage as valid purely on the word of the parties involved: if the couple say they are married, the church also said they are married, regardless of whether a marriage was actually solemnized before a priest or minister. This is similar to today’s common-law marriages in many ways.
Then there’s the concept of the banns. Quoting Wikipedia:
The purpose of banns is to enable anyone to raise any canonical or civil legal impediment to the marriage, so as to prevent marriages that are invalid. Impediments vary between legal jurisdictions, but would normally include a pre-existing marriage that has been neither dissolved nor annulled, a vow of celibacy, lack of consent, or the couple’s being related within the prohibited degrees of kinship.
The banns wasn’t a legal requirement, but only a religious one. The Roman Catholic Church abolished the practice only in 1983, and the practice was typically associated with the Protestant denominations.
But where does licensing come into play? Licensing originated with the churches as well as a means of bypassing the banns requirement by paying a fee and having a certification by a Church official that the couple is able to marry.
In England marriage didn’t become part of the civil code until the 1753 with what is commonly known as “Lord Hardwicke’s Marriage Act” and was an effort to address clandestine marriages, which had been seen as a growing problem. The law, however, never applied outside England, meaning it never applied to the colonies that would become the United States of America.
And in the United States licensing was never a civil requirement… initially. That would change around the middle of the 19th century, around the time of the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States. What am I implying? Contrary to common assertion, marriage licensing in the United States wasn’t about promoting partnering up and procreating. It was actually about restricting that ability. Marriage licensing was initially about restricting marriage, with criminal penalties accompanying anyone who would dare defy those restrictions.
The marriage license gave the State a way to tell certain couples that they could not enter into a valid marriage. It wasn’t about allowing marriage or regulating it, and it certainly wasn’t about encouraging procreation among viable couples. It was about keeping the gene pool clean. Combine government monopoly on marriage through licensing, anti-miscegeny laws and the “one-drop rule”, and you’ve got a good, racist combination that had the intention of keeping the white gene pool as white as possible.
Licensing wasn’t about encouraging a certain kind of relationship. It was about restricting it. And many of those restrictions weren’t lifted until the Supreme Court put the next to last nail in the coffin of marriage restrictions in 1961 with the case Loving v. Virginia.
Now this isn’t to say that licensing doesn’t have its place. It certainly does, as it provides a valid, documented record that a marriage has been solemnized. If someone were to try to challenge the validity of my marriage, I can obtain a certified copy of my marriage license from the county in which the marriage was recorded as legal evidence that I am, indeed, legally married.
But these were benefits that were realized only after its original racist reasons for existence faded away and were largely forgotten. But these benefits are not about promoting procreation or even about promoting marriage. To the best of my knowledge there is no evidence that civil licensing of marriages encourages marriage in any way. Indeed today the opposite appears to be holding true as fewer couples are getting married each year, and those that do are waiting longer to do so. So where exactly is the encouragement?
The history behind marriage licensing in the United States essentially nullifies any argument that State involvement in marriage is about children. It isn’t. It never was to begin with. Not in the United States and not anywhere.
So let’s move on with the article. In it the author presents a “three-pronged” argument:
- States are involved to encourage procreation
- Marriage is “designed to be a burden” because the State wants couples to come and stay together to procreate
- Civil benefits afforded to married couples are to encourage them to stay together and procreate
The second and third points are merely elaborations on the first: States license marriage as a means of encouraging it so couples will pair up and procreate.
Again, the licensing and State involvement in marriage as a means of encouraging procreation is not true. Again licensing in the United States was never about promoting procreation, but only as a means of having legally-enforceable restrictions on marriage. So let’s move on to point number two of his “three-pronged” response:
Secondly, marriage is designed to be a burden. The State burdens a couple with legal and social obligations in exchange for certain privileges such as tax breaks and social approval. Why do this? Because they have an interest in keeping a couple together. Why might they be interested in keeping a couple together? Is it because they believe in enduring love? No, it is for the sake of children!
If marriage is designed to be a burden, it isn’t because of the State. Religion made marriage a burden. Religion got its mittens on marriage long… long… long before the government did. And society, heavily fueled by religion and religious indoctrination, provides the burden as well.
So this question needs to be asked: what legal and social obligations did the State impose upon couples that are married? There are none. The existence of the legal marriage I have to my wife burdens me with no more legal or social obligations than what existed prior to the marriage.
There are, however, plenty of legal privileges that exist because of that marriage, such as the tax breaks. And it is with tax breaks that the “encouragement” argument actually breaks down. Getting married entitles the couple to lesser taxes being taken from their paycheck, thereby putting more money into their pockets. Having a child reduces the tax burden even more. Now some could say that this is economic stimulus and that States encourage marriage and procreation to ensure future stimulus in the economy, but this doesn’t hold water.
First, children don’t become productive participants in the economy until they are legally capable of holding employment. Until then they are merely consuming wealth, not helping to create it. As such the reduced tax burden on the parents means only that the consumption of wealth is shifted from the government to the child or children they raise. And this reduced tax burden means that the government should not be encouraging procreation and marriage, as the government and those running it think only of themselves and the moment. The government is quite selfish, demanding and greedy when it comes to wealth.
Religion, on the other hand, has a huge vested interest in making couples and obligating them to one another till death do they part, with the wrath of God behind them. After all, more people meant more power by having more people to indoctrinate. And when marriage was the exclusive domain of religion, the procreation argument not only came into play, but enjoyed perfect validity. I wonder if the author is projecting some of what his church and religion desires onto the State, implying that what the State wants and what his religion wants are in essence identical.
And on to the third prong of his argument:
The benefits of marriage are not the State’s way of “rewarding” couples for their love or commitment to one another. The benefits that accompany marriage are provided to encourage the couple to stay together so that they will produce and rear children together.
He’s right that the State isn’t rewarding couples. But I have to disagree that the government benefits “encourage the couple to stay together”. Children may be a joy, but they are also an 18 year-long burden, sometimes longer. And with more than half of all marriages ending in divorce, the encouragement must not be very encouraging.
Further I feel all of us can agree that the State did not encourage you to get married, nor did the State encourage you to have children. So what did?
People partner up and have children because that is our biological inclination. Humans were having children long before they had established governments, and that’ll remain the case even if civilization ends up completely disbanded. Reproducing is the one activity at which life on this planet has become very adept.
And those same children we are biologically inclined to have is also what keeps couples together with their children. This is the direct result of evolution. You see in most species it is the mother that exclusively cares for the child until they are ready to stand apart on their own. This is true in almost all mammalian species as well. We are one of only few exceptions. Where this quality originated I don’t know, and I’m unsure if there is an answer to that question. But one thing is certain: a biological inclination on both parents to be involved in the development and nurturing of their children better ensures the survival of those children. And the survival of offspring at least long enough to have offspring of their own is necessary to carry on the species.
Divorce severely restricts this. By getting divorced or splitting up, parents cannot be as involved in the raising and nurturing of their children. In short children, and children alone, are the encouragement for parents to stay together. And even with childless couples, the biological desire to reproduce combined with the ready availability of a sexual partner encourage those couples to stay together and stay married – unless something just wholly kills any sexual attraction. The State through the “benefits” and privileges afforded married couples don’t encourage it. I would also consider it reasonable to say that most couples don’t even consider privileges or benefits afforded by the government in their decision to get married or have a child, so where exactly is the encouragement?
Further parenting is one of those things you have to want to do. If you don’t want to do it, there is no amount of encouragement the government can provide to get you into it. People are not stupid. They know what parenting requires because we were all parented. And people know that the government doesn’t encourage people to become parents. Our own biology does that.
Ask people why they became parents and you won’t find many people say that it was due to any kind of encouragement from the government or their church. It is asinine and ignorant to even proffer such as an argument.
* * * * *
I have to commend the writer of the article to which I was responding for putting together a well thought, well-structured argument attempting to defend the notion that the State encourages marriage and procreation and that marriage is about procreation because of this State encouragement. Unfortunately, when actually put under examination, we can readily see that such an argument does not hold water.
So where does this leave the argument that marriage is all about children? As far as I’m concerned, the argument is null and void, completely immaterial and inapplicable in any situation. While the argument is often raised in discussions on gay marriage, it doesn’t apply to those discussions at all. The desire of the government to continue restricting marriage on account of sexual orientation is merely a continuation of a legacy going back at least 150 years.
When the government established itself as the monopolist authority on marriage and marriage licensing, and declared that to become married you must first receive the government’s permission, they also gave themselves the ability to call the shots. And in many cases the shots they called pleased the majority often at the denigration of a minority. Initially that minority was a racial minority, but in 1961 that was overturned.
Now it’s gays who are having to fight to be able to marry who they want.
It is a fallacy to say that the State licenses marriage as a means of encouraging it and encouraging procreation. They don’t encourage it, nor do they need to encourage it. Instead State involvement in marriage is about having the legal force and the legal threat of violence to enforce perceived societal desires or norms. Nothing more.
