Why Does the Government Regulate Marriage?

Lady writing in the New York Times asked a question I've asked here before. I didn't expect anybody to take it seriously, but now that I hear her talk about this, I do wonder, why does the government have anything at all to say about who you can marry?

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners. Taking Marriage Private (by Stephanie Coontz, professor of history at Evergreen State College and author of Marriage, a History: How Love Conquered Marriage.)

Well, that is some interesting stuff. At first, you just ... lived with somebody, that was enough, move in and you're hitched.

And then, you can see that a government would want to regulate procreation and inheritance, this was a way for the guys in power to assert their superiority, that's an old game. But it's not clear why the people would put up with that.

But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.

In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.

Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.

It's like everything; you get swept into the system, and the system takes over. Marriage has nothing to do with the bureaucracy that manages your insurance policies, your pension, your doctor bills, your mortgage -- a marriage license was a handy way for those institutions to keep track of you and manage your stuff.

So because the bureaucracy needed records, the state needed to be responsible for getting you registered, and if you weren't, you couldn't get your benefits. And then it's just too easy for the state to attach strings to it. You needed a blood test. You had to be a certain age, single, straight. You can't marry without a license because the bureaucracy owns your life, and you can't get a license without meeting some criteria established by somebody with a political agenda.

My thought was that marriage should be registered by religious organizations. You could have the Church of Atheism, the Church of Gay, whatever, if a church would sign your papers you would be married. Of course, you immediately see the problem: could you accept someone else's idea of marriage? What would you do when the polygamists came out of hiding? How about when the ten-year-old down the street is given away in an arranged marriage, as is done in many lands?

That freedom business is a tough one, isn't it? It's fine as long as everybody does the same thing, doesn't always hold up too well when it's put to the test. For some people, the solution to that dilemma is to force everybody to do the same thing. Others see that it's tough, but figure it's worth the price.