By Tom Rhodes, 8/8/2012
The most basic, fundamental, and necessary laws are those laws created to protect the natural rights of people from harm. Laws against violent crime and property crime fall into this category. Without basic protection of natural rights, a society degenerates into despotism, the rule of the strong and violent over the weak and nonviolent, as we now see in Somalia. As is evident by the fact that every government in the world has them, laws offering basic protection of individuals from harm are essential.
Virtually all other laws are statist in nature and are used to control behavior, and grant the state power over individuals. These include; Nanny State laws written to protect people from themselves, like drug laws; Morality Laws written to promote the personal morality of the law's author (usually religious); Donation laws, granting goods, services, or privilege to some but not all citizens; and outright Statist Laws intended to protect the government from the people or increase its power over the people.
In the USA our constitution pretty much granted the government the power to create laws to protect the people from harm, but limited the government's ability to create statist laws. Our Bill of Rights is a list of specific prohibitions on the US government to create statist laws, and ensure the rule of law. For most of the history of Western civilization the state did not grant permission to marry (a license). This was because a 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 the first 1600 years of Christianity, to be married all people had to do was claim they exchanged marital vows, the church and government accepted the word of those people. The mere entries, of the names of the married, into the cover of a family bible were legal documentation of marriage.
Around the 16th Century Europeans started to require legal requirements in an attempt to prevent unions between young adults whose parents opposed their match (read Romeo and Juliet). In the USA, even as simple colonies, although marriages were officially required to be registered, until about the time of the civil war state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. It wasn't until the end of the 1800's that the USA started to nullify common-law marriages, trying to control who could and couldn't marry. This was specifically racist in nature punishing interracial marriage. As late as the 1920's a super majority of the states prohibited whites from marrying blacks, "mulattos," Japanese, Chinese, Indians, "Mongolians," "Malays" or Filipinos.
The history is clear, marriage laws are and always have been a way to control who is and isn't allowed to be married. About 50 years ago, the government got out of deciding who was and wasn't "fit" to marry. But it hasn't given up on using marriage as a means to control society. From Social Security, to inheritance laws, the government uses marriage to dictate how people "should" live.
Marriage licensing as a means of determining, when, if, and how state should protect interpersonal relationships is increasingly unworkable. Take as simple a thing as the legal rights and responsibility people have towards children. As a society we recognized marriage doesn't determine inheritance rights, parental support or legal standing. The government through its statist laws has destroyed the traditional reasons for marriage.
Exactly what is the purpose of marriage laws today? What interest does the government have in promoting interpersonal relationships? Is there a fundamental, basic, natural right that marriage protects? Is there a societal rationale for creating legal binding marriage laws? If society, government, and individuals are helped by marriage laws, how does/doesn't alternative marriages fit into the rationale for having marriage laws?
The fact is that if you believe in the rule of law, and equality under the law, then any law that grants special privilege or different rights to some individuals and not others is wrong, then you believe marriage laws are wrong. If however you believe that certain social constructs are fundamental to a working functional society and need to be protected and that certain individual freedoms should be limited for the good of society, then marriage laws may fall into that category. Because I believe that granting the government more power than is absolutely necessary is bad for society, I personally believe that the government should get out of the social engineering business, specifically sanctioning marriage, and should limit itself to arbitrating and enforcing contracts. But, if there is a rationale for government licensing of marriage, the basics and fundamentals must be considered and talked about.
Men are pigs and if not raised right, we will, if allowed, sow our seed everywhere we can with no regard to the consequences. The simple and politically incorrect fact is that marriage exists primarily to bond the father to the family. Leftist Margaret Mead correctly noted that motherhood is a biological certainty whereas fatherhood is socially constructed. If a father is not necessary, neither is marriage. The result can be seen in the single most determining fact of whether a child; lives in, grows up in, and continues in poverty being the presence of a father. Just about every social pathology in the young can be mitigated by the presence of a father. When there is no father present, adolescents run wild, and we see the resultant societal chaos.
All of the other ideas behind marriage are simply the satisfaction and comfort of adults. Consensual, loving and emotional relationships do not require a marriage. The practical reality is that marriage existed for one reason, to make sure that children have not just a family, but a father. Not a sire, all children have sperm donors, but marriages are primarily to create legal, moral, and social restraints on men to be fathers. In the absence of children, there is no cogent reason to form "families".
Gays and their position on marriage have not destroyed it, they didn't even bastardize it. They are just taking advantage of the destruction of marriage as an institution by strait people. Because the traditional underpinnings of marriage have been undermined, people in consensual, loving and emotional relationships outside of traditional marriage are laying claim to marriage. Gays want marriage as evidence of societal acceptance of their behavior, not the true burdens and restrictions on individuals that marriage used to create.
The hookup culture and 50% divorce rate, preceded gay-marriage. Since the bounds of traditional marriage, and the voluntary limits and strict restrictions prior to no-fault divorce are no longer valid, by today's standard there is no foundation to restrict any type of marriage, be it strait, gay, polygamous, or whatever. By today's standards marriage is just as easy to dissolve as any other business partnership. As such any marriage law is stupid and should not be in the government's purview.
Only if we as a society, are willing to go back to making marriage binding, with exact legal conditions having to be met prior to granting divorce does having marriage laws of any kind make any since. Divorce is detrimental to children, yes in some cases it is better, but for the vast majority of children intact marriages are the best predictor of their success and well being. Unless both parties agree to a divorce, a person should have to show just cause in dissolving a marriage. The ability to discard a person you married, regardless of their wishes, makes marriage a meaningless institution. If children are involved, you should have to prove in a court of law real physical abuse, abandonment, etc. and that the divorce would improve the financial and emotional well being of any offspring. In the presence of no-fault divorce, marriage laws do not make any since.
Conservatives and the religious right, fighting gay marriage, but not willing to look at and examine no-fault divorce, quite simply destroys their arguments. Conservatives are unwilling to let divorce be part of the political agenda. Because no US politician is willing to touch the true third rail of politics, No-Fault Divorce, their fight to defend "traditional" marriage is false. Christian "pro-family" groups are un-willing to put any effort in reforming divorce laws. The moral authority to defend marriage as it stands today, just doesn't exist from either the right or the left. Because of its amorphous stand on marriage and divorce the Church in America has any authority or moral standing to argue for traditional marriage.
Traditional marriage created and makes fatherhood a serious and valuable condition. No-Fault divorce is a system for destroying fatherhood and making fathers just sires of offspring, not accountable men whom society expects to be responsible sacrificing adults. Divorce courts are largely the method for plundering fathers and making them criminals. With current marriage/divorce law what man in his right mind would get married? Without any obligation to show fault, a woman can; have a man thrown out of his house, have is wealth confiscated, lose all contact with his children, and have the majority of his future earnings confiscated. As it now stands, no rational man would enter into a legally binding agreement that allows that.
Forming a traditional family, with parents and children, creates a situation that the government doesn't have legal or moral control. A marriage with a family that has offspring creates a zone of privacy for the purpose of raising children. Parents have traditionally had the right to determine how children are raised without government interference. This is a politically unique relationship where society allows the exercise of coercive authority over others. This is the only part of society where the state doesn't have the exclusive right to use force to elicit behavior and punish wrong behavior. Because this is the only part of society government doesn't control, it has tried and succeeded in undermining marriage. Without parental authority, legitimized by the bonds of marriage, the government can and will dictate how children are raised. This gives the government total control over the people, right down to what is or isn't an acceptable child's lunch. If you look at communities where marriage and fathers are no longer the norm, government has replaced fathers with welfare.
With today's current marriage laws, the only reason gays want to get married, is to force society to morally accept their life choices and behavior. It is not for legal protection, as partnerships, wills, and other legal devices can give them all the legal protection of a marriage. In fact a marriage makes one/or both less legally protected. Forget the gays attack on marriage, feminists, bar associations, psychotherapists, courts, social workers, and public schools are not about to allow the return of traditional families based on traditional marriages with limited divorce as the foundation of our society. As a result of the attack on fathers and families, they have gained too much power, money, and control.
The basic rationale for marriage, fatherhood, is no longer valued, protected, or desired by those in power and the majority of our feminized society. The state has effectively ended traditional marriage. Smart rationale men are not about to enter into, one sided, legally binding, contracts that don't offer them any rights. The massive rise in the amount of unwed mothers and never-wed people proves this. The majority of our society no longer believes that the traditional family is the cornerstone of a working, prosperous, self governing society. We are wrong, and as seen by the roving bands of violent adolescents in our fatherless inner cities. But since there are no longer societal standards that shame and ostracize men who fool around without taking responsibility, not even our religious institutions will stand up for and protect fathers rights, and we accept the fact that women need men like fish need a bicycle, what purpose in modern western culture do any marriage laws serve other than granting government control of private relationships?