Keep Friendship Unregulated!

MassNews Staff
August 29, 2002

One might think that liberals as well as conservatives would agree that state registries of friendships are a bad idea. When it comes to personal relationships, especially if they involve sex, even supporters of a regulated economy usually oppose state intervention. Yet many otherwise privacy-minded citizens favor opening an official registry of gay and lesbian friendships, called either "marriages" or "civil unions," backed by government incentives to sign up. Are they making a mistake?

Perhaps some supporters of legal recognition of same-sex unions adhere to what has been called in jest the German attitude to freedom: "Whatever is not officially permitted by the State is forbidden." They may think that homosexuals are not free to form marriage-like relationships until the government gives them a certificate of approval. But this is surely false. Most states have decriminalized non-marital sexual relations between adults, or never enforce their prohibitions, so gays there are as free as anyone else to form long-lasting sexual friendships--and seal them with promises or vows--without government approval. Like other forms of friendship and like heterosexual marriage, permanent same-sex relationships can exist without state recognition of them. The argument for legal recognition of same-sex unions is not libertarian. It is an argument for state involvement in personal relationships.

It is true that every modern state maintains a registry of certain heterosexual unions, i.e. of marriages. Does this mean that heterosexuals have some liberty that homosexuals lack? Perhaps, but only in the curious sense that heterosexuals are free to become less free--and are encouraged by the state to do so. For the most part, marriage-related legislation limits, rather than increases, individual freedom: If heterosexuals try to marry two others at once, they (unlike similarly situated homosexuals) may be sanctioned - to take just one obvious duty imposed by the state. Frankly, marriage law seems at first more like some hangover from an earlier moral paternalism than like an instrument of individual freedom--and is so regarded by many contemporary homosexual as well as heterosexual thinkers.

Yet it makes no sense to think that liberal, secular states would aim to restrict freedom for the sake of an antiquated morality. Moreover, even if governments were somehow interested in preserving ancient, quasi-religious customs, why would they always stop at marriage? Why not officially encourage, certify, and reinforce other spiritually significant relationship events, such as the ordination of priests or the monastic vow of stability? But no modern state does these things.

Why, then, do governments continue to register heterosexual marriages, if not for the sake of morals or religion? Everyone knows the answer: Sexual relationships between women and men may generate children, beings at once highly vulnerable and essential for the future of every human community. The good of those children as well as the common good thus require that that community do all it can to stabilize and salinger.such relationships. Lasting marriage receives public approbation and support primarily because it helps to produce human beings able to practice ordered liberty.

Does this singling out of potentially fertile relationships imply disapprobation of infertile sorts of friendships? Not at all - no more than the singling out of binding contracts for legal enforcement implies disapproval of informal promise-making. The government is not trying to suppress the kinds of friendships and promises it does not aid. It just prefers, rightly, to leave us alone except where protection of the weak or the common good requires intervention.

The public weal clearly does require special benefits for heterosexual marriage. Why would a couple be willing to accept public involvement (and, to a degree, control) in its most intimate concerns if it had no strong incentives to do so? Furthermore, being faithful and raising children necessarily involve many sacrifices. Since these sacrifices benefit the whole community in the end, it makes sense for the community to provide concrete rewards in the form of special tax, social security, and other legal benefits. This is especially true where one spouse - usually the woman, but sometimes the man - gives up much or all of a career for the sake of raising children. Such a parent voluntarily shares the vulnerability of his or her children by becoming a dependent. Justice, the good of the children, and the common good all demand that the community provide at least some financial protection for such self-sacrifice.

It is these benefits, not freedom to form permanent relationships, which gays and lesbians obtain through official recognition of their unions. They get a cut of what really amount to state subsidies, as well as of the public approval that goes along with sacrificing for the good of others, in exchange for increased legal regulation of their property and liberty. They may be making a mistake as to their own best interests here. In any event, they certainly cannot claim a like community interest in their unions, for they are not, nor do they generate, vulnerable citizens in need of special protection.

Unless: Are not gay and lesbian unions also potentially fertile, in that same-sex couples may jointly adopt children in some communities? Such an argument is at least on the right track in attempting to articulate a public interest in such unions. But it does not really work. Opposite-sex unions might jointly bear children at any moment, so there is a public interest in stabilizing them from their very beginning. Same-sex unions as unions are absolutely infertile, so there is no possible child-related reason why a community should care when they are formed or dissolved. It is true that a community might later decide to entrust same-sex partners with joint care and custody of a child, but then this event is the moment when their union needs to be stabilized. In other words, adoption by same-sex couples could be a good reason to recognize those unions, but only at the time of each adoption - not before.

However, if the argument of this essay is right - that a liberal regime should not get into the relationship-certification business except to protect potential children - why would we permit marriage to last far beyond child-bearing age and even permit elderly persons and other infertile heterosexuals to marry? Letting marriage last a lifetime is easy to justify. Even adult children often need parental guidance and security in raising their own kids. Perhaps most important, a dependent, non-career spouse ought not be abandoned in an automatic dissolution at a certain age. As to making new marriages impossible for the elderly: Excluding those who are too old to have children from getting married would mean that men could marry and re-marry at a far more advanced age than women, something that might have quite disruptive effects on family life. Perhaps we could screen young people for infertility before letting them marry. But such screening would surely be a politically unacceptable invasion of our privacy.

All that has been said so far amounts to an argument that there is no strong reason in favor of official certification of same-sex unions. Those proposing legal recognition have not met their burden of proof by showing that fairness or protection of the vulnerable or nurture of future citizens requires state intervention. But there are also great harms generated by such recognition.

First of all, it is unjust to the community as a whole that the public purse be used to subsidize couples that do not, as couples, serve the common good. Those subsidies were set up to encourage and support unions that are in their nature able to generate children. It is not right to siphon these benefits off and pass them on to people to use merely for their private enjoyment.

Furthermore, to reward some purely private relationships would be unjust to all remaining unsubsidized relationships. Why should couples be able to get married and not groups of three, four or fourteen? And why limit official unions to those based on sex? A monk's ties to his monastery might be strengthened by legally imposed duties. In fact, how could any sorts of friendship rightly remain unregistrable? (Recall how difficult it has sometimes been for landlords to exclude any sort of tenant group without being charged with discrimination.)

David Chambers of the University of Michigan Law School, in an article favoring same-sex marriage, has written:

[W]e should respect made against the hegemony of the two-person unit.If the law of marriage can be seen as facilitating the opportunities of two people to live an emotional life that they find satisfying - rather than as imposing a view of proper relationships - the law ought to be able to achieve the same for units of more than two..By ceasing to conceive of marriage as a partnership composed of one person of each sex, the state may become more receptive to units of three or more.and to units composed of two people of the same sex but who are bound by friendship alone.

What would happen if we took Professor Chambers' advice and offered the same public benefits to every emotionally satisfying, long-term relationship? Would the direct and indirect costs rise so high that they could no longer be paid? I am thinking not only of economic costs, but also of the quality of civil society. Do we really want a State Friendship Registry? Even if the government used mainly positive incentives, rather than penalties, to support its scheme, would there not be too great an intrusion into private life? Would we not have lost too much freedom and flexibility in our personal relationships? Would we not have created an excessive bureaucracy?

Surely the answer is "yes." Yet every omission from the official list would be rightly attacked as discriminatory as long as the purpose of registration were to subsidize private emotional satisfaction. If the way back to public support solely for heterosexual marriage were politically closed, I predict the state would decide just to get out of the registration business entirely. No relationships at all would be certified or subsidized. Children would not be abandoned - professional childcare would no doubt flourish - but the legal institution of marriage would disappear.

Richard Stith, J.D. (Yale), Ph.D. (Yale)
Valparaiso University School of Law
651 South College
Valparaiso, IN 46383-6493
Tel. 219-465-7871
Fax: 219-465-7872
13 August 2002


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