Prop 8 and DOMA: The Only Way to Marriage Equality is to Eliminate State Marriage Licenses


Several years of debate, legislation, and court decisions culminate this week with the Supreme Court hearing arguments on the issue of gay marriage. The debate is framed around a concept often called "marriage equality," despite the fact that it only includes opponents and proponents of a single kind of marriage — gay marriage. Both groups have found themselves in a windy, uphill legal battle that has all but completely exhausted each and every last intricate detail of subject. Not to mention that both sides have had plenty of time to rehash the same tired arguments time and time again: "Marriage is about love!" versus "The Bible says you can't be gay!"

Amidst this debate, we miss a solution which can easily satisfy both camps. There is, after all, a reasonable and practical solution which recognizes "marriage equality" without ever demanding that a specific definition of marriage be recognized. That solution is to abolish state marriage licenses altogether. 

There is a pervasive sense of irony in that both groups in this debate have concerns which seemingly contradict one another, but yet have the very same solution. Conservatives argue that marriage is a Biblical tradition which joins one man and one woman, and do not want the federal government to define marriage in any other way. Liberals, on the other hand, argue that marriage is a right and, as such, gay couples should be equally recognized. Both groups could be correct, so long as they demand that the state stop providing definitions for what "legal marriages" are.

State marriage licensing has almost always been a tool for discriminating against certain groups at the expense of more favored groups. One such instance was in English law, when marriage licenses were established to protect men from being sued by women whom they had impregnated for child support. Another instance, here in the United States, was the use of marriage licenses to prevent interracial couples from marrying. Today the licenses are used to recognize only heterosexual couples. And, if the court decides in favor of the pro-gay marriage crowd, tomorrow the licenses will be used to recognize only "couples." Domestic partners, single individuals, polyamorous marriage groups, and other various sections of consenting adults will not be recognized. Seeing as that couples whom are legally married are provided with tax benefits and other government goodies, this system will be inherently unequal for anyone whose marriage is just not the same as a "real marriage."

What the proponents of gay marriage are missing is that the fundamental discriminatory factor in this puzzle is the state. If the state does not issue the license, then they simply cannot discriminate. No specific, codified definition would exist for who could be married and who could not, so long as children and other non-consensual actors could be protected. Obviously I am not arguing that any person should be forced into marriage under duress, or that minors should be haphazardly included in those qualified to be married. This solution would only apply to adults who are currently capable of signing other kinds of legal documents.

You might be wondering what this does for marriage when all is said and done. The answer to that is, in reality, very little. Religious people would still be able to have their marriages recognized in whatever church they might choose. Others are welcome to have any sort of ceremony they so desire to celebrate matrimony. The acts of "getting married," the various after-parties, and all of the cultural associations of marriage with love and relationships are kept in tact. 

The only real difference is in how money and other property is to be handled in the event the relationship dissolves. There are decisions to be made in who-gets-what in the event one spouse dies, or how to divide up the estate in case there is a divorce. It is not at all hard to sort out these details, and in fact these are legal issues which are mostly figured out when people get married anyway. In the place of state marriage licenses, we should have binding legal contracts where two or more people can determine which partners receive what benefits. Instead of a state marriage license, let us call it a "private marriage contract."

In this case, the only role that the government plays is in enforcing the terms of the contract, and ensuring that all signing parties uphold their agreements. This way the state cannot arbitrarily determine who gets rights, who doesn't, and how and why. This way, religious ceremonies of marriage can remain sacred, and this way minority groups looking for equal benefits do not have to grovel with the state in order to get them. Throw out the DOMA and other federal "definitions" of marriage. Throw out state marriage licensing.

If we truly want equality in the United States, we must treat all people equally in the eyes of the law. We must stop providing benefits to certain groups but not others, the same way that we must stop refusing benefits to some groups but not others. Responsible adults are capable of making these important decisions for themselves, and they should not have take into account what government, or any individual for that matter, "thinks" about their marriage; nor should they have to pay the government for a piece of paper to give them permission to be married. This is the argument for equality: The same favors for absolutely everyone, or those favors for no one.