Homosexual Marriage and the State

A judge ruled recently that homosexuals have a right to state recognized marriages and declared a law in California denying such recognition unconstitutional. Members of homosexual organizations are generally pleased by the ruling, and members of political groups favoring traditional, especially religious, approaches are generally outraged. There may be appeals or new actions in legislatures , and the outcome is not easy to predict.

Irrespective of all that, the ruling is wrong, though not for the reasons conservatives are using. Homosexuals clearly have a right to marry. They can perform any marriage ceremony they want, with any meaning they like, presided over by any willing person they choose, and it is nobody’s business but their own. The ruling is wrong because no one, neither homosexual nor heterosexual, has an inherent right to have his marriage recognized by the state. One can easily imagine a hypothetical country where the government was completely silent on the question of marriage – leaving the question of what is and is not a marriage to the various religious organizations and/or the general opinions of society and writing its laws without reference to marriage at all. Such an arrangement would violate no one’s rights.

One can of course counter that, while this may be true, once the government recognizes some people’s marriages, it must recognize all people’s marriages. However, this argument is rarely pursued consistently. People who want the government to recognize marriages between two homosexuals do not generally also advocate recognition for marriages between parent and adult child, between brother and sister, or among those in relationships involving more than two people. Yet a consistent acceptance of the argument would seem to require that.

The actual fact is that the issue of recognition is not one of rights. Governments recognize different things as marriages in different periods and places for reasons usually based on the mores of the time and the relative power of those demanding and opposing recognition. The question belongs not in a court of law ruling on rights, but in the dreary dogfight we call the political process. Besides, to the extent marriage involves something deep and personally important, recognition by the government is irrelevant anyway, except for pragmatic concerns.

The main pragmatic issues relating to government recognition of marriage, apart from those concerned with raising children, have to do with taxation. Under present law married people can file joint tax returns, pass property to a spouse without gift or estate taxes, leverage Social Security tax payments to obtain credits for a spouse, inherit a spouse’s retirement plans under favorable conditions, make IRA contributions for a non-working spouse, and receive other breaks. Advocates of recognizing marriage between homosexuals argue that without such recognition homosexuals are treated unfairly. This, however, ignores the nature of taxation. Taxation operates under the law of the jungle with the government as the predator and the taxpayer as the prey. Saying homosexuals have a right to the less severe treatment the tax collectors give certain heterosexual couples makes no more sense than claiming that renters have a right to the less severe treatment the tax collectors give certain people with a mortgage. In deciding what and whom to tax, governments are guided by an assortment of political and pragmatic concerns, but rights and fairness are not among them.