Here is an evaluation of three current proposals:
- Continue the current government regulation of marriage as the union of a male and a female.
- Discontinue the regulation of marriage altogether.
- Expand the regulation to other categories of personal relationships.
The analysis begins with two defining questions.
- What serious interest does government (the State) have in the regulation of marriage?
- What was it about the historic civil understanding of marriage as being
between a man and a woman that gave rise to this interest?
Then the logical paths through the analysis are as follows.
Is that historic reason for government regulation of marriage still valid?
- If no longer valid: the regulation of marriage serves no public interest and should be dropped.
- If still valid: the government has a continuing interest in the regulation of marriage.
If government regulation of marriage is to continue, we next ask whether
this historic justification for this regulation applies to other categories of
personal relationships?
- If so government regulation of those relationships should be undertaken.
- If it applies to no other personal relationships then such expansion
would serve no public purpose.
My presentation thus far proposes the logical framework for the investigation. Next let us identify that crucial interest that justifies government regulation of marriage. As is usually the case any regulatory process uses many tools, such as licenses, fees, standards, taxes, tax breaks, penalties, fines, educational requirements, subsidies and more, in bringing about desired results. The reality that is being regulated should not be confused with the tools used in bringing about the behavior desired by government.
The existential reality that gave rise to the government’s interest in marriage was the biological fact that the sexual union of a man and woman can and often does lead to the conception of new human life, children. The centrality of this interest can be seen in the many judicial annulments granted in cases where such procreative behavior is physically impossible or has never taken place. This is also confirmed in the response of the state to unlicensed marital unions. Typically no action is taken unless children are conceived by the couple and then the state imposes its regulatory requirements on the biological parents.
Thus the peace and tranquility of society leads government to require (through regulation) those engaging in procreative activity to be responsible for the care and nurturing of the resulting children until they are self sufficient adults. The development of mature and stable adults, of course, has other outcomes of interest to the state. For example, more taxpayers, more soldiers, and so on. Later bio-genetic research added criteria as to who should not be allowed to marry due to the probability of negative outcomes of this biological process. Thus one cannot marry a close relative such as a brother or sister. These elements of regulation would not have been of interest if procreation was not the reason for government regulation of marriage.
Is this reason for regulating marriage still valid? Most certainly it is. Nothing has changed the biological fact that the sexual union of a man and woman can and does result in conception of new life. Introduction of new methods of birth control have certainly reduced the conception rate in our society but have not changed the biological facts. The result sought by the regulation is the responsible behavior of the natural parents and protection of the rights of the children. Extensive divorce procedures in regard to children and the actions permitted by child protection laws to interfere in family life when government standards of child care, rights and Safety are jeopardized make sense only in light of this basic reason for the state’s regulation of marriage. Therefore the state has an ongoing interest in the regulation of marriage.
Are there other biological relationships that can lead to the conception of new human life, children? In the case of relationships between persons only the man/woman sexual union qualifies. Thus the government regulation of other categories of personal relationships does not seem to have any justification.
Technology seems to offer additional means, not involving personal relationships, for children to be conceived. The contract with a surrogate mother or father is certainly not ‘personal’ and at the get-go precludes half of the responsible natural parent element of the marriage concept. The agreement between a medical institution and an individual to artificially conceive a child is likewise not a personal relationship. These alternatives relate to adoption regulations due to the lack of personal commitment to parenthood of one or both biological parents.
Government regulation of adoption and foster care processes has given rise to several legal (as opposed to biological) parenting categories. The bond between a child and parenting person (s) in these cases is initiated by a legal contract and not on a biological relationship. Since the parenting adults might be an individual, a couple, a relative and often an institution (e.g.; orphanage) the marriage designation is not appropriate here either.
Thus it appears that the expansion of marriage regulation to additional categories of personal relationships is not warranted. This paper has presented a totally civic analysis of the state’s interest in the regulation of marriage. One value of this approach, in our diverse civil culture, is that the values driving the state’s interest are not dependent upon ethnic, economic, religious or sexual points of view but upon biological reality.
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