Today's Opinions, Tomorrow's Reality 

Injustice of the Peace
Delegalizing Heterosexual Marriage

By David G. Young

WASHINGTON, DC, January 25, 2000 --  

As the half-dozen major U.S. presidential candidates roamed around rural Iowa and New Hampshire, all of them adopted the crowd-pleasing mantra of opposition to gay marriage.1 To be certain, it was conservative stalwarts like Gary Bauer and Alan Keyes who were most vocal, but even self-proclaimed gay-rights supporters like Al Gore and Bill Bradley refused to challenge the conservative mores of rural voters.

But while presidential candidates and lawmakers stick their heads in the sand on this issue, courts are legislating from the bench. Last month, a Vermont court ruled that gay and lesbian couples in the state could be subject to all the legal protections afforded to heterosexual married couples.2 Across the border in Canada a year earlier, the Supreme Court struck down an Ontario law that denied family benefits to a lesbian partner.3 And while the U.S. Congress has effectively barred federal recognition of such unions with the 1996 Defense of Marriage Act, the clear trend is toward legal recognition at the local level.4

These trends particularly offend conservatives, who believe that heterosexual marriage is the only morally correct union. Their opposition to gay marriage largely comes down to three arguments. First, gay marriage is unnatural and violates Judeo-Christian traditions. Second, legal recognition of gay marriage harms the sanctity of heterosexual marriage. The third argument is the slippery slope: If gays are allowed to marry, then it is only a matter of time before group marriage, polygamy, incest, and bestiality will all be sanctioned by law.5

The problem with the first and third arguments is that they are extremely subjective. It is a matter of personal beliefs whether or not polygamy and group marriage are bad things. Likewise, if you are not a Christian or a Jew, it is unlikely you will be concerned about going against Judeo-Christian traditions. The only argument that may have merit in the public arena is the second one: the assertion that gay marriage harms the public good of heterosexual marriage.

Heterosexual marriage is certainly a good thing. Heterosexual marriages often produce children, which are pretty much vital to the continued existence of the human race. And the traditional heterosexual marriage is still the best way to raise kids. Having two parents of different sexes is a demonstrably better way to raise children. It gives children of either gender same-sex role models, and provides far more support than can be provided by a single parent. If the law were made not to encourage heterosexual marriage, that would certainly be a bad thing. (Or so the argument goes.)

But U.S. law already does little to encourage heterosexual marriage. In fact, it actually discourages it. The tax code's "marriage penalty," as conservatives like to point out, can add $1,000 or more per year to a couple's tax bill.

The best solution to the problem, therefore, is to actually end state recognition of heterosexual marriages. While this may seem drastic, the reality is that state marriage licensing has a somewhat shameful history. Laws that limit who can and can't be married have often been abused. In the past, these laws have been used to prevent marriages between partners of different races. Today, all local jurisdictions try to enforce their own code of morality by restricting who can and can't be divorced.

Deciding who can and can't get married or divorced is none of the government's business. Instead of extending the dysfunctional umbrella of public marriage licensing to homosexuals, it should be ended for heterosexuals.

To be sure, a streamlined legal mechanism to recognize joint property trusts would be needed to replace legal marriages. But this is a much simpler and less emotionally charged solution than legalizing gay marriage. Under such a system, getting married would be an entirely non-governmental affair, a voluntary union between people within the framework of their own spiritual beliefs.

Conservatives should support this plan because it would end the marriage penalty and deny explicit government sanction to gay marriages. Liberals should support this plan because it would allow homosexuals to enjoy the same rights as heterosexuals.

But some conservatives may oppose this idea. While they are usually against government power, conservatives of the social variety support it when it comes to enforcing traditional values. These people will oppose this plan explicitly because it ends state recognition of heterosexual marriages. They will insist that it hurts the institution of marriage in the long run.

Can heterosexual marriage survive without the intervention of the state? Probably. But if not, then it is very unlikely that the state can do anything to save it. Over the past 50 years, divorce rates have risen to record levels, and the number of people electing to have children outside of marriage has skyrocketed. In some Scandinavian countries, only a small percentage of children are born to married parents. These changes have come about due to powerful economic forces. Women now have the economic power to raise children without the support of men, and that's precisely the reason they're doing it. The changes in the way children are raised are but a symptom of these economic changes.

If heterosexual marriage is a public good, as I believe it is, it should be strong enough to survive the absence of state recognition, the rise in women's economic power, and the presence of homosexual unions. Supporters of heterosexual marriage should have more faith in the institution they revere.


  1. National Review, The Week, January 24, 2000
  2. Associated Press Online, Vt. Court Backs Gay-Couple Benefits, December 21, 1999
  3. Time Canada, December 27, 1999, p110
  4. Library of Congress, HR3396
  5. Human Events, November 12, 1999, p10