Wouldn’t it be great if we could just get the state out of the marriage business? Perhaps. Marriage is fundamentally private, after all. It’s a matter for families, churches, and couples to decide for themselves.
Yet state recognition of marriage often acts to keep the government out of private life, to ensure family stability, and to give regular, orderly rules for all those times when, despite our best efforts, family and state still collide. Here are just a few of the things that the civil side of marriage does:
- If you’re happily married and you have children, you don’t have to worry for a moment about child custody law. Your children are yours to raise jointly, whether they are biological or adoptive.
- If you’re married and you die without a will, your spouse typically gets at least a share of your estate. You don’t have to do anything special for this to happen. It’s automatic, and I think this probably strikes most people as fair.
- If you’re married, you don’t need to do anything special to be able to make medical decisions for an incapacitated spouse. It’s presumed that you are competent to do this.
- You can sponsor your foreign spouse for U.S. citizenship.
- You can sue for wrongful death of a spouse.
- You can collect a spouse’s Social Security benefits.
- You can often keep joint personal finances without worrying that your spouse will bankrupt you.
Depending on where you live, some of these protections can be won outside of marriage, if you’re willing to go to a lawyer and spend a few hundred bucks. Others, like the last four, can’t be had without either a marriage or a blood relationship.
State recognition of marriage protects families, often from the state itself. If the state got out of the marriage business, the state would be a lot more in all of our private lives, judging, inspecting, regulating, forbidding, taxing, redistributing, and all the rest. Much of the state part of marriage is really a protection against the state.
All of this is a lead‐up to saying congratulations to the same‐sex couples who will now be able to marry in Washington, DC. Perhaps even more than other types of marriages, same‐sex marriages need these protections. (Some, like sponsoring an immigrant or collecting Social Security, may have to wait for federal law to catch up.)
On the whole, same‐sex marriage means that gays’ and lesbians’ private lives can stay private. It gives them a protection against the government, which has too often been used against them. It means that gays and lesbians can be treated the same as any other group of citizens. And it means that their basic right to be left alone is finally being honored.