The state should get out of the marriage business

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With the historic event of thousands of gay and lesbian marriages conducted at San Francisco’s City Hall, legal suits pending a March 29 hearing, the prospect of the city of San Francisco vs. the state of California and President Bush’s call on Tuesday, Feb. 24, for a constitutional amendment banning same-sex marriage, it is time to revisit the place of government in regulating marriage.

Clearly, both sides in the debate on same-sex marriage put great stock in the state’s sanctioning of marriage. From both sides we hear references to “the sanctity of marriage.” Homosexuals demand equal access to it and their opponents use it to try to keep them out. If that is the argument, we have somehow forgotten that separation of church and state means that the government has no role in regulating the sacred.

I am not a lawyer or a professor of constitutional law or even a tax accountant helping married people reap the financial benefits of their union, but it seems clear to me that marriage is best kept outside the province of secular government altogether.

It ought not be the business of government to regulate to whom and how we choose to commit ourselves: the traditional heterosexual pairing, same-sex union, one woman to three men, one man to two women, or any other family arrangement of consenting adults.

In societies in which women are not legally equal to and independent of men, legislation prohibiting polygamy is both sensible and socially important.

If women cannot protect themselves from unwanted marriages, as is the case in societies where parents make their daughters’ marriage plans, such protection is necessary.

But I do not believe that is still the case in our society; there is no longer a need for such regulation. Government should restrict its role in regulating marriage to one and only issue: the protection of minors.

Government sets adulthood at 18 as the age at which one may enter a binding legal contract. The same should hold for the regulation of contracts between people who wish to share those things that we normally encompass in marriage: raising children, sharing financial resources and a home, inheritance, medical benefits and next-of-kin privileges in medical situations.

The privileges that accrue to marriage such as tax benefits, health coverage and inheritance should be based on “sharing contracts” between adults, not marriage. For example, if the government wishes to continue to provide tax benefits to people who share their incomes, expenses and homes, it can offer joint tax filing based on the contract between those individuals. Marriage need not a necessary element.

Similarly, people would be free to enter into inheritance agreements when they choose to share their lives with another, with contracts that would replicate the inheritance privileges we now grant through marriage.

More importantly, the government should continue to provide support and benefits to people who commit to joining together in raising children. Such a commitment does not have to be dependent on marriage, but only on parental relationships defined either by biology or by legal means, namely, adoption and co-parenting agreements. The government should encourage and reward contractual agreements between adults to share in the labor (hopefully, labor of love) and costs of raising children.

Marriage as an institution that carries a spiritual-religious- sacred meaning should be the province of one’s voluntary association with organizations that are in this business: churches, synagogues, mosques and other spiritual communities. People who wish to enter marriage for such spiritual purposes will need to find an appropriate ceremony in their religious communities or demand it from that community. Let them marry through the institution whose sanction is religiously or spiritually meaningful to them.

In the case of the Jewish community, this means that we should continue to encourage a vigorous debate in different Jewish religious movements about acceptance of same-sex marriage and about whether same-sex marriage will be afforded the status of kiddushin kedat Moshe v’Yisrael — traditional Jewish marriage “according to the customs of Moses and Israel.”

It is a critically important discussion that I foresee occupying the Jewish community for several generations. But we should keep the United States government, the state of California and even San Francisco’s trail-blazing City Hall out of it.

Rachel Biale, 33 years in a traditional heterosexual marriage, lives in Berkeley and is the author of “Women and Jewish Law.”

Rachel Biale
Rachel Biale

Rachel Biale, an Israeli native, is a Bay Area Jewish community professional and author.