The major outcome of the landmark 2015 Supreme Court case Obergefell vs. Hodges was that same-sex men and women are guaranteed a fundamental right to marry, which comes along with government granted privileges, such as tax benefits, as well as end of life and child/family decision-making authority. In the 5-4 ruling, the majority ruled that the Equal Protection Clause of the 14th Amendment protects the right of same-sex men and women to marry.
I have no quarrels whatever with anyone who want to get married, gay or straight, but I do have an issue with court ordered expansions of fundamental human rights and sloppy judicial activism that clumsily tramples on the democratic process. A better solution would be to simply end government’s involvement in marriage altogether. After all, a marriage is but a contract outlining the rights and responsibilities of the individuals involved. In a libertarian society, there is no legitimate role for the State to play in marriage. If there is to be a State, though, then the role of the government should be solely to enforce contract law via the courts, no more, no less.
The involvement of the State in marriage, like the State’s involvement in most areas, is unnecessary at best and harmful at worst. Aside from the obvious fact that requiring licenses generates revenue, there is a more insidious effect. By defining who can get legally married, the State can control the private lives of those they deem outside their realm of morality.
No one may understand that more right now than polygamists.
Last week, Utah Gov. Gary Herbert (R-UT) signed new legislation that not only continues to treat polygamy as a felony offense punishable by up to five years in prison, it also changes the definition of bigamy, as well as enforce additional penalties if someone in a polygamist relationship is suspected of a number of different types of crimes, including fraud, child or spousal abuse, or sexual assault.
Under current Utah law, a legally married couple can have a third member live with them and raise a family without interference from the government, but as soon as they refer to that relationship as a “marriage”, they are committing a felony. The law literally criminalizes what people can call their consensual adult relationships.
“This year, Utah lawmakers decided to double-down on the state’s bigamy statute. Under HB 99, bigamy becomes a second-degree felony if a defendant is also suspected of fraud, domestic abuse, child abuse, sexual assault, human smuggling, or human trafficking; as such, it’s punishable by up to 15 years in prison, in addition to any penalties for those separate offenses. Anyone fleeing from abuse in a polygamous relationship is now immune from bigamy prosecution.”
Instead of passing more and stricter laws regarding who can or can’t legally marry, we should remove government from the realm of marriage totally and completely. There is no reason why consenting adults shouldn’t be allowed to make their own decisions regarding how they want to set up and run their families.
It is the individuals involved that are responsible for their choices and they need to be the ones who make the tough legal decisions. Important issues such as end of life medical care, or child care, or who gets what should there be a divorce, should all be determined by the individuals themselves, not moralistic, demagogic politicians and bureaucrats. That goes for gays, polygamists, and everyone in between.