Home > Artificial Reproductive Technology, Health Care, privatize marriage, Same Sex Marriage > Government Neutrality in Marriage is (probably) Not Possible

Government Neutrality in Marriage is (probably) Not Possible

July 8th, 2010

I am responding to the inquiry of a student who wanted to know, in effect, whether it would be desirable to somehow get the government out of the marriage business altogether. Couldn’t we sidestep a lot of the conflict over marriage, by eliminating the default relationship contract currently known as marriage, and allowing any couple or other adult grouping to create any contract they found mutually agreeable?

I posed this question to the student: If you believed that it is not possible for the government to be neutral in the definition of marriage, would that change your view of the desirability of your proposal?

In my previous post, I argued that marriage “equality” is not possible. Legal arrangements that appear to treat same sex and opposite sex couples identically have other kinds of inequalities embedded within them. In this post, I want to address a different subset of the equality question: is it possible for the government to be neutral among different types of relationships? Is it possible for government to refrain from “privileging” some kinds of arrangements over others?

I believe government relationship neutrality is not possible, given that government is already involved in a wide range of activities and services that bear on the decision of whether to marry, and if so, what sort of marriage contract to form.

Let me offer some examples that will illustrate what I mean.
1. The government already penalizes marriage for low income citizens. Mothers receive more governmental child support if they are unmarried than if they are married. In this case, the government is not neutral between marriage and non-marriage, between child-bearing inside marriage and child-bearing outside marriage. for reasons best known to itself, the government is actively biased against marriage for low income mothers.
2. In the recently enacted health care reform, cohabiting couples receive greater access to health care at lower cost than if they married. In this case, the government is actively discouraging marriage.
3. For a whole different set of governmental incentives, consider Octo-Mom, Nadya Suleyman. She had 14 children through artificial insemination. She did not pay for these services herself; she was covered by some low income medical care program (Medi-Cal?) She was not married. The government provided her with a range of services that led her to believe that, all things considered, forming a marriage relationship was not necessary or desirable. She had the use of a man’s sperm, without ever having to have any kind of relationship with him. He not only has no financial responsibility for the children, he has no parental rights to any relationship with him. She has full custody of the children, who are radically fatherless. Her health care was paid for. She has on-going state support. One can hardly claim that the government is being neutral or even-handed in its allocation of benefits between the married and the unmarried.
The point of all these examples is that someone within the government is already making decisions about what kinds of relationships to “privilege” over others. These women aren’t just making random decisions: they are responding to incentives that have already been put into place. Someone decided to enact those policies that had those particular incentives embedded within them.
The government is not neutral. Saying, “let people form their own relationships, on their own terms,” does not really avoid conflict over the public meaning of marriage. it simply moves the conflict back a step. We still have to answer these questions: is it desirable that public funds pay for the manufacture of radically fatherless children, just because some women want them? Is it good public policy for the state to provide more income support to unmarried mothers than to married couples? And, way down the list from these very basic questions, we have to ask ourselves, does the union of two women count as the same kind of marriage as the union of a man and a woman, for the purposes of assigning public benefits?

The only reason I say it is “probably” not possible for the goverenment to be neutral about relationships is taht the goverenment could get out of the health care business, the welfare business, the tax business, the pensiion business, the education business, the housing business. if it got out of all that, then it is conceviable that one could talk about the state being neutral with respect to relationships . in the meantime, however, we have to make decisions about the public benefits of different kinds of relationships and whether any public purpose is served by encouraging some kinds of relationships rather tha others.

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  1. Bethany
    July 9th, 2010 at 07:42 | #1

    Dear Dr. Morse,

    Thank you for this insightful post! I met you at the NACFLM conference a few weeks ago and have enjoyed reading the Ruth blog ever since.

    Perhaps you had come across this article already – in the Washington Post, July 6: “By freezing embryos, couples try to utilize fertility while delaying parenthood” It affirms exactly what you said about reproductive technology affecting people’s decisions *now* – both the decision to marry, and the decision if, and when, to have children.

    The most poignant line comes in the last paragraph. After completing the process of ‘creating’ and freezing five embryos, the author comments, “We can choose to use them any time. And, of course, my husband and I are still free to have babies the old-fashioned way. We still have all the options we had prior to this project – but now we have some insurance against future infertility.” [Read ‘insurance’ as ‘5 human lives that are now entirely dependent on our will to bring them to birth or not’. Chilling.]

    Thank you for your work, and blessings on the preparations for the Youth Conference!

    [link: http://www.washingtonpost.com/wp-dyn/content/article/2010/07/02/AR2010070204597.html?sid=ST2010070204778%5D

  2. Marty
    July 9th, 2010 at 13:12 | #2

    is it desirable that public funds pay for the manufacture of radically fatherless children, just because some women want them?

    What about the men who want “radically motherless children”? Isn’t the State under the same duty (if only for the sake of “equality”) to provide public funds for them as well?

  3. Marty
    July 9th, 2010 at 13:19 | #3

    we have to ask ourselves, does the union of two women count as the same kind of marriage as the union of a man and a woman, for the purposes of assigning public benefits?

    Obviously not, as illustrated in my comment above. Two women will have TWICE the “reproductive rights” as a married man and woman, and TWICE the claim on public funds to pay for their “social intertility” issues. More actually, because the woman married to a man is far less likely to encounter any fertility problems at all (and those she does will be medical not social).

    Why should taxpayers fund the so-called “reproductive rights” of women who have no fertility problems at all — they simply think men are too gross to properly engage?

  4. Heidi
    July 13th, 2010 at 10:01 | #4


    Lesbians don’t “think men are too gross to properly engage,” they just ARE NOT sexually attracted to men!!!!!!!! WHY, OH WHY, is that so hard for you to understand? Asking a lesbian to have sex with a man is like asking her to have sex with her brother. It’s just WRONG.

  5. Arlemagne1
    July 13th, 2010 at 10:17 | #5

    You wrote: “they simply think men are too gross to properly engage”
    I have to say I disagree with you.

    To make this film ( http://www.youtube.com/watch?v=jDJQe62x1To ) Ellen Degeneres was paid X dollars (I’m presuming she was paid in dollars, but it could be pesos or deutchmarks for all I know) to passionately kiss Bill Pullman. Now, Ellen a lesbian. However, despite this designation, she can indeed be motivated to kiss a man passionately by offers of X dollars or more. Heck, hookers don’t often do that. (See the book “Brothel” by Alexa Albert).

    I bet you can find similar footage of Rock Hudson, Anthony Perkins, etc. doing the equivalent.

    I think this goes to show that, when properly motivated, a lesbian or gay person can engage with a person of the opposite sex. Perhaps the motivation has to be extrinsic, but it certainly can be done.

  6. Arlemagne1
    July 13th, 2010 at 15:21 | #6

    This film piqued my curiosity. (Don’t click it. it’s yucky. But if you must…):

    In it, a straight man performing in gay porn is interviewed on the BBC. I wrote to a psychologist specializing in sexuality with a question. (I can provide the name of the psychologist upon emailed request, but I doubt she remembers the correspondence. However, if you pose the same question, I’m sure you’d get the same answer). I asked the psychologist if it is possible that the man is indeed motivated by the money and not truly a closeted gay man. She said it certainly is possible, because human sexuality is sufficiently fluid as to allow such changes from preferred conduct.

    But asking psychologists is not really necessary. If they were offering $15,000,000,000 instead of $1,500, I doubt you could find a man alive who would not be able to perform (religious and health concerns aside). Heck, for that much money (or equivalent inducement), I doubt that you would find anybody who was unwilling to perform with a dead Bactrian camel. And I doubt that you would find anybody willing to say that such a person really harbors secret longings for deceased even toed ungulates.

    Marty, the issue seems to be one of intrinsic versus extrinsic motivation. Nothing more.

  7. Marty
    July 14th, 2010 at 11:48 | #7

    Every gay man and every lesbian I’ve ever known has been perfectly capable of having good sex with a member of the opposite sex. Whether or not that’s their “preference” doesn’t change the fact that they can, and quite often do “properly engage the opposite sex”.

    Anyway, regardless of your preference and how or if you engage it, to make it so gosh-all important that you must tell your kid that he’s got no father — just an extra mother — is simply absurd. A cruel and unusual thing to do to a child.

    Every child (you and me included) is the result of the union of exactly one man and one woman. Your “preference” doesnt have a thing in the world to do with it.

  8. Arlemagne1
    July 14th, 2010 at 12:03 | #8

    I’ve met one gay man who was never with a woman. But he was a religious fanatic before he went gay, so he never tried it for religious reasons.

    Our mutual friend (also gay) thinks that guy is a bit nutty anyway.

  9. Chairm
    July 15th, 2010 at 23:17 | #9

    Would it be more clear to say that it is improbable rather than “it is ‘probably’ not possible”? Indeed, given Dr J’s reasoning, I’d say that it is implausible that government (on behalf of society, of course) can be neutral in marriage whether that be in terms of laws, regulations, court precedents, or social policy.

    Marital status is a relationship status, not a mere right to contract for instance, and as such it is a special status, or a preferential status. Society, through government, shows preference for the social institution into which people enter when they form the conjugal type of relationship.

    That societal preference is not based on private or personalized motivations of this or that person who shows up for a license or for this special status.

    The SSM campaign would use the special status of marriage as a vehicle for promoting — indeed for imposing — the proposition that whatever two men or two women do sexually together is the moral equivalent of conjugal relations. But the SSM campaign can’t take such a proposition to court as a real argument unless marital status is indeed deemed a special status that bestows societal approbation.

    Of course, the SSM campaign’s courtcentric approach is to demand protections, not special status, and to denounce special treatment based on marital status. That’s right. The arguments made are aimed at destroying the special reason for the special status of the social institution in our laws but also in our customs and tradiitons. The SSM argument self-destructs if its true aim is for approbation from society for the claimed moral equivalence of same-sexed sexual kinds of relationships with the conjugal relationship of husband and wife.

    Remove the special reason for special status and … Poof! … no justification for discriminating on the basis of marital status. And no justification, by proxy, for discriminating on the basis of same-sexed sexualized relationship types. Indeed the SSM argument is not really about marriage but it is aimed at destroying the social institution’s standing in society.

    In effect (if not in intention) the SSM argument is that moral equivalency is of paramount importance but also of no importance at all. Muddled in that direct contradiction, the SSM campaign promotes something quite different than the moral equivalency — and something quite differnt than SSM in its absurdly idealized form. What it actually promotes, in effect, is the deinstitutionalization of marriage via Government over-reach.

    This would require a total Government takeover of the social institution that stands between the individual (and family) and the powers of the governing authorities. That ought to concern people across the ideological spectrum — liberal, libertarian, conservative, religious and irreligious alike.

    This is what the SSM campaign promotes. And, when all the emotivism and the blatantly contradictory argumention is peeled away, what remains is a demand that gay identity politics trump marriage, trump the rule of law, trump constitutional jurisprudence, trump our form of self-government, and trump the well-being of society as a whole. The SSM campaign is repleat with statists and with neo-anarchists and moral relativists, but also features people who on other big issues are libertarian and conservative and liberal (in the classical sense). It is the supremacy of identity politics which ties them all together and helps explain why some fairly good thinkers, and some very good thinkers, on other issues seem to throw away their principles in favor of an SSM merger with marriage that would destroy the original SSM complaint about government arbitrariness and destroy the vaunted claim of a moral equivalency.

    So, from my point of view as someone who has been engaged in the marriage issue long before it became the “gay marriage issue”, the implausibility or the improbability or the probably not possible goal of Government neutrality on marriage is no surprise. The very attempt at neutrality would mean negating the special status of the social institution across society — not just governmentally but also culturally — and that, I think, is unprecedented in modern times. It would, I believe, usher in a regressive leap backwards to a time in human history when marriage was barely even a social institution with influence with which to meddle.

  10. Heidi
    July 17th, 2010 at 10:04 | #10

    Wow. You guys are too much. Happy to say that I don’t have to be paid to be with the woman I love. My desire just comes naturally. Being bisexual, I can have a relationship with a man, but I just fell in love with a woman and have no need or desire to look elsewhere. Besides, I made a commitment to her, and I am one who believes in monogamy and commitment. Hence, my desire to get married! But, for the record, she is a lesbian, and has been since she can remember, even though she didn’t have a name for it until she was older (her Southern Baptist parents sent her to therapy at 8 years old because they picked up on it–what a waste of money!). Being devoutly religious, she tried to “pray the gay away,” but that definitely didn’t work. She has NEVER had sex with a man. The thought of doing so makes her physically ill–it would be like rape to her. No amount of money could cause her to have sex with a man and degrade herself in such a way. So much for that foolishness…

    I too was the product of the union of one man and one woman. The man abused the woman and their children and everyone was happier when the woman divorced the man. My niece is also the product of one man and one woman. The man didn’t want her and the woman is incapable of caring for her, so, my same-sex partner and I stepped in to rectify the failures of that heterosexual union. But of course, it is so important to protect the ideal of one man/one woman that we must discriminate against same-sex couples, even though same-sex marriage will have no effect whatsoever on the choices of heterosexual couples. A little intellectual honesty would go a long way…

  11. JP
    July 18th, 2010 at 07:37 | #11

    Oh wow….I can’t believe the things I am reading….Ellen….Rock Hudson….they are actors and actresses!!!! So ok Tom Cruise kisses Cameron Diaz….he is paid to cheat on his wife and does so. So therefore all heterosexuals can get paid to cheat. This argument is ridiculous. So marty and co pay off the gay community to be straight! YOU HAVE CURED HOMOSEXUALITY!!!

  12. Arlemagne1
    July 18th, 2010 at 15:24 | #12

    JP, I think what you meant to say is that you cannot comprehend the things that you are reading. I did not claim to “cure” anybody or anything. I did not say that anybody should be paid to do anything. I just refuted the idea that certain behaviors are impossible for certain people.

  13. Chairm
    July 26th, 2010 at 14:39 | #13

    Heidi, there are related people who’d say pretty much what you just said. Are you in favor of abolishing the line drawn based on relatedness?

    It is interesting. Your views on third party procreation and your views on marriage coincide with the remarkable trend whereby related people (seperated by third party procreation) have found each other, felt sexual attraction, bonded, and made commitments that still do not make them eligible to marry.

    But your viewpoint, as per your many comments here, would make the case that siblings should be free to consent to marry each other for all the reasons you’ve been emphasizing. I doubt you’d own this. You probably will run away from it, instead.

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