Government Neutrality in Marriage is (probably) Not Possible
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.