I love the concept (and reality — abstract as it is) of a social contract, and its implication: that society makes rational, deliberate decisions in crafting policy to balance the needs of a society and the individual. It’s the way things should be done.
But that’s not what happens.
That’s certainly not what happened with marriage policy in the US (or, for the matter, most of the world). We inherited a corpus of marriage law and tradition from the English, and we’ve been amending it ad hoc from day one. But who says that we can’t look at our marriage laws through a more objective lens?
If this were a court, I would say that the plaintiffs are those who maintain that society has no right to meddle in the affairs of the heart. The defendant, of course, is society. In this court (since I get to set the rules), tradition has the presumptive benefit. Our traditions have survived because at some level they work… and those wishing to extract themselves from tradition have an overwhelming burden of evidence to meet.
I don’t plan on holding the trial now, but wanted to sketch-out the environment where I’m making the arguments which follow…
The argument that the state has no compelling interest in affairs of the heart confuses the rhetoric of a campaign for actual logic. As I mentioned in my last post, it’s difficult to discuss marriage in most instances because we conflate marriage as love with marriage as a social contract and marriage as a religious ceremony. And while society may have a few, limited stakes in marriage as love and marriage as a religious ceremony, the real issue is whether the state has compelling interest in marriage as a social contract.
If, indeed, marriage can be construed as a social contract, then the state has a de facto interest — its own.
So what’s the shape of this social contract? What are its bounds, its motivations? What are the bargaining chips at play?
Central to the social contract is the role of bearing and raising children. This is an important argument for a compelling state interest because any entity is, necessarily, interested in its own continuation… and a society that does not have or raise children has bleak prospects indeed (the counter example of the Shakers noted)
Of course, this does not mean (despite the series’ title) that the state is only interested in couples who are currently bearing or raising children. Couples that cannot bear children can certain raise them… and couples not doing either currently, may choose to do so in the future. Beyond that, the animal kingdom offers us another reason: un-coupled individuals of breeding age pose numerous problems to the herd/pack/tribe/society… and it’s best to get them into a couple or out of society. Since un-coupled individuals are an asset — and may not remain un-coupled indefinitely — society is loathe to oust them. And finally — and this is where marriage as love comes into play — to discern between “productive” couples or couples that may soon become “productive” and those that will never be productive would require a level of intrusion into the private lives of its citizens that would require the expenditure of resources on an enormous scale — and would violate other, myriad tenants of the social contract.
Marriage is useful from a state viewpoint, with regards to the bearing and raising of children, as a tool of regulating the activities of its couples — doing the best it can to ensure that children are raised well (i.e.: do not become criminals, or wreak havoc… and in a world that now views a nominal amount of social welfare services normative, do not become a burden on the state financially).
A second state interest in marriage is a result of our natural inclination to pair-off: the sharing and distribution of common property, and the attendant disputes which arise.
A third state interest in marriage is marriage itself… because of the two preceding interests, the state necessarily has an interest in the institution itself — ensuring that it is well regulated, that its safe for both parties to enter into, that it is not entered into lightly, and that there is a safe way to leave the arrangement should the need arise.
I am certain that readers may think of other state interests (please let me know in the comments!), but I can’t think of any others that do not fall within these to broad areas.
And the bargaining chips? Well, in exchange for a small fee, some paper work, relinquishing a modicum of privacy, remaining faithful, and relinquishing the right to treat children as personal property, the state promises to make being married safe and secure and to help us raise our children. There are plenty of caveats… but that’s the basic premise.
I believe I’ve outlined the salient points in the state having a compelling interest to get involved in what many lay persons consider a “personal” matter.
Of course, with a vector of regulation and incentive opened, its hard (darn-near impossible) for the state to refrain from using the vector for unrelated state business… which is why the discussion of the “1800 perks” of marriage is so hard to have, as so many of those perks aren’t germane to the state’s interest. But that’s a discussion for another post in the series.
To summate: the state has a compelling interest… but it could be doing a better and more transparent job at executing on that interest.
NEXT INSTALLMENT: Shooting the Messenger