Civil Marriage: The View from a State of Nature ? Public Discourse

Governments don?t legally recognize a certain type of relationship because they are suckers for romance; they do so because they are understandably afraid of the potentially destructive consequences of such romance.

In the now-famous interview with NBC?s ?Meet the Press? that precipitated President Obama?s public endorsement of same-sex marriage, Vice President Joe Biden asserted that ?all marriages, at their root, are about? the following question: ?Who do you love?? As contentious as the recent marriage debates often have been, both the advocates and the opponents of same-sex marriage might agree with the basic point of Biden?s assessment in affirming that something about marriage is more fundamental than politics. Whether this something is a basic right to marry the person of one?s choosing or the traditional institution of conjugal-procreative marriage, both sides agree that there is more to marriage than tax breaks and other legal trappings.

And they are undoubtedly right. After all, married couples usually commemorate their union by wearing rings symbolizing their commitment to each other and hanging framed portraits of themselves, their families, and friends?not by carrying around their joint tax returns and proudly displaying their marriage certificate on the mantle. Marriage is both a profoundly fulfilling human good and a legal contract; it partakes simultaneously of the sublime and the mundane.

The profoundly fulfilling and sublime aspects of marriage, however these might be characterized, occur apart from the intervention of politics; the mutual commitment to intimate life-long union, the raising of children, etc., could conceivably occur on the proverbial desert island (think of the Swiss Family Robinson), or at least within various forms of non-political community. Why, then, do we drape marriage in such drab legal garb? What, in other words, is the purpose of specifically civil marriage?

Although civil marriage is now commonly understood in the elevated terms characteristic of marriage?s more fundamental and profoundly fulfilling aspects, the purpose of civil marriage is, in fact, more in keeping with its sterile legality. Governments assign legal responsibilities and benefits to marriage, rather than to other relationships, to help mitigate the potentially destructive and tragic consequences of irresponsible procreation.

The View from a State of Nature?

An observation once made by Aristotle, and one that has long served as a guiding insight for the study of politics, will provide the key to our uncovering the purpose of civil marriage. In the beginning of his Politics, Aristotle asserts that ?he who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them.? This insight, used in various ways by ancient and medieval political philosophers, was manifested in modern form by Hobbes, Locke, and Rousseau, each of whom constructed versions of a hypothetical ?state of nature? that would have existed before the formation of political societies and governments.

Just as these political philosophers hoped to discover the legitimate source and essential purpose of politics by imagining away its existence and plausibly recreating its ?first growth and origin??thereby giving rise to most of our contemporary ideas about politics?so we will attempt to discover the legitimate source and essential purpose of the political and legal aspects of marriage, that is, civil marriage, by imagining away its existence and dramatizing the moment of its creation.

What, then, will the view from a state of nature show us that we don?t already know about marriage, and why should we care what it shows us at all? By dramatizing the logical connections between marriage?s more fundamental aspects and its mundane political ones in arguments about marriage policy, a state of nature perspective is uniquely suited to highlighting these shadowy and obscure connections.

If someone, for example, were to encounter a hammer for the first time and see it simply lying around, he might be able to form a plausible conjecture regarding the purpose for which it was made and is best suited. How much clearer would his understanding become, however, if he were granted a vision of the first hammer-maker sitting perplexedly in a room full of nails? In a similar way, by imagining a hypothetical situation in which the political-legal aspects of marriage do not yet exist, we may hope to discover their logical source and essential purpose.

In this hypothetical state of nature, we would still have what I have called the sublime aspects of marriage, its more fundamental components that occur apart from political intervention. In addition to the committed intimate relationships that are a basic element of marriage, we would also still have many other relationships that contribute in significant ways to the common good of the political community, such as ordinary friendships and other familial relationships. Imagining ourselves in this situation, then, how would civil marriage?the legal recognition and associated trappings superadded to existing committed intimate relationships?come into existence in the first place? What are the nails for which this particular sort of hammer would be fashioned?

Perhaps individuals in various relationships would pressure the government to recognize their relationships by assigning them a legal status that would entail both legally enforceable duties and some legal privileges?but why would they do this? Not out of concern for equality between different kinds of relationships, since all sorts of relationships would be equally unrecognized by the government in the absence of civil marriage. Nor, it seems, would couples or friends be driven by the need for legal validation of their particular relationship; in a situation of equal (un)recognition, such a motivation would never arise. Why should couples or friends in our state of nature care whether or not the government likes their relationship? While all people in relationships would surely insist upon the freedom to cultivate them free from unwarranted governmental intrusion as a consequence of their natural right to liberty, no one would care whether or not they received the government?s paternal blessing.

Since civil marriage wouldn?t originally arise in response to desires or demands of individuals in diverse relationships, the first move must have been made by governments. Why, then, would governments want to create something like civil marriage?

A first possibility might be the following: since certain relationships are of crucial importance to the common good of political societies, governments would try to encourage the formation and long-term stability of such relationships as much as possible through legislation. By assigning legal responsibilities and granting legal privileges to individuals in these relationships, governments might hope to protect and strengthen such relationships.

This reasoning is, however, exposed to at least a couple of difficulties, chief among which is the fact that most relationships of importance to the common good of society would be formed and flourish entirely on their own, regardless of political intervention. The value of such relationships to this common good lies, in fact, largely in the free commitment of each party in the relationship to the other. The more fundamental and sublime aspects of marriage would, in other words, persist in the absence of civil marriage.

Moreover, not only do committed intimate relationships, friendships, and other relationships of importance for the common good not need superimposed legal frameworks for their existence and stability; such an imposition might also be counterproductive, hindering and constricting the very relationships that these legal measures would be intended to promote. In this way, one can see an element of truth in the position of committed couples who decide against civil marriage; while this decision may, indeed, only be an excuse for avoiding the commitment associated with assuming this legal status, it may also reflect an awareness of the fact that legal trappings such as tax benefits and obstacles to separation don?t contribute to the relationship?s long-term health.

If governments wouldn?t use civil marriage to offer further, perhaps ultimately counterproductive support to relationships that are already self-supporting, perhaps they would do so to address social problems that can arise when certain relationships are left unregulated. While many relationships don?t cause any consequences that we might see as potentially problematic for society if left unregulated, one sort of relationship clearly does: sexually intimate opposite-sex relationships.

Personal Relationships and Social Problems

Left unregulated by the government, most consequences of relationships?such as warm, fuzzy feelings, mutual goodwill, and trust?will not become socially destructive; procreation, on the other hand, is an entirely different story. Procreation, from a political perspective, is a double-edged sword: while it is essential for the continued existence of any society (and thus of primary importance), it can also represent a significantly damaging and even destructive social burden. The problematic aspect of procreation, from a political perspective, consists in the enormous expenditure of time, expense, and care needed to ensure the survival and development of helpless children.

In our state of nature, characterized as it is by a total absence of marriage?s mundane legal aspects, procreation would be highly problematic. While some children would still be born to and raised by the couples from which they originated, many more would be at least partially raised outside of such relationships. More men would tend to father more children with multiple women, and many of these children would lack the care and support necessary to their development as human beings and, frequently, to their very survival. For all of the well-documented social problems that arise from irresponsible procreation in today?s political societies, and to which admirable efforts such as President Obama?s Responsible Fatherhood Initiative are directed, the situation in our state of nature would be far worse.

Since the purpose of politics is to look after the common good of society, this situation would call loudly for some effort on the part of government to address the issue of procreation. Mandated child support and welfare programs address the social problems associated with procreation only after irresponsible procreation already has occurred. By legally arranging incentives and penalties around intimate relationships, however, governments could hope to encourage existing couples to stay together, thereby channeling procreation?as far as is non-tyrannically possible?in a non-socially-destructive direction.

This, then, is the nail we have been looking for in the hammer-maker?s room, and the purpose for which something like civil marriage would come into existence in the first place. Governments don?t legally recognize a certain type of relationship because they are suckers for romance; they do so because they are understandably afraid of the potentially destructive consequences of such romance.

Even if civil marriage is now commonly understood to provide moral approval or emotional validation to couples who presumably would partake of the more fundamental, sublime aspects of marriage anyway, this is not the purpose for which it would have been made or for which it is best suited. This purpose is, rather, to encourage couples to stay together and procreate exclusively with each other as well as to facilitate various aspects of the joint life to which they have committed themselves, and thereby to help mitigate the social and personal tragedies brought on by irresponsible procreation.

Implications for Public Policy

If responsible procreation is the precise and essential purpose of civil marriage, a number of implications follow for public policy. First, we have an exceptionally clear answer to current debates regarding same-sex marriage. Since same-sex couples aren?t part of the problem to which civil marriage is an attempted solution, there is as little reason to apply civil marriage to such relationships as there is to extend welfare assistance to the rich. Civil marriage pertains to relationships, not the individuals who are in them, and its concern with relationships is limited to a particular byproduct that occurs only in the case of opposite-sex couples.

Second, it is clear that more sensible and active gate-keeping is needed to ensure that civil marriage continues to serve the purpose for which it exists in the first place. Such gate-keeping could include a reconsideration of no-fault divorce legislation, penalties for repeated remarriage, regulation of pre-nuptial agreements, or mandated pre-marital counseling.

The ongoing marriage debate should, then, be broadened to include not only the question of same-sex marriage but also the question of how civil marriage policy could be altered to ensure that this crucially important aspect of marriage?however mundane in comparison to marriage?s sublime aspects?continues to serve the purpose for which it exists. As long as there are nails still lying around, it makes little sense to use our hammer as a paperweight.

S. Adam Seagrave is an assistant professor of political science at Northern Illinois University.

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Source: http://www.thepublicdiscourse.com/2012/09/6176

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