The Supreme Court, in Obergefell v. Hodges, etc., said on Friday (June 26) the gender of marriage partners will no longer matter. Two days later (June 28), Senator Rand Paul (R-Kentucky) proposed, on the pages of Time, to abolish marriage licenses. The senator did not have all the facts. Furthermore, he has not answered all the questions we should ask. Those questions touch on what we expect of a government, and where children stand.

Rand Paul: get government out of the marriage business

The senator’s Time piece sets out, in detail, where he stands. First, federal courts should never have ruled on marriage. “Our founding fathers went to the local courthouse to be married, not to Washington, D.C.,” he says. He went further: he does not care to register his guns or his marriage in Washington. Nor, one supposes, in any federal court. Justices Antonin Scalia, Clarence Thomas, and John Roberts quarreled with the majority’s reasoning. Senator Paul said the court lacked subject-matter jurisdiction.

But what result does he want to see? Senator Paul regards marriage as a contract. (The late Spencer Tracy memorably said that to Katharine Hepburn in their classic motion picture, Adam’s Rib.) And consenting adults should have a perfect right to draw up any kind of contract. So if roommates of the same gender want to share bed as well as board, let them. If they want to agree mutually to leave their real and personal property to one another in their last wills and testaments (and execute their estates), sign apartment leases together, open joint bank accounts, and whatever else, let them do that, also. Why, he then asks, should any two persons living together, of the same or opposite genders, need a license from the State to enter into such a contract?

The senator correctly notes: the Senate of Alabama voted last month to pass a bill to abolish marriage licensure in that State. Instead, any two people considering themselves married could draw up a contract. They would then go to the local probate court and record it. The senator did not know this: the Alabama House killed the bill in committee on June 3. The Montgomery Advertiser has the details.

Those details include arguments Alabama House members made against the bill. Representative Matt Fridy (R-Montevallo, Ala.) made an especially specious one. “We don’t tear down a fence until we know why it was built,” he said. Say what? Every student of history knows where marriage licenses came from. Daniel Waechter, former webmaster of privatizemarriage.org, advocated for this nearly five years ago. George Washington, he reminded his readers, did not get a marriage license. Marriage licensure did not exist in the United States until after the War Between the States. Then, the States licensed marriage so they could stop two people of different races from marrying. Then in 1923, the federal government passed a Uniform Marriage and Marriage License Act.

That made marriage a federal matter. And that, more than any other single issue, let Mr. Justice Anthony Kennedy argue as he did. Waechter said bluntly: marriage licensure benefits only the government, “to help them keep track of us and keep [some] of us from marrying at all.” So if Rep. Fridy wants to know who built the fence and why, let him use any Internet search engine, then use the Wayback Machine. Or check on his own State’s history, and that of any other State in the Union.

Today, Senator Paul reasonably asks:

What does government convey along with marriage, and should it do so? Should the government care, or allocate any benefits based on marital status?

Sadly, Senator Paul does not answer the questions he raises. Let us try.

Where the law now stands

At common law, under the Constitution, and by statute in most jurisdictions, a marriage partner:

• Acts as an attorney in fact if something incapacitates the other partner. An attorney acts for another. An attorney in fact acts outside of court. Such a person signs consents for medical treatment, and either grants or refuses consent to perform an autopsy if the other partner dies.
• By default, inherits the bulk and residue of the partner’s estate. If you don’t make a will, your spouse inherits, then your children, then your parents, then your further-out blood relatives. And if you try to cut your spouse out of your will, the spouse might contest the will on that ground.
• May refuse to testify against the other partner in a criminal matter.

Besides all these things, a married couple:

• May adopt and raise other people’s children.
• File joint or separate income-tax returns with a standard deduction less than the double of the standard deduction for a single adult.

Any two (or even three or more!) roommates, whether they share bed or not, may agree among themselves today to act as mutual attorneys in fact, and to leave their property to one another in their wills. Americans for Fair Taxation have one way to make the tax issue go away: tax consumption, not income. (Ayn Rand, for whom Rand Paul’s parents named him, has another idea: let people pay for police and military protection, and to support the courts, by buying lottery tickets or otherwise paying of their own free will.)

That leaves two other questions no one has answered.

Spousal immunity

Love and Marriage. Photo: Jim Hammer, CC BY-SA 2.0 Generic License

The Constitution of the United States (Amendment 5) already forbids the government to compel someone to testify against himself. Courts at all levels have long held that the government may not make a husband snitch on his wife, nor the wife on her husband. Shall the government now write an “Anti-snitch Act” to forbid its officers to compel anyone to testify against anyone else? Or do traditional husbands and wives risk losing the immunity they already enjoy against having to testify against one another?

Spousal immunity recognizes that when you marry, your spouse is you in a criminal court. So if the government cannot make you snitch on yourself, it cannot make your marriage partner snitch on you. For when you share bed, you also share your deepest secrets.

The courts, and our legislatures, must now wrestle with the entire question of convicting someone on the testimony of a non-married friend, after a court jails said friend for contempt of court when he refuses to snitch, or threatens so to order. James Madison already showed he would sooner accept a guilty man walking away free, than convict someone on evidence the government somehow “sweats out” of him. That goes for that most intimate kind of friend we call a spouse. Does it also hold for any kind of friend? Shall society now pour such contempt on “snitches” that it would sooner see a murderer escape confinement or execution?

Raising Children

One must ask: why do same-gender roommates sharing bed even want children around? The answer–and whether the government ought to allow it–depends on two other questions. Libertarians have grave trouble with both.

First: do they even recognize the concept “minor”? As in forbidding sales of cigarettes to minors, jailing any minor who buys, tries to buy, or drinks alcoholic drinks (“adult drinks”), or drives around with them in his automobile. Or forbidding an adult to act intimately with a minor. Rand Paul mentioned consenting adults. But minors, in any household where two members of the same gender share bed, also share in that relationship. Because they cannot fail to know what happens behind a certain door when those two people close it.

Who speaks for minor children? We call them “minor” for a reason. Some adult must speak for children. They cannot protect themselves in the eyes of the law. None but an anarchist would even deny a duty of government toward children in general. But libertarian theory has never dealt adequately with children. As long as the children stay in the family that produced them, libertarian theory has no problem: the parents stay in charge. But what happens when both parents die? Libertarian theory seems to emancipate such children. Anyone can surely imagine any number of absurd scenarios.

Second: is a homosexual born, or made? Biological behavioral determinism informs the common argument of “gay activists”: “Leave us alone! We were born that way. We can’t help it. And we could not possibly corrupt any children no matter how hard we tried.”

But Joseph L. Farah at WND reports what homosexuals say to one another when they think no one can overhear. The men, at least, tell tales of adult men molesting them as boys. Some admit they went on to molest boys when they became adults.

That shows: God made men and women. Adult men and women with twisted desires, made homosexual children.

Or one might develop homosexual tendencies another way. Suppose the same-sex parent did not give the child the love any parent ought to show? Neglect can work a harm just as grave as the positive harm we call “abuse.” Watch this video of James Obergefell, the lead plaintiff. Listen carefully to the cadence of his words. Do you not hear the voice of one who didn’t get a father’s love? And who now looks for love in the wrong place?

So: dare we risk placing children with same-sex roommates sharing bed? No one has asked Senator Paul that question. He did not think of it himself.

But the American College of Pediatricians did. (Let us not confuse them with the American Academy of Pediatrics, the mainstream professional group for children’s doctors.) They scathingly denounced the court, according to the site Eagle Rising and Breitbart.com. “Same-sex marriage deliberately deprives the child of a mother or a father.” That, say the doctors, brings harm. They set forth clinical evidence to make their point. They reject the notion that homosexual parenting can bring good, not harm. They pour contempt on studies saying children can grow up just as well with two “fathers” or two “mothers” as with a mother and a father. “All but a handful of the studies cited in support draw on small, non-random samples which cannot [truly represent] the same-sex population at large.” And: no one listens.

Dr. Michelle Critella, President of the College, called the Obergefell decision “a tragic day for America’s children.” Breitbart quotes her thus:

The SCOTUS has just undermined the single greatest pro-child institution in the history of mankind: the natural family. Just as it did in the joint Roe v Wade and Doe v Bolton decisions, the SCOTUS has elevated and enshrined the wants of adults over the needs of children.

How about that, Senator Paul? Shall the government let any two, or three or more, “consenting adults” “contract” to raise a child? Shall society throw up its collective hands and “emancipate” any orphan child? Does that mean we treat said child as an adult, and recognize for that child the right to vote, drink adult drinks, or sign contracts? Including a contract to let any one, two, or three adults “raise” him or her?

Anyone can see the logic. Marriage means the authority to raise children. Though a government may privatize marriage, government may not entirely privatize the authority of two adults, of same or opposite genders, or for that matter three or more adults, to raise children. A libertarian might say, “Emancipate him or her!” And when they do that, they nullify every statute defining as rape any intimate relations between adult and child. “Jailbait”? Oh, how square.

In sum

Senator Paul started a debate we must have. But he clearly has not given the matter enough thought. The government might give consenting adults the means to act as mutual attorneys in fact, and leave property to one another in their wills. The government can abolish a tax code that treats married people differently from single people. The government can even decide never again to compel any person to testify against another person, apart from, above, and against his free will. Let the government do this, and four of the reasons for government to stay “in the marriage business” go away.

But the government cannot lay down its inherent responsibility toward children. Not without erasing any distinction between the concepts “minor” and “adult” in the eyes of the law. The Supreme Court made total hash of the relationship between the government and minor children everywhere.