The State’s Role in Marriage (Part 1)

A possible Conservative victory in the upcoming federal election could mean social policies favouring a traditional “family” ideology: Where men are men and women are housewives and sexual and reproductive freedom is set back half a century.

It’s an outcome too depressing to be worth discussion.

Instead, I want to talk about one aspect of Canadian social policy. During a time when our would-be leaders seem incapable of imagining any real transformations in Canadian society, I’m going to suggest a policy change that I think is genuinely worth considering.

Ironically, although I have no preconceived notions about minimizing government involvement in social life, this is one case where I would advocate getting the state out of our personal lives.

I’m talking about marriage.

In this week’s column and next week’s, I’m going to talk about the laws that regulate marriage and the privileges that marriage confers. I want to suggest that we should consider taking the state out of the marriage business.

First, let’s look at the current controversy about marriage. Despite some recent progress in Canada, the Netherlands, and Massachusetts, marriage laws in most jurisdictions still require that women can only marry men and men can only marry women.

It’s a peculiar law, when you think about it.

As Professor Les Green of York University pointed out in a recent lecture, most current marriage laws appear to discriminate on grounds of sexual orientation, but in fact they really discriminate on grounds of sex.

Although these laws prevent lesbians and gay men from marrying a person of the same sex, they do not prevent gays and lesbians from marrying altogether. After all, a lesbian can marry a man; a gay man can marry a woman. I know of a case where, for practical reasons, a lesbian married a gay man.

So gays and lesbians are already able to marry. Religious scruples and state surveillance have not prevented it. There is not – and should not be – a test of sexual orientation before marriage.

For those reasons – and in addition to the sheer injustice of traditional marriage laws – it just seems irrational to prevent people from marrying a person of their own sex.

A letter to this paper recently claimed that scandalous views like mine lead to horrible things. “If we open the doors to other definitions of marriage, where do we draw the line?” he wrote. He predicts that same sex marriage will lead to sodomy, bestiality, pedophilia, and polygamy.

This is a typical slippery slope argument: If you legalize X, then it will inevitably lead to the legalization of Y. But the validity of a slippery slope argument very much depends on how similar X and Y are.

No thinking person could regard same-sex marriage, sodomy, bestiality, pedophilia, and polygamy as all being similar and all being equally justified or unjustified. Very different arguments apply to each.

For example, sodomy is not illegal in Canada. And provided it takes place between consenting adults, I can’t see any reason for sodomy to be made illegal. It’s no one’s business except that of the participants.

I have news for the right-wing sex police: Sodomy already occurs, whether or not same-sex marriage is legalized. Anyone who thinks sodomy is confined to gay men is pretty naÏve.

Do right-wingers want police officers invading the bedrooms of married heterosexuals to check on their activities?

But what about pedophilia? By its very definition, it involves sexual activities between an adult and a young person beneath the age of consent.

In deciding whether certain sexual activities should be legal, the minimal criteria must include choice and autonomy. Pedophilia means preying upon young people who are vulnerable to abuse and harm by adults and who are not yet able to make an autonomous choice about sexual activities with adults.

For that reason, pedophilia is not even remotely on a moral par with same sex marriage. The latter involves a consensual contract between two adults, while the former is void of consent on the part of the victimized child.

The illegality of pedophilia is intended to protect children from sexual predation. Since same-sex marriage is consensual and pedophilia is non-consensual, the legalization of the former is entirely unconnected to the legalization of the latter.

So there are compelling reasons to outlaw pedophilia but not to outlaw consenting sexual activities such as sodomy or consenting marriage contracts between two adults of the same sex.

But why does the state continue to regulate marriage at all? Next week I’ll talk about the material benefits the state confers on those who are married. I want to suggest that we need to rethink the ancient practice of confining legal recognition and privileges to marriage and marriage-like relationships.

Read Part 2 of this article.

©2004 Christine Overall – a feminist and a professor of philosophy at Queen’s University, Kingston, ON, Canada.