James Kerian: It Takes More Than Mutual Consent To Make A Marriage


Just married couple, holding hands and walking in nature

Last week I wrote that because of the state’s responsibility to acknowledge property ownership, and because of the impact that marriage has on property ownership, the state must retain the ability to recognize marriage where it exists.  To remove that ability from the government is not to make the government neutral on the position of marriage.  It is simply to enforce on the whole country the view that marriage has no necessary/direct impact on property ownership.

The conclusions from last week’s column are premises for this one.  Once it is granted, however, that the government should continue to recognize marriage then the question that remains is what relationships should the government recognize as marriages.

Since the government’s recognition of marriage is required by marriage’s impact on property ownership, and since that impact is a result of the foundational unity of the spouses to each other, the government should recognize marriage where that foundational unity is present.  The primary way the government determines whether or not that foundational unity is present is to take the couple’s word for it.  That is as it should be.  It would be inefficient, ineffective and frankly rather ridiculous for the government to be testing/evaluating the relationships of couples either when they apply for a marriage license or when they jointly file their tax returns.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]This is not because we hate people who are sexually attracted to more than one person or to one of their siblings.  It is because the foundational unity that requires government recognition of marriage is not possible in these relationships.[/mks_pullquote]

But the government does not always take the couple’s word for it when deciding whether or not to recognize a relationship as a marriage.  It takes more than mutual consent to make a marriage.  Our laws do not allow the government to recognize a marriage in a relationship where that foundational unity is impossible.  That is why, regardless of what the Supreme Court decides at the end of this month, the state will continue to refuse to recognize the marriages of throuples or of couples that are too closely related or in which (we believe) one or both of the would-be-spouses are too young.

This is not because we hate people who are sexually attracted to more than one person or to one of their siblings.  It is because the foundational unity that requires government recognition of marriage is not possible in these relationships.  Social science data makes it undeniable that the government often recognizes marriage where that unity doesn’t actually exist just as our traffic data makes it clear that the government often recognizes someone as a safe/competent driver when that isn’t really the case.  But the government doesn’t recognizes throuples as married for the same reason it doesn’t give driver’s licenses to blind people.  In both cases we know that the recognition that is being asked for cannot possibly be merited.

The question currently before the Supreme Court of the United States is whether or not the US Constitution requires that every state government begin issuing marriage licenses to any two people (regardless of gender) who are of sufficient age, not too closely related and not already married to someone else.  Anyone who has read the constitution should be able to figure out that the answer to that is “no” but since we live in an era of judicial activism the real question on everyone’s mind is whether or not the states should issue marriage licenses to homosexual couples.  This, per the points discussed above, depends on whether or not homosexual couples can have the foundational unity that the government is reacting to when it recognizes a marriage.

The law currently holds (and the overwhelming majority of Americans believe) that prerequisites for that foundational unity are exclusivity, maturity, and a lack of consanguinity.  In North Dakota the law currently holds (and the majority believes) that another prerequisite of that foundational unity is gender complementarity.

This, again, is not because we hate people who are attracted to people of the same gender (there are a number of people I am tempted to hate but so far as I know none of them are homosexuals).  This is not because we believe homosexuality is immoral and we want our moral code imposed through state law.  There is a long, long, long list of things that I believe are immoral but that I do not want to see made illegal.

I support North Dakota’s current marriage laws because there is more to marriage than love, support and sexual attraction.  There is unity, a deep foundational unity.  That real unity (and its impact on property ownership) is why the government recognizes marriages in the first place and it is not something that can exist in just any relationship.  There is wide consensus that it is only possible in the absence of consanguinity and in the presence of exclusivity and maturity.  There is plenty of evidence from neural science, psychology and (for many of us) our own experience of marriage that indicates that gender complementarity is equally essential.