The Constitutional amendment which would have banned gay marriage was defeated in the United States Senate today, despite President Bush’s public calls in favour of it. Bush said that the institution of marriage needs taken out of the hands of ‘activist judges’ and put back into the hands of the American people.

Except that there are thousands of gay couples who would like to be married and, moreover, who consider themselves ‘American people.’ While this may be a shock to some conservatives, an even greater thunderbolt will be that they’re not the only ones who were opposed to the amendment. Although a majority of Americans don’t agree with gay ‘marriage’, an equal majority opposed the constitutional amendment banning it. In short, most Americans would appear to be compatible with a libertarian solution to the problem, in which the state not only is deprived of the ability to discriminate against the right of gay people to marry, but in which the state is deprived of the ability to define marriage in the first place.

Marriage is a traditional institution, so people have expectations of what defines it. But it’s worth noting that expectations change, and have done, for example in respect to how many women a man should be permitted to marry simultaneously. Our definition of marriage has changed before, numerous times. Most of the same people today vehemently fighting a change of definition that would permit gay marriage are themselves subscribers to a prior change of definition which rejected polygamy (the Christians were a minority in that regard, since most societies were polygamous). Nevertheless, there are many people who aren’t ready to accept gay marriage, for moral reasons.

If you identify with that, then read on. Because a libertarian view is that there is absolutely no need to redefine marriage in order to permit gay ‘marriage’. There are two separate parts of any marital agreement:

(a) the process of making a moral promise to another individual, possibly including a promise made to God, and

(b) a legal contract enshrined in law predefining the terms of a marital bond.

As far as the government is concerned, marriage is a legal contract involving a marriage ‘license’ which two individuals consent to sign when they get married. The details of their moral pledge are irrelevant to and separate from that legal contract. For example, a couple may promise to be sexually exclusive for the rest of their lives. But the government doesn’t care whether that’s the case or not. The concern of the state is the legal contract, which refers to a number of provisions of marriage which are predefined in law (for example inheritance rights, hospital visitation rights and immigration policy). The first part of the marital agreement is a matter of morality, not law. The second is a lawful contract, not a moral promise. One part concerns the law, the other part does not.

Therefore, morality in the matter of marriage is not represented legally at present anyway. What each couple decide to vow to each other on their wedding day, while their guests sit in restless anticipation of the free food, is almost entirely a matter of personal preference and individual determination. So moral considerations, of which sexual orientation is an example, are not relevant to the terms of the marriage contract as it exists in law. It is, in short, none of the government’s business who creates such a contract and with whom they create it (same sex or opposite sex); it the remit of government simply to honour the contracts as they exist. Morality is the domain of the individual, who has the right to decide for themselves what they believe to be right and wrong, while legal contracts are rightly enforced in law, no matter who they involve.

Reasonable, sensible people who consider gay marriage immoral should have no problem with the idea that all legal contracts should be honoured by the system, and it therefore follows that they should have no problem with the idea that gay people could enter into such contracts. Thus such a person could endorse the civil rights which permit gay ‘marriage’ while still regarding gay marriage to be immoral (if that is what they believe).

For those who still disagree, I ask what it is that makes this kind of private decision different from any other? Matters of personal morality are the domain of the individual living in accordance with his or her own belief system; they are not within the sphere of the law or the state. I profess to believe that a number of things are immoral without wishing to make it illegal to do them. Honking one’s horn in a drive-through, for example. I may consider adultery immoral, but I don’t want to lock someone up for cheating on their spouse. I am separating morality from legality, and for good reason. Why should the issue of homosexual ‘marriage’ being recognised as the lawful contract it is?

The solution may be to get the government out of the marriage business completely.

Perhaps today’s rejection of a constitutional amendment seeking to involve the government more in the definition of marriage is a good sign. The U.S. Senate doesn’t like the idea. The American people don’t like the idea. Maybe we should end this debate with the only moral, workable solution to the problem: honour the wishes of individuals themselves on the decisions which affect their own lives.
It’s not about whether to allow or disallow gay marriage, in the moral sense. It’s about whether it’s actually anybody else’s business in the first place.