My first year moot in Law School was about same sex marriage, which at the time was still not legally recognized throughout Canada, although it now has been for ten years, as it has been in all of the U.S. now for a week or so. So, naturally, it's a topic I've had many years to think about. But long before law school, I'd had reason to contemplate the state's role in marriage, because my wife was not a Canadian citizen when we married, which meant we had to jump through a significant number of hoops to be permitted to live together here. It was that experience (as well as the awareness that even in this relatively enlightened era, "interracial" marriages such as ours do not meet with universal approval) that led me to formulate the theory I'm about to put forward here.
What is marriage? I'm going to suggest that it's a kinship relation, a pre-legal fact about the sort of relationship that might exist between two people. Put aside for the time being all the moral baggage about living-in-sin if your union is not officially celebrated by an ordained religious authority, and observe simply that in most societies, there's a tendency for adults to pair-bond, to form more-or-less stable monogamous domestic partnerships, often (but not always) associated with raising children. These relationships, whatever you call them, exist independently of any legal recognition, just like any other kinship relation. My son is my son, and no Act of Parliament or judicial fiat brought that fact into existence. It is, as I say, a pre-legal fact.
Now, unlike most other kinship relations, marriage isn't usually something you're born into. It's something that generally comes into being once one is an adult, and there's often a fair amount of choice involved. Perhaps because of this, we seem to want to have some kind of punctual moment to observe when that relationship is recognized by the community, and so we celebrate weddings. Such things often become ritualized, and humans love any excuse for a ceremony and a feast, but while the ceremony might formalize things, the actual underlying relationship of the couple can and usually does exist regardless of any such observances.
To be sure, the relationship itself is very much the product of the couple's own beliefs and attitudes about it, which means that if the couple believes a formal wedding ceremony is an essential part of becoming married, without which they are not married, then of course they're not married without the ceremony. But it's important to note that it is their belief, and not the ceremony itself, which is crucial; if they believed otherwise, the wedding ceremony would be a mere formality celebrating a relationship which already existed.
In other words, whether or not a couple is actually married has nothing essential to do with the state or the church, or indeed anyone else. The ultimate authorities on whether I am married or not are me and whoever I purport to be married to; if we both agree the kinship relation exists, then it does. (It's rather like a contract this way, and although many legal traditions actually define marriage as a contract, I personally think that's misleading, for technical reasons I'll not get into here.)
However, kinship relations, although they are not created by law, very often have important legal consequences. Family members have responsibilities towards one another that are recognized and sometimes enforced by law (although these are often only enforced when a relationship breaks down in some way), and so there is a legitimate state interest in documenting those relationships. Consider birth certificates: you don't need a birth certificate to be born; it's just a really convenient way of establishing the particulars of where and when, because these can be legally important facts, and it may not be convenient to have your mother or her obstetrician swear an affidavit every time you apply for a credit card or driver's license. Similarly, the state can (and ought to) issue marriage certificates to document the particulars of a marriage.
My point, then, is that the role of the state is marriage is very simple and very limited: to keep a record of whatever kinship relations may exist, for the smoother administration of whatever legal processes might be affected by these relationships. Who should be the next of kin for medical consent? Who should inherit? Who is responsible for children's well-being? How should property be divided if and when a partnership dissolves?
The reason there's such controversy about same-sex marriage (or as there once was, interracial marriage) is because we seem to think that it's the state or the church that actually marries us, or gives us permission to marry. And while that may be so in a doctrinal sense for some churches, and in a vestigial legal sense for the state (which issues what we still call marriage licenses, after all), it is neither necessary nor a realistic reflection of the relationships themselves, which as I have said exist quite independently, with or without our moral approval.
And so, given this understanding of the nature of marriage and the state's role in it, I have to confess that my happiness at seeing the U.S. Supreme Court finally come around is tempered by a certain degree of exasperation that this should even have been an issue to begin with. That Canada figured it out only ten years earlier isn't really something that fills me with patriotic pride, either.
I'm pleased, certainly. Yet at the same time, I have cultivated an attitude of principled indifference as to whom you might choose to marry; it feels a little bit strange to be celebrating the recognition that something's none of my business.
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