Skip to content
Link copied to clipboard


THE RECENT announcement that Mayor Street has agreed to preside over a same-sex commitment ceremony is likely to please local liberals and anger local conservatives.

THE RECENT announcement that Mayor Street has agreed to preside over a same-sex commitment ceremony is likely to please local liberals and anger local conservatives.

While I join my fellow conservatives in opposing abortion and affirmative action, I disagree with them in their opposition to gay marriage - and for the same reason that conservatives usually trumpet in other situations, namely, limiting government intrusion into people's lives.

Like most people, I always just accepted the fact that a couple needed a license from the government to get married. It never occurred to me to ask why.

I can understand the reason for a driver's license, or a license to practice medicine or law. There are many things people do that affect public health or public safety, and for which a license should be required. Hiring oneself out as a plumber, electrician or food server comes to mind.

But why do two people need a license to get married? If you think about it, you'll might come to the conclusion that government can't avoid being involved when two people decide to get unmarried. A divorce usually raises a number of legal issues such as property distribution, and child custody, to name two.

And therein lies the answer to the question of government involvement. Marriage triggers a relationship between two people that creates rights, responsibilities and legal obligations. Without it, two people are just two people, each with separate rights, benefits, and obligations. That changes when those two people marry, and will change again if they divorce.

In order to trigger that special relationship from which legal ramifications follow, the law imposes some requirements. Typically, that means a license from the state and a commitment ceremony before witnesses.

Nothing I have said, however, justifies government intruding into the decision of two people to commit to marriage. Most of us would bristle at the notion that government could prohibit two people of different religions, ethnicities or races from marrying.

Today's government has vast authority over us. It taxes our income and wealth. Regulates what we do with our property. Used to induct us into the military. Can decide what we have to pay our employees.

But we have over the years denied to government the authority to dictate our religious beliefs, censor our speech, determine our political affiliations and with whom we may associate.

Conservatives often speak out against gay marriage out of a concern for children. It is a legitimate one. Liberals and conservatives both support protecting children from harm or abuse, even at the hands of their parents.

Government interference in these matters is usually justified only when there are marital or family disputes that bring the matters before the courts.

BUT EVEN OUR concern for children has limits that neither liberals nor conservatives would favor exceeding.

Most of us would probably rebel at having government intrude into our homes to keep parents from smoking, despite the effect of secondhand smoke on kids. Nor would we support the idea of government intruding into our homes to monitor the values we teach our children, even when those are values that most of us would find objectionable, such as ethnic supremacy or religious bigotry.

Most religions don't favor gay marriage, but government recognition of it doesn't force them to. Many religions look with disfavor on interfaith marriages, but government doesn't compel any clergyman to perform them. Nor should gay marriage be legalized, would any religion be forced to accept or any clergyman compelled to perform it.

The economic burden on government that results from the benefits that government confers on married couples would be no greater for gay couples than for heterosexual ones. Nor is there any reason that the obligations imposed on married couples toward each other and to children not be imposed on gays.

The decision to accept the benefits and obligations of marriage is best left to the couple themselves. To let government restrict the selection of a spouse on the basis of race, religion, ethnicity or sexual orientation is to let government intrude on one of the most intimate decisions we can make. Conservatives should be the first to deny government that authority. *

Lurie is a retired Villanova law professor. E-mail him at