In the wrangles over gay marriage, some conservatives are proposing a simple solution: Have the government just get out of the marriage business.
Small-government conservatives are saying, Why not just let people have any marital relationship they want? What business does the government have regulating marriage? Christian conservatives are saying, Let the secular world throw out or redefine marriage if it wants, we'll keep marriage as a distinctly Christian institution.
Colin A.P. Jones, an American attorney and professor at a Japanese law school, offers a "free market solution." Writing in the San Francisco Chronicle, he argues for the need to break up the "government monopoly" on marriage. Instead of one set of marriage laws that apply to everyone, he proposes using the model of corporation law. Marriage would become the formation of a corporate partnership.
"Couples entering into marriage," Mr. Jones says, "should be able to use a partnership agreement that is tailored to their own circumstances and aspirations, one that reflects the values and expectations that they themselves attach to marriage."
He further proposes establishing larger "marital corporations" consisting of like-minded couples who could set the terms for marriage according to their own beliefs. "A Catholic marital corporation would forbid its members from divorcing. Progressive marital corporations would allow gay marriage. Islamic or Mormon fundamentalist marital corporations could allow polygamy."
Mr. Jones does acknowledge the government interest in regulating marriage. Not all arrangements-such as incestuous ones-would be legal. Children's interests would be protected. Divorce would be a matter of dissolving the corporation. Those with strict anti-divorce clauses would exact a strong penalty.
"Exclusivity and the use of choice to define one's identity are at the core of modern consumer society," Mr. Jones concludes. "Extending this to marriage is only logical."
The problem with privatizing marriage is that marriage is not private. Nor is marriage a "legal fiction" constructed by the government. Nor is marriage the creation of the church.
Marriage is a function of God's creation. Seeing that "it is not good for man to be alone," God made woman-not another man, nor any other creature-as "helper," with whom he is to leave his old family to start a new one. The couple is to be "one flesh" and "be fruitful and multiply" (Genesis 2:18, 24; 1:28).
"What therefore God has joined together," said Jesus Himself, "let not man separate" (Matthew 19:6). God is thus the author of every marriage. (This text also makes gay marriage impossible, since God does not join together people in relationships He forbids.) Both marriage and singlehood are callings from God (1 Corinthians 7). The New Testament goes so far as to describe marriage as imaging the relationship between Christ and the church (Ephesians 5:22-33).
Though Roman Catholics and the Eastern Orthodox say marriage is a sacrament, Protestants do not, since non-Christians too can get married. Though it takes many cultural forms, marriage is universal, for believer and nonbeliever alike. Though God indeed establishes marriage, He does so through what Calvinists call "common grace" and Lutherans call "the order of creation."
Marriage is God's provision for the biological imperative: engendering children and caring for them. It is also God's provision for the cultural imperative: That we were not created "to be alone" entails not only the personal companionship of marriage but the formation of larger societies of which the family is the basis. So those societies, with their God-ordained governments (Romans 13), do have a legal interest in marriage.
But the state cannot change the reality by changing the law. Nor can churches. The liberal denominations that are performing homosexual weddings-whether or not state law allows them-are not creating marriages. Nor can individuals. A private romantic or sexual preference cannot overthrow God's design. Marriage itself, as God built it into His creation, cannot be revised.