The recent veto by Georgia Gov. Nathan Deal of “religious liberty” legislation has put a similar Louisiana bill, HB 597 by state Rep. Mike Johnson, in the spotlight. The Louisiana Legislature should reject Johnson’s bill, which would prohibit discrimination against organizations and individuals for refusal to participate in an event related to a marriage that’s against their religious beliefs. Instead, Louisiana should exit the business of marriage regulation altogether.
Removing state involvement became the logical step last summer, when the U.S. Supreme Court ruled unconstitutional the ability of states to define marriage as strictly between a single man and a single woman. That emotion-laden decision in Obergefell v. Hodges made the Court’s 1857 opinion in Dred Scott v. Sandford — which tortured the Constitution to prevent Congress from denying the existence of slavery and pushed the nation into war — look like jurisprudential genius. As conservative writer David French perceptively noted, in Obergefell the majority’s core issue was “love, and the law can’t fight love. (The) opinion was nine parts romantic poetry and one part legal analysis (if that).”
This intellectual mishmash obscured and avoided the question of why government should regulate marriage, a contract between individuals, in the first place. Such intrusion becomes justifiable only when government awards some benefit to those who marry on the assumption that marriage improves society. Otherwise, regulation intrudes only on those wishing to enter into marriage and/or privileges them at society’s expense.
Until last summer, that justification existed in the case of traditional marriage. The state had an interest in encouraging marriage, through providing benefits such as favorable tax treatment and reduced legal hassles for married persons because that arrangement advanced procreation within the best environment for raising children. Simply stated, the only marriages that could create children were those of people of opposite sexes, and marriage increased the chances of raising children with more than one involved parent.
Last year’s decision changed that. Now, states must subsidize arrangements that, by definition, cannot contribute to procreation.
In Louisiana, the state should cease parceling out tax benefits to people simply because they marry. It could continue to offer such benefits to families with children so that any arrangement — single-parent, multiparent, different-sex, same-sex — may receive this assistance.
Additionally, any other legal privilege or shortcut individuals enjoy from the state of marriage should be erased. Instead of having to obtain a parish marriage license, two or more people could execute with clerks of court legal documents provided by the state that convey the same legal rights that spouses have currently, regarding each other and any children. Marriage outside of government supervision would continue — through religious solemnizations, civil ceremonies or however — but government neither would promote nor inhibit it.
Policymakers would have to adjust laws in the area of successions, minors and state employee benefits, and divorce lawyers would have to find other avenues of legal practice. But none of these changes pose a substantial procedural or professional obstacle to this change.
When it included only a single man and a single woman, marriage helped the state and deserved government aid, in exchange for state oversight of it. But the Obergefell redefinition killed its utility for the state and any rationale for its regulation. Louisiana should not let the corpse linger but bury it as a legal concept.
Jeff Sadow is an associate professor of political science at Louisiana State University Shreveport, where he teaches Louisiana Government. He is author of a blog about Louisiana politics atbetween-lines.com, where links to information in this column may be found. When the Louisiana Legislature is in session, he writes about legislation in it at.laleglog.com. Follow him on Twitter, @jsadowadvocate. Write to him at email@example.com. His views do not necessarily express those of his employer.