Compelling Interest

We live in a society that prefers a government with a "hands off" role. We thrive on individual liberty. That is, "Don't mess with me ... unless you have to." It's called, in legal terms, "compelling interest". There must be some genuine concern for society in general if the government is going to intervene. So, if a foreign military is going to invade, there is compelling interest in the welfare of the people for the government to form an army and defend the country. Reasonable. As it should be.

So the government has a compelling interest in perpetuating the nation by passing laws against, say, murder. Murder kills off people. People pay taxes and perpetuate the country. Killing people off would be a detriment to perpetuating things, so there are laws against murder. Not too hard to follow. The government needs to carry out these things of compelling interest such as roads for commerce and power for living and all this, so they have taxation to pay for it. Not really crazy at all. There are lots of things about which the government has a genuine compelling interest that requires them to intervene.

So, what about marriage? They've now decided to shred the definition and stitch together a new one. The reason for the case against DOMA going to the Supreme Court was that a woman whose female friend died was facing loss of federal benefits that married people would have received. Okay, fine. So it begs the question: Why does the government offer federal (and state) benefits to married people that they do not to unmarried people? (And there is the nagging question on the side about all those unmarried-but-cohabiting folk who face the same problems. But that's a separate question.) The GAO, the Government Accounting Office, lists over 1,000 federal benefits of marriage, including automatic next-of-kin status, social security death benefits, tax exemptions, and on and on. So, I ask, what is the compelling interest of the federal government for marriage?

Well, first, there is the obvious aspect of procreation. Opposite-sex couples have the potential of producing offspring. Without offspring the society eventually ceases to exist, so producing offspring is a compelling interest to a society. But merely producing a litter isn't the only concern. You want these subsequent generations to be functioning, productive members of society. Everyone knows from experience and social studies that the best environment for children to grow is in a loving family consisting of a married mother and father. That's just the way it is. So encouraging this would be beneficial to any society.

"Oh, now, see? You're playing the 'procreation card'. So you'd favor banning marriages of infertile people or couples unwilling to have offspring?" That's what they would say. That's not what anyone I know actually believes. The notion that there would be a fertility test and a psychological test before any marriage license to see if the couple can or will reproduce is ludicrous. The notion that the only function of marriage is procreation is not the position anyone is taking. The question is not about the only function of marriage. The question is why does the government regulate marriage? Look, would you like an ice cream? Yes? Then go get one. There are no government regulations about eating ice cream. Often. It's not in their interest. Regulating marriage is. Why? Look, here's the question. In order for the government to get involved, it has to be about societal, not personal interests. What are the societal factors of marriage and its newly defined cousin, "same-sex marriage"? Or, conversely, why doesn't the government simply get out of the marriage business?

Maybe they will. A recent Pew study said that while 52% of Americans believed that it was important to have kids, only 30% thought it was important to have a successful marriage. Other standard statistics¹ tell us that approximately 50% of marriages end up in divorce. If marriage is on the outs and this is only exacerbated² by the radical redefinition, then I would suspect that in a little while the government won't have a whole lot to regulate there. Besides, if they eliminated the legal entity known as "marriage", they could also eliminate all "spousal abuse" ... since the legal term "spouse" would no longer exist.

And that last bit of sarcasm was intended to point out that the government does have a compelling interest in perpetuating and protecting marriage. Marriage, as it turns out, is good for society. Divorce is not, and "no fault divorce" is a failure on the part of government to protect marriage. Spousal abuse is not. Broken homes is not. On the other hand, marriage -- the union of a man and a woman -- is the best environment for raising children. Married people are likely to live longer. Married people are typically happier and more mature. Married people tend to be better off financially. In short, marriage -- the union of a man and a woman ... for life -- is good for society. I would not only think that the government should be involved, but that it should take a few steps back and delete "no-fault divorce" and "gay marriage" in the efforts to defend this venerable and useful institution. I, of course, will not be holding my breath on this account. As I said, I anticipate more likely a more hands-off approach. Then where will we be?

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¹ The standard statistics on divorce are a bit misleading. While the overall numbers suggest something in the vicinity of a 50% divorce rate, these numbers are skewed by the totals. Take, for instance, a person who marries, divorces, and remarries. This would count as a 50% divorce rate in one person alone. The divorce figures more carefully analyzed actually suggest a different picture. Look, here's an interesting example. According to the CDC who keeps the records, in December of 2009, Alaska reported 361 marriages and 381 divorces. There you go. The divorce rate is 105%! Shocking! This, of course, illustrates the need to figure out what exactly the numbers mean. (Note, by the way, that according to the CDC, the source of the divorce and marriage statistics, "The collection of detailed data was suspended beginning in January 1996." Odd, isn't it? Everything since is estimated.) The statistics are derived from number of marriages (per 1000 persons) versus number of divorces (per 1000 persons), but doesn't take into account ages, years of marriages, education, religious convictions, whether this is a second (or subsequent) marriage, etc. As it turns out, a couple dedicated to conservative Christian beliefs married between the ages of 20 and 30 for the first time have a better than 80% chance of remaining married for over 30 years (where the counting stops). Beware, then, of "standard statistics".

² Exacerbate ... your "word for the day". It means "to make a problem worse."