The Public Nature of Marriage Got Lost in Kentucky

Why does Kim Davis work in a public office that certifies a couple’s suitability for each other? This simple point has been missed. In this blog it is pointed out that only a marriage between a man and woman makes any sense if relations between couples are to meet with public approval.

1. Complicated, Simple

Complicated issues are often easier to grasp than simpler ones. Simple things slip under a multitude of noses. They don’t announce themselves the way complex issues do. Complex issues invite us to show how ‘intelligent’ we are … simple matters provide a test that many fail.

2. Crime and Punishment 

In Kentucky a clerk was arrested, jailed, and then released for refusing to validate a so-called ‘marriage’ between those of the same-sex (marriage obviously requiring the two to be of opposite sex).

She suffered. Some took glee in her suffering. Others capitalized. Others shook their heads in disbelief. Most of the fur flew over whether she had a right, under the US Constitution, to refuse to implement a federal court ruling. During the debate, the temptation was to demonstrate cleverness and legal acumen.

3. Why Court Publicity?

A far simpler question begs to be answered, however. Why does a couple want to go to a public official to document their relationship? In the US, this is even stranger because the drive for parity between those who choose homosexual over opposite-sex relations is often predicated on a sentiment along the lines of; ‘Its my life and its none of yer business.’ Why go public, so?

The simple fact is that marriage is not at all a private agreement between two people. Think of private associations between people as conceived historically. Think of friends … they don’t go to a public official to get their friendship certified. If you join a club, there is no need either to seek public approval. Who goes to a public official when starting a job?

With male-female relations, there has historically been a requirement to either voluntarily make public the relation or have it adjudged to be a de facto marriage as in the case of common-law spouses. Traditionally, couples have had to declare their fidelity in public. Not only that, but a gatecrasher could object to the marriage and the law recognises the right of individuals to do so.

4. Marriage and the Public

When marriage is looked at in its public sense, it is clear that the public aspect makes sense for the simple reason that men and women get married to start a family. The community and the legal authorities (legal authorities always follow community historically) identify the two people as having rights on each other. This is not sealed by a kiss as such, but by consummation, an act only a man and woman can perform on each other. If either party is unfaithful this can be used against the offending party in court.

Also, because of the public nature of marriage, both spouses enjoy legal relations with their parents, their siblings, and the same goes for their children. This is a case of natural rights. The couple who commit to each other and bear the sufferings and hardships of raising a family are seen by the community as deserving of special treatment.

The public aspect of marriage, as traditionally conceived, shouldn’t be forgotten and the law, acting on behalf of the community can stop a marriage taking place, annul marriages that have taken place if they didn’t meet certain conditions and judge for one or other of the parties in a parting of the ways if they don’t satisfy reasonable demands the community has.

And, above all, a marriage must be approved of by the community because the community is what has given the two individuals the ability to marry and the community must be sustained by stable families and new progeny who share the same identity as the rest of the community.

All these public aspects make it clear why the legal authorities have traditionally not seen public benefit in any relationships other than that of a suitably matched man or woman. Authorities register marriages and grant these legitimacy. When men and women marry they have given up their individuality and exist as a corporation.

5. Inconsistent Position of Alternative Arrangements

So, when two people can’t consummate, have 0 % chance of naturally conceiving a family, cannot commit adultery (because no consummation has occurred), cannot give siblings natural rights, in fact can’t be said to contribute to the propagation of the community in any realistic sense, the question then arises: why go public? Why publicly declare such relationships? Why not publicly declare ‘I’ve been friends with so-and-so for 3 years’ or why not have a group of people sharing a house together and casually intermingling go public? Why, indeed, are two people involved? Isn’t it obviously because one man and one woman are distinct partners with respect to forming and sustaining a family?

6. Simple Truths

When you look at marriage from the specifically public angle, the simple truth emerges that the male-female union is special in ways that are too numerous to mention, although I’ve attempted to give a few reasons here. It is patently unequal to treat different cases the same and is not equality but ‘levelling.’ Metaphorically, the traditional marriage is the Taj Mahal of relations and all others are merely shanty towns.

7. Conclusion

Kim Davis worked in a public office … her detractors have been quick to point that out. What they haven’t picked up on is why a marriage is registered publicly in the manner that it is.

People like Kim Davis are vilified for not trying to get their head around something that is completely irrational. I suspect there will be more like her because marriage protects propagation in a humane manner. Complex three-party arrangements for the benefit of the free-market are interesting but unsustainable as other non-marital relationships have proven. Ultimately the debate will not be one of words but will come down to a matter of simple survival.

Colm Gillis has written two books. His latest is The Exceptionally Decisive Carl Schmitt.

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