“We look at a license as giving permission,” says DJ Schanz (pictured, standing left; not to be confused with controversial entrepreneur and former gubernatorial candidate “Super Dell” Schanze), spokesman and co-founder of advocacy group Government Free Marriage. “And anything the government can give, it can take away. We don’t think of [marriage] as like a hunting or driver’s license. We see it as an inherent right to contract.” For a cadre of straight-laced conservatives, mostly Utah Mormons, the members of Government Free Marriage hope to shake up the gay marriage debate by offering a compromise: allow gay individuals—along with all other consenting adults-the opportunity to contract marriage as they see fit.
While the idea has traction by virtue of its simplicity, in practice it would face numerous cultural and legal hurdles.
“This is where libertarians become more dangerous than dedicated Marxists, in my opinion,” says Paul Mero, director of conservative think tank the Sutherland Institute. “When they come up with a solution, they don’t take into consideration the entire fabric of a free society,” Mero says, arguing they focus too much on individual rights.
Group founders like Schanz will be the first to admit they don’t have all the answers, but they do have a question for little-government conservatives as well as social democrats: Why leave government in charge of regulating personal unions of love and commitment in the first place?
Schanz believes that the group can compete in the marketplace of ideas, especially with so much antiestablishment thinking coming from both the political left and right currently.
“I think we are in a state of flux with politics. People are looking beyond a traditional left/right paradigm,” Schanz says. “Our movement is trying to attract people who are not necessarily left/right thinkers but right and wrong, government-involvement versus non-involvement thinkers.”
Schanz’s group—which is in the process of becoming a nonprofit—hosts a board that includes a diversity of political and religious backgrounds. Those on the six-person board are mostly members of The Church of Jesus Christ of Latter-day Saints, but also include a left-leaning, secular humanist and Libertarian Nathan Goodman, as well as Spencer Morgan, a Libertarian whose mother, Karen Morgan, is the Senate Minority whip in the Utah Legislature. It also includes LDS members like criminal defense attorney Jerry Salcido (pictured, standing right), as well as Schanz, a 2010 candidate for Davis County’s Legislative District 20.
The group’s Website notes marriage licensing being used to outlaw interracial marriages in 38 states throughout the 1920s. Fast forward to 2009, and group founder Salcido says state government entered the marriage debate again in a big way when the California State Supreme Court decided that the “inalienable” right of marriage could not be taken away by constitutional amendment. Ironically, it could be taken away, or licensed, by the state, Salcido argued in an essay on the group’s Website: “The deb8 on Prop 8 is not about h8…but whether we should give into its b8 and infl8 the control of the st8.”
Salcido likes the group’s message because it goes to the heart of the issue of government involvement in individual liberty. “Marriage is so ingrained in society through government that it affects everything,” Salcido says. “The marriage issue is really just an appendage of a more encompassing philosophy.”
University of Utah law professor and member of Equality Utah’s legal panel, Cliff Rosky, says the alternative of contracting for rights in family have not historically held up.
“Letting people contract these things—it gets messy,” Rosky says. He points to Jones v. Barlow, a 2007 Utah Supreme Court case, as proof that current legal statute doesn’t support contracting family rights. In that case, two lesbian partners had planned to raise a child and together drew up legal paperwork to protect the agreement. After the birth of the child, however, the mother decided she was no longer lesbian and took full custody of the child as the biological mother.
Considering that government-issued marriage licenses are common currency in tax filings as well as in family and marriage law, “Getting government out of the marriage business is an ambitious undertaking,” Rosky says.
For Schanz and Salcido, the question of exactly how to remove government from marriage may present problems—but at least they’re good problems. “It would require a complete overhaul of our political philosophy,” Salcido says “But it would also narrow government involvement and make individuals more free.”
Philisophically, however, Rosky says the group’s reductionist solution could still be seen as shortchanging the LGBT community’s equal rights.
“Some LGBT advocates would say when African-Americans wanted to go to school with white people, some Southern states closed public schools. When people of color wanted to go to public swimming pools, they closed public pools. And now they say gay and lesbian couples want to get married and now they want to ‘close’ marriage and call it something else—that doesn’t feel right.”
Still, the Government Free Marriage advocates worry that that mindset gives equal license to gay-marriage opponents to use government to abuse their individual rights in turn. For example, a recent bill proposed by Rep. Lavar Christensen, R-Draper, that says that since “marriage and family predate all government” and “marriage represents the legal sanction and approval of society and is essential to ordered liberty and public virtue,” that all state laws must sustain the family.
For conservatives like Sutherland Institute director Paul Mero, there is nothing inconsistent in having government regulate marriage. “Government has a role in creating ordered liberty—that term alone will cause most libertarians to start pulling their hair out,” Mero says. “Government isn’t creating marriage, but it is recognizing what best secures freedom.”
For Schanz, however, government should not be trusted with that obligation. “The true conservative position is about limiting government—let’s not be hypocritical about when we want limited government. Let’s pick limited government that benefits liberals, conservatives and everyone.” While the group needs to work out practical details before it recommends concrete reform, members believe the most important step is starting the conversation.
“There can never be a change unless people’s ideas start changing,” Salcido says.