Laws often try to regulate personal things. The law has its own opinions about what your name is, who your family is, where you live, and so on. But these don't always match reality. You might go by a different name. You might live with a different family. You might spend most of your time in a different place.
When the law is wrong about your life, that can cause problems. Some are minor inconveniences, but others are much worse. I've heard of laws giving “family members” the right to make decisions for someone, even after the person severed all ties with them for being abusive. And of course, the law can endanger trans people by outing them by using an incorrect gender marker.
For this post, I'm going to use the example of gay marriage. I'm not a huge fan of marriage, but I think it makes a good example here. In many countries, there are laws that give certain privileges to straight couples, but don't give those privileges to gay couples. This is absolutely unfair. But I'm going to look at a much subtler question: do these laws prevent gay people from getting married?
The argument for “no”
When people say “marriage”, they're usually talking about a social relationship – a personal and/or religious commitment. They're not talking about a mishmash of legal privileges, like hospital visitation and joint tax filing. In this sense, these laws don't make gay marriage illegal at all.1 It's still completely legal to perform a marriage ceremony. It's legal to live together with any kind of relationship or commitments that you choose.
The only thing the law does is refuse to acknowledge or privilege the relationship. But you can't get a legal certificate saying what your hobbies are, either, and that doesn't mean your hobbies are illegal.
The argument for “yes”
Look at what happens in places where the laws change. When the government starts acknowledging gay marriages, many gay couples go out and get married – and not just in the legal sense of getting a certificate at an office. They actually do the ceremonies and feel like they now have the social relationship of marriage.
Presumably, a lot of these are people who would have gotten married earlier if the law had supported it. If a change in the law can cause some people to marry or not-marry, the law must have had some form of control. If the law never actually punished people for marrying, so what? That just means that its control was exerted in some other way. In fact, perhaps this form of control is more effective than punishment. After all, laws that punish drug use don't stop people from using drugs. But I think the law's effect on gay marriages may have been much bigger.
I would say this: A law's control is often not based on punishment, but on trust. Drug users know they can't trust the law. But too many people trust the law to define other people's personal relationships, and sometimes their own as well.
Let's not place our trust in unjust laws.
- Some countries have laws that outright criminalize gay relationships. That just isn't the subject of this post. back