A NATURAL RIGHT TO MARRY?

INTRODUCTION In the landmark judgment, Loving v Virginia2 , the Supreme Court held that marriage is a “basic civil right of man” fundamental to our very existence and survival. More recently, in Obergefell v Hodges3 , a similar line of argument was taken in allowing homosexuals to be a „member‟ of the exclusive club that is marriage. As assumption that underlies the discourse around marriage is that it is a pre-political institution, a natural right, one that must be enjoyed by all citizens. However, in this paper I seek to reject this assumption and argue that marriage is a man-made institution heavily influenced by traditional and religious doctrines. The state in defining and regulating marriage is entering into the private domain and is therefore imposing a moral doctrine on all the citizens. Even in permitting homosexuals to marry, it still ignores a multitude of relationships that continue to exist in our society. Marriage as a concept emerged a purely religious institution, to ensure social and economic stability. A Marxist analysis of the history of marriage reveals that the state regulation emerged as a means to regulate labour and population in the society. My main contention is that marriage itself being a private affair, the state in defining it- even extending it to homosexuals- will be propagating or condemning a moral doctrine, which is against the basic tenets of a liberal state. Part I of the paper shall discuss the emergence of marriage as a political institution and the capitalistic structures that influenced it; in Part II I shall argue that in applying a Kantian philosophy, despite his own views on marriage, would result in separating the state from marriage; Part III shall argue through a Rawlsian lens that discourse around state regulation of intimate relationships should be around the right to contract and individual freedom and liberty; and finally in Part IV I shall argue for a domestic partnership model that is best suited in a contemporary liberal democracy