Over the past decade, since Judith Butler’s essay, “Competing Universalities,” civil rights for those who identify as gay and lesbian have expanded dramatically. Don’t Ask, Don’t Tell has been repealed, allowing tens of thousands of gay servicemen and servicewomen to serve openly in the military alongside their straight colleagues (though they are still prohibited from passing along their veterans’ benefits to their partners, due to federal prohibitions against recognizing gay partnerships). Marriage or civil union between two men or two women is now legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, as well as Washington, DC. (Though those partnerships are not recognized outside of those states, nor are those couples permitted to share federal benefits, nor is their union recognized when they pay federal taxes.) National polls show an overwhelming generational divide on the issue of gay marriage; the majority of people under the age of 40 believe that gay marriage should be legal at the state and federal levels, making it seem more and more likely that, in a few decades, this will be achieved.

Yet in the national conversation and debates about gay marriage the role of the state in recognizing, promoting, and rewarding a formalized union between two adults has been largely ignored. Every marriage is a ménage à trois, with two adults and the state bound together in matrimony. As I teach students in my medieval history classes, marriage in western culture has overwhelmingly been an institution to promote the orderly transfer of property from one family to another, and as a vehicle for legitimizing the offspring of a union between a man and a woman–for the purposes of inheritance. The US tax code and estate laws still largely enshrine this ideal, despite the fact that it is out of date. More children are born to single parents or out of wedlock, fewer couples are having children, fewer families find that there is any property to inherit, only debt (often due to the crushing expense of elder care alongside plummeting home values and stagnant wages), and more and more families are post-nuclear (divorces, remarriages, step-families, half-siblings, etc.). Furthermore, the industrial-bride complex is a multi-billion dollar industry (to say nothing of how much income “family law”–that is, divorce, pre-nuptial, and custodial law–generates) predicated on selling consumers on a romantic ideal of their “special day,” from which all mention of property and wealth is banished (save for the wealth generated by dressmakers, caterers, florists, and wedding planners).

Why? While I understand the historical reality that generated a controlling state-interest in marriage, it is clear that that historical moment is now over. People with assets can leave them to whomever they wish. Married couples without children–for whatever reason–and two incomes find themselves penalized in the tax code. The state operates on a definition of family, marriage, and sexuality that is out-of-date and impractical, yet in so doing, refuses to recognize millions of citizens *as* citizens, or even as humans.

I understand Butler’s position that to participate in those institutions, or to fight to be able to do so (marriage, the military) only strengthens them. Yet it seems to me that the two institutions are not parallel. Allowing gay warriors to serve openly in the military will strengthen the military in the best way: It will liberalize and diversify the military, strengthening our country as a whole. As for marriage, though, it seems like the state should get out of the wedding business altogether, allowing consenting adults to organize their private lives and households how they wish, and providing equal protection and opportunity to all.