Attend next week's Philosophy Seminar with Roderick Long
<http://www.mises.org/upcomingstory.aspx?control=85> , via live webcast
Don't Let Government Define Marriage (Or Optimal Child-Rearing
by Gardner Goldsmith
On June 7, the US Senate voted to kill an amendment to the US
Constitution which would have, in part, defined a marriage as a legal
union between a man and a woman.
But regardless of its fate, the issue is far from dead. There are
compelling reasons to oppose any such amendment and to analyze the
mistaken assumptions behind it.
First, we must deal with the popular misconception that a
state-sanctioned marriage is a "right." A state-sanctioned marriage is a
government-proffered benefit, granting unique government treatment by
law, and forcing certain actions by private industry under the law. It
grants the sole license of conducting legal marriages to a select few,
and excludes others from operating freely to conduct legal marriages.
These facts alone stand in sufficient contravention to the concept of
individual liberty to warrant opposition to state-licensed marriage.
George and Martha Washington never had a marriage license, and most
Americans didn't need them until the mid-1800s. It is likely they would
be appalled by the degree to which we have gotten the government
involved in a sacred religious ceremony.
Regardless, homosexuals claim to have a "right" to be married by the
state, just like heterosexual couples do, and this claim has been
recognized in certain jurisdictions in the United States. Since, under
the "full faith and credit clause" of the US Constitution, any legally
binding contract from one state must be recognized as legally binding in
all others, supporters of "traditional marriage" fear that marriage
licenses granted to homosexuals in other states would have to be
recognized in their home states.
As a result, they attempt to pass laws or constitutional amendments to
protect them against this prospect, which seems rather a waste of time,
since supporters of homosexual marriage will challenge state laws or
state amendments, expressing their belief in "equal treatment" under the
law, as supposedly codified in the Fourteenth Amendment of the US
Constitution. This implies that for state-granted benefits such as
marriage, regardless of the traditional definition of the word
"marriage," everyone should be treated equally. Despite the fact that
the Fourteenth Amendment actually states, in part, that citizens shall
be afforded "equal protection" under the law, and state-conferred
benefits would fall under the rubric of treatment, not protection, it is
likely that the actual wording of the Fourteenth Amendment will be
overlooked by the US Supreme Court. It will be supplanted by the
contemporary interpretation of "equal treatment" under the law, and
then, heterosexual marriage will be history.
Hence the impetus for supporters of "traditional marriage" to amend the
US Constitution in order to explicitly state that only heterosexual
weddings will be recognized in the United States. It seems so simple.
But in addition to the salient legal facts, there is another
consideration: the dynamic of political-economics.
Proponents of legally or constitutionally codified heterosexual marriage
state that their primary reason for pursuing their course of action is
to protect children. Marriage, they say, is a contract over which we
give the state control in order to protect the next generation. They
cite oft-debated studies that show the best situation for the upbringing
of a child is in a two-parent, male-female home. The biological parents
are the best option, they say, for the healthy growth of a child. They
claim that by legalizing only "one man - one woman" marriages, they
promote the optimal conditions for the upbringing of a child.
But that begs the question: by only legalizing the optimal, do they
agree that anything suboptimal should be illegal? If the conditions for
raising a child vary, and run along a continuum from the worst (say,
being raised by coyotes in the forest) to the possible optimal (being
raised by loving, talented, brilliant millionaires) would those who
could run government determine that anything below the millionaire level
was suboptimal and therefore illegal? Would one have to undergo a wealth
and intelligence test before being married, because marriage could lead
to childrearing, and that child could possibly be raised in a suboptimal
environment? The standard is arbitrary, and dangerous to a free society.
But this is what is enshrined in the motivation for the passage of the
Senate "Marriage Amendment." Many conservatives favor its passage, which
seems strange, because conservatives have often been defenders of small
government, or less intrusive government. They recognize that government
is an artifice which places in shadow our true interpersonal
relationships. They do not want the state to be considered above God.
Yet, they want to make sure that at marriage ceremonies, the licensed
practitioner conducting the ceremony states "by the power vested in me
by the state of...." It seems strange that any religious person would
feel comfortable insinuating agents of the government in a holy
ceremony, and leaving the definition of the word "marriage" in the hands
of the government itself. Conservatives used to have a reputation for
being skeptical of government.
The clergy can be educated: $20
Many on the pro-amendment side have not considered all the moral
implications of getting the state involved in what constitutes a
governmentally "acceptable" union for the upbringing of a child. They
seem blissfully unaware that once the power to define words is given to
the state, it merely depends on who runs the state in order for the
definition to be changed, and they seem too ready to tinker with the US
Constitution in order to manage something that should have absolutely
nothing to do with the state.
If conservatives believe that they can, in the words of President Bush,
"trust the voters rather than the courts" to decide what is a marriage,
then why not let the people truly decide, and remove the power to define
marriage from the hands of government entirely? Is it any better when a
majority, or supermajority, imposes its will than when a team of judges
imposes it? Of course not. Democracy doesn't excuse tyranny. It merely
provides a gentle-looking mask for the tyrants.
When the vote comes, these questions will be brushed aside. But they
ought to be remembered, and brought up time and again to those who tell
us they favor "less government" in our lives. Proponents of the
"Marriage Amendment" have said that they favor family values. Hypocrisy
is not such a value.