Don't Let Government Define Marriage
(or Optimal Child-Rearing Environments)
by Gardner Goldsmith
[Posted on Thursday, June 22, 2006]

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.

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.

Gard Goldsmith lives in New Hampshire. See his articles. Send him mail. Comment on the blog. "The Church and the Market" The clergy can be educated: $20