In defense of a federal marriage amendment
Paul GoodellOn October 10th, the Connecticut state supreme court ruled that homosexuals could not be denied the right to marry. Connecticut joined Massachusetts as the only other state where same sex marriage is legal (since California no longer allows same sex marriage). Not coincidentally, in both states same sex marriage was approved by the courts, not by the citizens. Same sex marriage has never been approved by the citizens of any state. In fact, over half of the states in the US have constitutional bans on same sex marriage, and seventeen others have statutory bans of one kind or another. Only 6 out of 50 states do not ban same sex marriage. And yet, for all of the obvious opposition to same sex marriage in the US, there’s still a very real chance that it could be imposed through the courts. For this reason, I believe that there should be a federal Constitutional amendment declaring that only monogamous, heterosexual marriage is valid in America.
Gay couples married in Connecticut or Massachusetts who move to a different state have the potential to instigate a Constitutional crisis. The Full Faith and Credit Clause of the Constitution requires states to respect the “public acts, records, and judicial rulings” of every other state. At the moment it’s not clear whether the Full Faith and Credit Clause would apply to same sex marriage, but there is strong reason to believe that it would.
If a gay couple married in Massachusetts moved to Virginia, where neither same sex marriage nor civil unions are recognized, their marriage would not be considered legitimate. It’s not implausible that, if such a couple were unwilling to move to another state (because of job considerations, for example), they would sue in federal court to have their marriage recognized. If, as is also not implausible, the court sided with them, Virginia would have to hope that the Supreme Court decided that a state amendment trumps a federal court decision. If that were not the case, however, Virginia — and the other 26 states whose constitutions affirm traditional marriage — would be forced to recognize homosexual marriages against the will of their citizens. Thus, the opinions of a handful of judges would trump the opinions of millions of citizens.
What options do people concerned about the status of traditional marriage in America have at their disposal to address this potential crisis? I see three options: maintain the status quo, pass a Constitutional amendment exempting marriage from the Full Faith and Credit Clause, or pass a Constitutional amendment exclusively legitimizing traditional marriage. Of the three, I conclude that the third option is the only viable one for people who want to defend and maintain the status of traditional marriage in America.
Option 1: Maintain the status quo.
In this option, states are left to themselves to independently ban or allow same sex marriage. This option would involve no action at the national level. It does involve the assumption that the scenario described above — where a gay couple married in one state moves to a state where gay marriage is illegal and successfully sues to nullify the state’s law/constitutional amendment — won’t happen. As Justice Antonin Scalia noted in his dissent in Lawrence v. Texas (the 2003 case striking down a Texas statute forbidding homosexual conduct), however, this assumption is a clear case of wishful thinking.
One of the benefits of leaving regulation of [homosexual conduct and homosexual marriage] to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage … Do not believe it.
All it would take would be just one federal judge ruling that state amendments banning same sex marriage deprive homosexuals of their Constitutional guarantee to equal protection under the law and the crisis would be upon us. Given the dispositions of many current federal judges, the question seems to be when, not if, this would occur.
Option 2: A Constitutional amendment exempting marriage from the Full Faith and Credit Clause.
This option would require action at the national level, but it would preserve the rights of states to make laws without the fear of judicial meddling. It would also preserve states’ status as “laboratories of democracy” in this area. If states are explicitly not required to recognize marriages performed in other states the scenario in option 1 cannot materialize, and states would be allowed to ban or allow same sex marriage as they saw fit.
This option would raise a host of other problems, however. Marriage is one of the most basic institutions of American society, and it’s interwoven and implicated in nearly all aspects of society. Property, inheritance, taxation, custody of and responsibility for children — marriage touches on or is directly implicated in these and many other issues. Having a patchwork quilt arrangement regarding marriage would be a recipe for confusion and conflict.
It would, in fact, resemble the pre-Civil War status quo regarding slavery. In that time, for example, a black man from Massachusetts visiting his cousin in Alabama ran the risk of being captured as a “runaway slave” and sold at the slave market because he had no rights in Alabama. Likewise, a slaveholder from Alabama traveling through Massachusetts with his slaves ran the risk of abolitionists freeing his slaves and not being able to get them back, since slavery was illegal in Massachusetts. In one state, an ostensibly free man had no freedom. In another state, a man’s lawful property no longer belonged to him. This patchwork quilt arrangement led to such confusion and conflict that it helped precipitate the Civil War.
While I don’t think a similar arrangement concerning marriage would have such a drastic effect, I do expect that it would create immense chaos and instability as children (natural or adopted) are deprived by the state of one or both of their parents; as spouses are unable to visit each other in the hospital or inherit property from each other; as divorces become unendingly complicated or even impossible (a couple can’t divorce if they’re not married, after all).
There’s a further problem, however: this option would itself possibly prove to be no more than a stop-gap measure. Pro-same sex marriage advocates in states that ban same sex marriage would likely create intense pressure to legalize it, and the presence of states where same sex marriage was legal would conceivably only add to that pressure, resulting in a never ending crusade to legalize same sex marriage which would dwarf the low-level pressure currently present in most states.
To those who care only about federalism issues, this last objection is of little importance. To those interested in preserving traditional marriage, however, it is extremely important. Most states require a simple majority to amend the constitution. The US Constitution requires a supermajority. The former can be altered much more easily than the latter, meaning that a change in the latter is less likely to be overturned by future generations than a change in the former.
Option 3: A Constitutional amendment exclusively legitimizing traditional marriage.
This option would obviously require action at the national level. It would also be the most far-reaching, since it would invalidate the opinions of at least two state supreme courts, as well as the statutes in the fourteen states that allow civil unions or other options with benefits resembling marriage. It would also address the problems raised by the first two options in ways that those options cannot.
It would remove the possibility of federal judges imposing same sex marriage on citizens who clearly don’t want it. It would avoid the conflict and confusion which a patchwork quilt arrangement involving states with radically different definitions of marriage would necessarily entail. It would very likely last longer and be harder to overturn than option 2, which effectively maintains the status quo without the threat of judicial activism. For people concerned about maintaining and defending the status of traditional marriage in America, this seems to be the only viable option.
November 6th, 2008 at 7:06 pm
Differences in the marriage laws are not a new problem. Neither is the application of the Full Faith and Credit clause of the federal Constitution to states with differing marriage laws. The courts have had a lot of time and many opportunities to develop a very full body of common law on the Full Faith and Credit clause.
It’s long and well-settled that the Full Faith and Credit clause does not require a state to honor the legal determination of a sister state when doing so would violate the deeply held public policy of the forum state. It is also well-settled that the purest and most singular expression of a state’s public policy is its constitution.
While rogue judges reaching mind-boggling conclusions is always possible in theory, the law in this area is old, tested, and well-settled. The chances of a state with a constitutional amendment defining marriage to exclude gay marriage being forced to honor a gay marriage performed in another state are minimal. To reach that end a federal judge would have to overturn some of the most well-settled precedents extant, in multiple areas of law, with far-reaching and chaotic effects on operation of federalism itself.
Having worked in the federal judiciary, I tell you with some confidence that even activist judges have taboos, and messing with legal foundations that deep and far-reaching (in the technical legal sense) is a big one. Finding one judge willing to buck 250 years of precedent on Full Faith and credit would be very difficult–finding three such judges on a court of appeals would be well-nigh impossible.
In other words, your recommendation of drastic action overestimates the necessity of drastic action.
November 6th, 2008 at 11:14 pm
Well, you speak from some experience on this issue. Myself, I have little faith that 10 or 15 years from now the taboo will still be seen as legitimate. As you’ve noted on this site, the advocates of same sex marriage use the language of civil rights, and the example they’ll probably push for is the anti-miscegenation laws (and provisions of state constitutions) on many books that were undone in the Civil Rights era. I, as a law layman, may be wrong in such a prediction, but I find it very easy to believe that you will be able to find a handful of federal judges willing to go logically and philosophically where same sex marriage proponents want them to go.
All this to say, at the moment the need for drastic action may be small, but in the not-so-distant future it may well not be. Given how difficult and time-intensive it is to gather support for a Constitutional amendment, it seems best to sound the call for action now so that if (or when) the crisis comes, we’ll be ready for it.
November 6th, 2008 at 11:16 pm
I should clarify: I mean that you may well be able to find such federal judges in 10-15 years.
November 7th, 2008 at 8:55 am
Maybe, but until the texture of the federal bench changes radically, you’ve identified a solution without a corresponding problem.
November 7th, 2008 at 10:21 am
Don’t be so sure. Change can happen a lot faster than you or I think.
You have noticed the gentleman who our fellow countrymen recently elected President, haven’t you? And I assumed you’ve noticed the friendly confines his judicial nominees will have for their confirmation hearings? Obama may govern as a moderate and he may not. (His pick of Rahm Emmanuel as his Chief of Staff does nothing to encourage the belief that he’ll govern more moderately, though.) He can afford to nominate radical judicial activists to the federal bench left and right, however, as long as they’re not Supreme Court picks, since no one pays attention to the district and circuit court nominees. Everyone pays attention to the Supreme Court, even though the lower federal courts decide 95% of the cases in the federal court system. And there will be vacancies.
For the Supreme Court, Stevens stands a very good chance of retiring in the next four years. Scalia’s an outside shot. One big prize is the DC Court of Appeals, which was multiple vacancies due to the Democrats in the Senate who outright refused to vote on Bush’s nominees to what has been sort of a AAA farm team of the Supreme Court over the past several decades. There are multiple other vacancies. I’m sure your 18 months in Atlanta made you well aware of this. Four or eight years of Obama — assuming he has a friendly Democratic Senate to work with — will fill the federal bench with judges who may very well be the types to impose same sex marriage on unwilling states.
You may say that this is all conjecture — and to a certain extent, it is. But not totally. It’s fair to say that, judging from the demonstrated trend in the courts over the past four decades, it’s not a question of if. It’s a question of when. I think it’s incumbent upon those of us who genuinely care about the fate of traditional marriage to lay the foundation for a movement that’s ready to respond when the “when” comes around.
November 7th, 2008 at 10:39 am
You still aren’t getting how Full Faith and Credit works.
A federal judge cannot just up and decide that the common law of one state overrules the constitution of another. That outcome is about as likely as an activist judge rescinding indian land treaties and evicting the entire population of Florida.
The only scenario where a federal constitutional amendment would serve any use would be a federal statute or federal common law enshrining gay marriage as a federal constitutional right. And, in that case, a federal constitutional amendment clarifying that there is no such federal right and remanding the issue to the states would suffice.
November 8th, 2008 at 7:08 am
Just as an aside, exactly which case was it that sentenced the 10th amendment to dead letter hell?
The word ‘marriage’ is not in the federal Constitution. My (literal) reading of the Bill of Rights, then, directs the issue towards the states. And yet, could not a Federal Court conceivably rule Illinois’s statutory (not Constitutional) definition of marriage unconstitutional?
It seems to me that a federal court would have no written authority to rule that way, as the Constitution’s unmentioneds defer to the states. When did that stop?
November 8th, 2008 at 11:34 am
The federal constitution and laws are the supreme law of the land. So if a court were to hold, for instance, that the 14th amendment to the federal constitution protected a right to gay marriage, state statutes or constitutional provisions to the contrary would be abrogated.
This is a legally distinct issue from the full faith and credit clause, which concerns only the application of the laws of one state in another state. A federal holding that gay marriage is somehow enshrined in the federal constitution is the only serious threat to states’ abilities to determine this issue for themselves
November 8th, 2008 at 11:50 am
In which case, the only serious way to defend the traditional concept of marriage would seem to be through an amendment explicitly and exclusively legitimizing that concept of marriage in the US.
November 8th, 2008 at 12:18 pm
Well, there are two distinct threats. The more probable threat is an attempt to apply the Full Faith and Credit clause. A state can immunize itself against that by amending its own constitution.
The less probable–but, I admit, still possible, threat is a federal court interpreting the 14th amendment as a gay rights charter.
Amending state constitutions is not easy, but it’s much easier than amending the federal Constitution. And the application of the Full Faith and Credit clause is a present danger, while a gay-friendly 14th amendment is not only speculative, but unlikely given the current composition of the Article III court system. The best and most practical solution right now are for so-minded states to amend their constitutions.
There’s just no pressing reason to endanger the political momentum that would allow most states to amend their constitutions, with opposition only from fragmented local gay groups, by risking an attempt to amend the federal constitution, which would mobilize gays nationally, as well as a broad spectrum of sympathetic affiliated groups. Since the problem a federal amendment answers is speculative and practically impossible in the foreseeable future, the risk doesn’t seem worth the reward.
November 8th, 2008 at 9:21 pm
You call application of the Full Faith and Credit (FFC) clause a “present danger”. In previous comments you seemed to imply that such was not the case — that application of the FFC clause was highly impracticable even for activist judges. Is your current identification of the FFC clause as a present danger only in comparison to a 14th amendment argument? It seems like there’s a bit of a contradiction otherwise. Could you clarify a bit?
I freely admit that a federal amendment is very difficult. It is practically impossible given the current makeup of Congress. But it wouldn’t be something that would be accomplished in the next year or two, or even five or six. It would be a long-term strategy — one that wouldn’t preclude application of the first option (amending state constitutions to exclusively legitimize traditional marriage). Federal amendments have become almost quaint in the days of activist judicial Constitutional-amendment-by-interpretation. That doesn’t mean it can’t be done, however, nor does it mean that we should stop trying to make lasting Constitutional change on this issue through legitimate means.
November 8th, 2008 at 9:52 pm
Happy to clarify. Application of the full faith and credit clause is a present danger to states whose citizens oppose gay marriage, but have done nothing to formalize opposition to gay marriage as the deeply held public policy of the state. Once such action is taken, ideally by amending the state constitution, the full faith and credit clause is not longer a danger.
My question to you is, absent a future Supreme Court decision eliminating state sovereignty on this issue, why do you think it’s so important to resolve this issue nationally? Federalism was intended for precisely issues like this–people who want to be gay spouses are free to live in a state with like-minded people; people who abhor the concept are free to live in states that refuse to recognize those marriages.
November 9th, 2008 at 5:44 am
Here’s a better idea still, Paul: get government out of the marriage business altogether, thus making it entirely a religious institution.
This is exactly how things operated 100 years ago, but government decided that health testing and racial intermingling warranted their attention. It didn’t. The gay marriage is the logical outcome of that earlier breach of territory.
The second that a gay marriage advocate attempts to use the state to force my house of worship to redefine its marriage policies is the second before we throw down. Until then, the simpler solution is sometimes best.
November 9th, 2008 at 10:30 pm
Tom: Depending on what you mean by “the marriage business”, I may or may not be inclined to agree with you. If by “marriage business” you mean “defining marriage”, however, you’re flat wrong when you say that the US government only started doing this in the Progressive Era.
Polygamy, for example, has been outlawed in America since before the Founding. The colonists brought such bans with them from England. Officially giving up polygamy was one of the conditions Utah territory had to meet before becoming a state, as you no doubt remember, an event well before the Progressives. And sodomy — i.e. homosexual conduct — has been prohibited in the West at least as long as polygamy. Bans on homosexual conduct would, of course, also ban same-sex marriage. So the US has been in this kind of “marriage business” for longer than it’s been an official country. All I’m calling for is for it to continue in this very appropriate vein.
Jeremy: I think it’s important to define this issue nationally for the same reasons I stated in my essay. I think a patchwork quilt arrangement on an issue this central and pervasive would cause nearly as much conflict as the patchwork quilt arrangement on slavery caused. The problems that would be raised — even if the government gets out of “the marriage business” as Tom advises — would be myriad, costly, and detrimental to the health of the nation as a whole.
Moreover, marriage is one of the most basic and fundamental aspects of our society. While individuals are the basic unit of our society, healthy families are the an essential part of the foundation of our society. The structure and health of the family, to a very large extent, determines the structure and health of the society as a whole. As families in America have noticeably broken down over the past forty years, so has our country. As families continually provide less stability and protection to their members, local and national governments step in to fill that gap. Accordingly, I am firmly convinced that allowing marriage to be twisted to mean something it has never meant (marriage has not always involved monogamy, but marriage has always and everywhere involved heterosexuality) would be a critical step in ensuring the continued deterioration of American society. Hence, it is incumbent upon those of us who care about preserving the good in American society to not allow a development that would be critically — perhaps fatally — detrimental to that good. Which is why I support national action on this issue.
I’m not calling for fascist, judicially imposed action. I’m calling for legitimate democratic change. If we can convince enough people to join us in affirming traditional marriage, we will succeed. If not, we will fail. But we have to try. Some issues are too important to only be handled locally, and I believe this is one of them.
November 10th, 2008 at 8:26 am
“Some issues are too important to only be handled locally.”
Dangerous stuff. Some issues are too national to be handled locally–no issue is too “important” to be handled locally. In all of your hand-waving about the dangers of gay marriage, I didn’t see anything suggesting that letting states decide for themselves, individually, would somehow be a harbringer of the doom you fear. And, since you’re rightly committed to effecting change democratically, isn’t a state-by-state solution far, far more democratic than a sweeping federal amendment? Or is this issue too “important” for that level of democracy?
November 10th, 2008 at 8:46 am
I knew you’d seize on that line. I meant it, however. You seem to take my meaning to be that local change on this issue is a waste of time. Far from it. Hence the qualifier, “only.” You do my argument a disservice to read an anti-local meaning into it.
Furthermore, a state-by-state solution is no more intrinsically democratic than a federal amendment solution — at least a majority in at least 38 states must separately approve the amendment, and this after at least 2/3 of each house of Congress must approve it — although it may prove less effective.
Finally, in all of your reflections on words I didn’t say, I didn’t notice any response to the argument that a state-by-state, patchwork quilt solution would likely be complicated, conflicted, and well nigh unworkable in practice.
November 10th, 2008 at 10:01 am
My response to your last point is that it is incorrect.
U.S. courts have always dealt with conflict-of-law and choice-of-law issues. Judges and lawyers don’t have much trouble dealing with the question “which states’ law should apply?” The issues presented by some states allowing and others disallowing gay marriage are no more complicated than the issues presented by some states allowing and other states allowing “civil unions.”
November 10th, 2008 at 10:39 am
I think civil unions aren’t as complicated to adjudicate as marriages would be precisely because civil unions aren’t marriages. In many (maybe most, although I’m not sure) states that have them, they don’t confer all of the benefits of marriage. Having a marriage, in many states, makes a big difference over having a civil union — it tends to entitle one to all kinds of benefits that civil unions often do not, and those benefits are what could very well make the situation extremely complicated and unworkable.
I may be wrong — I’m sure you will do me the courtesy of correcting me if I am — but my guess is that US courts had a fairly clear sense of which state’s laws applied regarding whether or not a black slave was still his owner’s property (if, say, the owner and slave were traveling in a manner similar to the example I use in my essay), but it still didn’t make a difference. Slavery reeked all kinds of havoc throughout the Union anyway.
Part of the reason for this, of course, was the passions which slavery and the limiting of slavery aroused in people in the North and South. Same-sex marriage doesn’t arouse similar passions, yet, but I don’t think I’m going out on a limb by saying it may well reach a somewhat similar level in the not-too-distant future. What’s more, the people whose passions it arouses are likely to be the types of folks you got to know during your time in the federal courts — only later, they’ll have real influence. And the legal implications of marriage certainly seem to be much more numerous and more complicated than those of slavery. Or civil unions. All of which to say, I don’t think you’re comparing apples to apples with the civil unions argument.
November 10th, 2008 at 11:39 am
There should be a term for when someone discredits one’s argument by pointing factual inaccuracies in it, said inaccuracies do not by themselves discredit the argument, yet the arguer still believes the argument fully discredited.
So, Paul, thank you for pointing out earlier governmental involvements in marriage. I stand by my conclusion, though, that we need not a civic policy on this, and that creating one only causes these sorts of problems that we have now.
November 10th, 2008 at 4:50 pm
Paul, civil unions was an illustration, not the point. Take insurance law. All sorts of issues arise all the time with people and things getting insured and one state, damaged in second, and claimed by an heir or assignee in a third. The law has well-tested mechanisms for working out which state’s law applies to the seminal question of who gets what. Or, take trusts and estates law. Same thing. People have their will made in state A, move to state B, die on vacation in state C, and have heirs in states D, E, and F, with an executor in state G. Deciding what states’ law to apply is not a significant legal challenge.
Let’s say a gay marriage occurs in a state that allows it, they buy a vacation home in a state that does not allow gay marriage, adopt a child from China, move to a different state that allows gay marriage, then get divorced. Choosing what law applies to the disposition of the property and of the adoptive child are not high hurdles.
November 11th, 2008 at 6:24 pm
The arguments I have heard in favor of gay marriage come in one of two varieties:
1. Gay people should be allowed to marry because straight people marry and it is unfair to treat people differently. We have dealt with capital-E-equality in other contexts on this site, and I will not address it further here.
2. Gay people should be allowed to marry because marriage allows certain ‘rights’ (adoption being a prominent example) which civil unions do not.
Gay marriage supporters should be addressing the rights granted under a civil union instead of who may marry (as tax laws and adoption, etc are entirely secular and a civil union is the state’s recognition of two peoples ’status’ as a couple). Marriage itself is a religious institution and should be inconsequential to the discussion, at least regarding argument 2. I worry that proactively creating legislation to protect marriage will only propagate the problem by refusing to refocus the discussion.
Is it even appropriate to legislate on who can and cannot be married? Paul, I appreciate (and share) your respect for healthy families creating stability. However, I would equate legislating who may or may not marry to making laws about whether self-defense should be permitted. There is clear Biblical instruction that turning the other cheek is preferable to retaliation. But it doesn’t make much sense to hold non-Christians to Christian standards, though it may in fact be ‘better’ for everyone if enforced. This seems an ideal area to allow state-specific legislation.
November 12th, 2008 at 10:15 am
Monogamous marriage is part of what undergirds the keystones of Western culture. It is part of what makes Western culture Western culture. I don’t see how enforcing the basic aspects of Western culture in the West is in any way illegitimate.
Your analogy about self-defense laws completely illustrates this point. It’s a basic understanding in Western society that humans have a natural, inalienable right to self-defense. Only recently have societies fully in the thrall of state power begun to eliminate people’s ability to exercise this right. In the same way, it’s been a basic understanding in Western culture that a marriage being between one man and one woman is the sine qua non of a proper, healthy family. Only recently have people in thrall to sexual liberation and state power begun to discredit that understanding. In each case, it’s the new law which seeks to upset the longstanding aspect of Western culture.
This is not like adultery, covetousness, or lying, which are behaviors that are proscribed by scripture but which would require a Leviathan-like state to effectively prohibit in society. This is an issue that is entirely enforceable. Nor is it about holding non-Christians to Christian standards. It’s about holding Westerners to one of the most basic of Western standards.
One of the themes running through many of my essays on this site is that the cultural fabric that makes the USA unique as an Anglo-American nation and as a Western nation is constantly threatened today. Only so much of that fabric can be undone before the entire piece has unraveled to the point where it cannot be saved.
Hence I’ve written about the problem of chronically unassimilated immigrants, because immigrants who refuse to join themselves to American society threaten to become forces for radical, revolutionary change — making America resemble the homes they left through physical or cultural force — instead of more natural organic change.
Hence I’ve written about the problem of private nondiscrimination laws, because such laws threaten to transform society into a radically egalitarian fascist dystopia where difference of any kind other than those celebrated by the people in power are cause for punishment.
Hence I’ve written about state micromanagement, and intrusion into the operations, of functional families, because it threatens to directly contribute to the overturning of the Anglo-American nature of American society and to remake it in the image of continental Europe, where the loyalties of the people tends, first and foremost, towards the state.
And, hence, I’m writing about the problem of same-sex marriage, because I see its adoption as overturning a fundamental part of the cultural, religious, and philosophical synthesis of the Christendom that became Western culture. One part of my opposition is that, as I’ve said in my other comments, at the heart of any healthy society are healthy families. And at the heart of any healthy family is a relationship between a father and a mother. But the other aspect of my opposition is that such a radical change would overturn the a basic standard — yes, taken from Christian teaching (not the Bible, where polygamy is the norm and monogamy only mandated once, for church elders) — of Western culture. If this most basic aspect of Western culture can be held so cheaply by many of us (for example, those who say marriage should be an “anything goes” purely religious institution), what other aspects of Western culture can be so easily changed? What else is up for grabs?
I understand that this is a form of the slippery slope argument. All I will say is that people made arguments similar to mine 40 years ago when divorce laws were liberalized throughout much of the country about how the national fabric would begin to unravel as families came apart. History seems to have confirmed such arguments. This change is more basic to marriage itself than just increasing its death rate. It is about transmuting marriage, changing it into something it has never been. What will be the consequences of such a fundamental change? We don’t know, but we have very good reason to believe that they will be bad.
That’s why I say that legal action to fight such a radical change is necessary and legitimate. It’s about defending a key aspect of Western culture. If the transmution of marriage is done democratically instead of through the fascist legal route, I won’t complain about its legitimacy, although I’ll still fight it tooth and nail — legitimately and democratically, as well.
November 12th, 2008 at 3:55 pm
Paul,
Your take is admirable. But there are two problems with your latest comment…
1.) Favoring the church defining marriage over the state is not anything goes, any more than permitting gay couples to live together and calling themselves married is (which I’m guessing you could not enforce without the aforementioned Leviathan) and
2.) If legal action is necessary, you still haven’t justified why it must happen federally, but for comparing non-traditional marriages to slavery laws, which is oh-so-less-than convincing.
November 12th, 2008 at 8:48 pm
I wasn’t comparing non-traditional marriages to slavery laws Tom. (I’d think that point was obvious, but perhaps I wasn’t clear enough in explaining it.) I was comparing the complex hodgepodge of free vs. slave states that gave rise to the conflict that helped start the Civil War. It wasn’t the marriages themselves but the differences between marriage laws in different states that I compared to the antebellum slavery and anti-slavery regimes.
My argument for why such change should happen nationally is that the culture itself is national. There’s nothing wrong with proceeding with a state-by-state solution, but for those concerned with preserving what’s left of Western culture in America, a federal amendment is the most effective means. No one in this discussion has demonstrated that a federal amendment is any less legitimate or democratic than a state-by-state procedure, only that it is more costly and time-consuming, which I readily admit. For the purposes described in my previous comment, however, it’s the most effective.
Also, I don’t see letting “the church” define marriage is anything BUT “anything goes”. If we still lived under Christendom, then I’d agree with you. We do not, however. So which “church” is it that’s going to define marriage? The Unitarian church (or any other of the thousands of Protestant denominations)? The Catholic Church? The church of Gaia? A Wiccan coven? How, assuming you’re really privatizing the regulation of marriage, can you reasonably restrict any of the above groups from getting in on the action? What if you have a Church of Nero that believes people should be able to marry their pets, or a Church of Caligula that believes people should be able to marry their siblings (or parents)? Will you have some central religious authority deciding which religious groups are allowed to state who is and is not married? If not, how is such a private solution anything other than making the definition of marriage an “anything goes” operation?
November 13th, 2008 at 4:41 pm
Your point is in response to:
“Favoring the church defining marriage over the state is not anything goes, any more than permitting gay couples to live together and calling themselves married is.”
Fair enough. Would you favor the leviathan state banning gay couples from living together and calling themselves married?
November 13th, 2008 at 11:06 pm
That seems like a curious dichotomy you have there regarding marriage: either complete freedom from any normative restraints imposed by society or stifling conformity enforced by a leviathan state.
Answer me these questions, and I’ll answer yours: Would you favor the leviathan state banning mothers and sons or fathers and daughters (or fathers and sons and mothers and daughters, for that matter) from living together and calling themselves married? Would you favor the leviathan state banning pet owners and their pets from living together and calling themselves married? And, if the answer to those questions is, “No,” a follow-up would be, Does marriage really mean anything then?
November 14th, 2008 at 12:09 pm
Just a reminder of the attitudes supporters of traditional marriage face: http://blog.beliefnet.com/crunchycon/2008/11/the-lavender-blacklist.html
It’s important to remember that right now this boycott is local, and it may end up going nowhere. I suspect, however, that Rod Dreher is correct when he says that the boycott indicates that supporters of same-sex marriage often aren’t interested in standing on principle or winning hearts and minds so much as in simply crushing their enemies. State amendments like California’s are one way to fight back. A federal amendment to the same effect is another way.
November 16th, 2008 at 11:45 am
Paul, you’re demonstrating simply that this is a question of definition, rather than regulation. If the meaning of term “marriage” if self-evident and well understood, the government has no more need to punish a man claiming to be married to his dog than it does to correct a man claiming that his driver’s license is a bald eagle. The claim is nonsensical, and, even though it touches on one of the facilities of the state, ignorable. It doesn’t take a federal amendment to make this so.
November 16th, 2008 at 1:49 pm
As long as we’re at it, I would like to propose Amendment 10.5, to be inserted right after the Bill of Rights, it would simply read “This time we really mean it.” Sorry, I couldn’t resist (I owe that one to my friend C. Keckler).
The amendment process is specifically designed to discourage amendments to the Constitution. I’m against tinkering with the constitution except for the most urgent of matters. Call me a heretic, if Lance and Bruce want to marry and be as miserable as the rest of us, I’m not willing to upset the work of Madison and Jefferson over that. In fact, if they’re going to cohabitate, commingle finances, and be monogamous (is that the right spelling, I still have a few credits to go for my GED), isn’t some sort of civil recognition preferable?
November 23rd, 2008 at 8:00 am
Well, Jeremy, if the meaning of marriage is that well understood, the government has no more need to punish a man (or woman) claiming to be married to another man (or woman) than it does to correct a man claiming to be married to his dog. Both are more or less equally incompatible with the only basic understanding of marriage (heterosexual union between human beings) humanity has ever had. In which case, every state constitutional amendment or statute in defense of traditional marriage would seem to be unnecessary at best and a colossal waste of resources at worst.