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The marriage quagmire

By Wendy McElroy
web posted August 11, 2003

The issue of gay marriages is exploding on the federal and state levels with some politicians calling for a constitutional amendment to define marriage as "between a man and a woman." These politicians are correct about one thing: The institution of marriage is in jeopardy. But it's the politicians themselves constituting the threat.

The power of government over marriage has swollen in the past few decades. Traditionally, politicians have used various methods to control marriage, including:

-- They define what constitutes a marriage and criminalize or refuse to recognize other unions. For example, in 1967 16 states still had laws against interracial marriage.

-- They usurp rights and make their exercise dependent upon marital status. For example, it can be difficult for gays to assert inheritance rights even when a committed common law union -- a clearly implied contract -- is present.

-- They offer entitlements, such as welfare benefits, based on marital status. For example, the Personal Responsibility, Work and Family Promotion Act of 2002 strengthened the emphasis that the Welfare Reform Act of 1996 had placed upon the promotion of marriage in state welfare programs. Government funding is government control.

The current battle over marriage can be dated back to the Defense of Marriage Act of 1996, which was widely considered to be an anti-gay measure. The act federally defines marriage as a heterosexual institution thus negating federal entitlements, such as veteran's benefits, to homosexual partners. It also allows states to reject recognition of same-sex marriages that might be sanctioned by the laws of another state.

Nevertheless, authority to recognize same-sex marriage still resides on the state level and some states have pushed toward legalization. The Massachusetts Supreme Court is now considering Goodridge v. Department of Public Health, a case in which gays have sued to secure legal marriage as a right. (This is different from Vermont, which recently secured the somewhat more limited civil unions.)

Journalist David Mattson explained the possible significance of Goodridge. If it succeeds, other states might "be required to provide legal recognition of these same-sex marriages under the full faith and credit clause of the Constitution ..." If unsuccessful and appealed, the U.S. Supreme Court could "decide that the states must recognize these marriages, in essence changing the Massachusetts Constitution and forcing same-sex marriage on all the states."

There is reason to believe that the Supreme Court would rule in favor of Goodridge and same-sex marriage. On June 26, in a ruling on Lawrence and Garner v. Texas, the Supreme Court struck down the Texas sodomy laws that effectively banned gay sex. Supreme Court Justice Antonin Scalia expressed his dissent and called the decision an invitation to "gay marriage," presumably because it extended due-process provisions of the 14th Amendment to cover sexual preference.

Thus, advocates of traditional marriage have sharpened their calls for an amendment that could end all debate over the constitutionality of gay marriage by embedding a heterosexual definition into the Constitution itself.

As for the opposition to an amendment from the gay rights community, it is not clear whether advocates of same-sex marriage are pursuing rights or entitlements.

The Supreme Court's ruling on Lawrence gave the gay community a rights victory by throwing the government out of their bedrooms. Yet some gay advocates are beckoning government right back in by asking for a state stamp of approval on their relationships. They want gay marriages legally sanctioned on the same level as heterosexual ones, thus allowing gays and their spouses to access massive entitlements on both the state and federal level, including eligibility for public assistance benefits.

The Gay & Lesbian Advocates & Defenders -- a powerful gay rights organization -- made this goal clear in a release concerning Goodridge. In response to the question, "Why not the civil union solution adopted by Vermont?" GLAD responded:

"Civil unions are a good first step, but they don't go far enough. ... Gay and lesbian couples want and need what everyone else has --- the right to receive the full protections bestowed by the state and federal government that come through marriage." A main difference between a marriage and a civil union is that the former has an automatic claim on various federal entitlements.

Advocates of gay marriage do not seem to be rebelling against state control; they want to be subsumed by it.

The current debate over gay marriage is a power play at the highest levels of government and the judiciary to control what should be the most personal matter between human beings: marriage.

To save its soul, marriage needs to be removed from power politics and privatized.

What constitutes a marriage should be determined by contract between the consenting adults involved, not by government. Politicians should be stripped of the power to dictate which consenting adults may marry or the terms of those marriages. The only proper concern of law should be to enforce the contract and to arbitrate any breach that occurs.

In performing this function, it should give no more weight to the sexual preference of those involved than it gives to their skin color -- that is, none at all. The only "entitlement" that should accompany marriage is the enforcement of the terms of that contract.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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