The debate about what is euphemistically called “marriage equality” is stunning in many ways.
THE SHALLOW COMPLAINT
In its most common and intellectually shallow form, the current argument of those who contend that marriage should be gender neutral is that it is a “right”. Among the many concepts that these claimants obviously don’t grasp is the notion that anytime a government issues a license to sanction or to allow an activity, then a restricted privilege, not an unrestricted right, is involved. In fact, civil marriage is a secular and temporal benefit that has never been granted to everyone.
At times, some local ordinances proscribed interracial marriage. At times, some States forbade marriages where one or both applicants were infected with certain diseases. National statutes, enacted long before DOMA, have made marriages involving more than one wife or more than one husband illegal. Moreover, we don’t confer marriage upon men and their gerbils, or women and their horses, no matter how committed the human grooms and brides may be to their rodent or equine pets.
Distinctions may be drawn that humans may own their pets or plants but cannot own each other. Humans may possess estates whereas all other members of the plant and animal kingdoms cannot. These differences may stop the argument that marriage is a civil right from proceeding across the entire taxonomic classification system.
However, they do not address the direct motivation for the current claims that marriage should be genderless among humans. Moreover, they overlook two significant impediments to national interference in the concept of marriage.
THE FUNDAMENTAL MOTIVATION OF THE COMPLAINT
Marriage licenses are primarily issued today for the purpose of documenting a relationship entitled to receive various governmental benefits: welfare, tax, privileged communication, and a plethora of others. Consequently, the attempts to pervert this institution by same-sex partners are, in reality, not fundamentally provoked by reference either to any high-minded ideas of human equality, or to the inalienable rights endowed by the Creator, or to equal protection under the law.
Indeed, they are driven primarily by considerations such as Ms. Windsor’s complaint about paying estate tax, when she would not have been required to do so in the same situation had she been married to a man. They are underwritten by same-sex partners who want survivor benefits from Social Security, hospital visitation rights under HIPAA, protection from being forced to testify against their partners in certain court cases, and favorable income tax treatment under the national Tax Code and any State tax codes that might apply.
This debate is fueled by worldly, trivial considerations associated with the gender discrimination of the current legal definition of marriage relative to the award of benefits by government. Hence, when one hears about “marital rights”, both civil and otherwise, then what one sees is the cart that follows the horse of base human materialistic desire.
AVOIDING SUCH COMPLAINTS THRU FEDERALISM
The gender-based definition of marriage is enshrined nationally in nearly 1,100 federal statutes, along with their associated interpretive rules, regulations, and court judgments or opinions. Consider what might have been had the Congresses, Presidents, and Supreme Courts over the past 80 years understood, and adhered to, the Constitution.
For example, the General Welfare clause was inserted by the Framers to ensure that our national government always acted for the benefit of the nation as a whole and never in the specific interest of one sector, State, or individual. Had this interpretation been retained, Social Security would not have been enacted, nor would Medicare, Medicaid, Food Stamps, national unemployment, housing subsidies, nor a host of other welfare programs, all of which provide national entitlement benefits to a limited number of individuals who qualify for them on the bases of their indigence, age, infirmity, employment, family size, and/or marital status.
In the absence of such national charity, specifically as such benefits are increased for couples deemed to be married, part of the motivation to have the national government recognize a same-sex union vanishes. In fact, there go nearly one-half of the sources of the complaints regarding “marital equality” at the national level.
Similarly, the Framers inserted the Capitation clause with the vision that the national government would raise revenue by taxing the States in proportion to their populations. Had such a system been retained, no direct taxes would have been laid upon individuals, their incomes, or their estates by the national government.
In the absence of such national taxation on individuals, specifically as such taxes are decreased for couples deemed to be married, part of the motivation to have the national government recognize a same-sex union vanishes. In fact, there go nearly the other half of the sources of complaints regarding “marital equality” at the national level.
AVOIDING SUCH COMPLAINTS THRU THE FIRST AMENDMENT
Debate about the definition of marriage beyond the shallow end of the intellectual pool is always tied to the moral imperatives found within oneself or such books as the Bible, Quran, or Torah. Consequently, when Congress legislates in this area, directly or indirectly, it (probably) crosses the First Amendment line that prohibits it from making any law respecting an establishment of religion or prohibiting the free exercise thereof.
This would also be true for legislation Congress passes that seeks to define, outlaw, or regulate in similar areas such as abortion, assisted suicide, (perhaps) euthanasia, unassisted suicide, etc.,. In these cases, there is no great public interest at stake, outside of the aforementioned, congressionally-created, welfare, tax, and other public policy programs that generally should have been avoided to preserve the federal relationship the Framers envisioned between the national government and those of the States.
Unlike murder, kidnapping, or false imprisonment, where, for example, the inalienable rights are involved, congressional legislation of our morality, absent such significant public welfare, is either equivalent to a specification of religious (spiritual or moral) belief or an interference with the practice thereof. All laws may have a moral component; however, the Establishment and Free Exercise clauses foreclose the possibility that Congress has any power to legislate on the basis of moral, spiritual, or religious conviction either primarily or alone.
LET’S NOT KID OURSELVES . . . .
Obviously, government is neither wise enough nor humble enough to restrain itself from overreaching. This is because government is composed of the same type of humans who wish to be declared married to their same-sex partners. Each wants to extend its power over, and influence within, our society and culture. Each wishes to garner a majority in electoral support. Each likely believes that its advocacy was, or is, undertaken with the best of intentions.
However, our national government violated the liberty that the Founders had in mind when they drafted our Constitution by incorporating a definition of marriage into the body of our national laws. Same-sex couples offended the sensibilities of many who wished to restrict the definition of marriage to its cultural norm for the purpose of distributing welfare and entitlement benefits.
There is little doubt that both the government and the electorate will tolerate alternative lifestyles in America. This isn’t the fountainhead of the debate. Indeed, tolerating alternate lifestyles is one thing; but paying for them is quite another.