HomeArticlesCultureWhy Christians Should Oppose a Government Definition of Marriage

Should a Government Define Marriage?

Social conservatives have been put on the defensive by gay activists who have been getting laws passed that support homosexual marriages. They have reacted by promoting laws and constitutional amendments in the states and the federal government that would define marriage as a union of a man and a woman. They hope this would effectively put an end to legalizing gay marriage.

In this article, I am not going to either defend or oppose homosexual marriages, but argue such an amendment is against the founding principles of the United States. The proposed constitutional amendments would put morality in the realm of government and effectively violate the principles of separation of church and state. Social conservatives who want to make Christianity the official religion of the United States might support this legislation, but political conservatives who believe in the First Amendment should oppose it. Government has no role in defining religious values.

The very groups promoting a Constitutional Amendment to define marriage as a union between a man and a woman should realize that this would put the government, not God, in charge of marriage. It would undermine the separation of church and state, be a totalitarian law, and desacralize marriage.

The purpose of a good government is to create a rule of law that protects people and allows them to live together peacefully. Unfortunately the general ignorance of that purpose and the desire instead to see government as a means to force others to believe or pay for something we want has become the norm. The founders were worried something like this would happen and turn their republic into a mobocracy.

States became Involved in Marriage because of Racial Issues.

Traditionally marriages are blessed by priests or elders of a community in public ceremonies that create public recognition of the union. In the U.S., the states did not get involved in marriages until after the civil war. If a couple did not seek a religious ceremony or blessing by God, a ceremony would be performed by a local justice of the peace. Such justices were local community officials. If couples cohabited for more than seven years, their marriage was often considered a “common law” marriage. States were not involved in marriage.

States became involved in issuing marriage licenses in extreme cases after the Civil War when white and black couples could not could not get a local priest or magistrate to perform the ceremony. Today such couples will have no problem in finding such persons to marry them, and the practice of state involvement could be eliminated.

However, it is very difficult to eliminate any state power that has been assumed for whatever reason, even if it runs against the intent of the Constitution. The founding fathers created Supreme Courts to strike down unconstitutional legal practices, however the courts have been derelict in this duty and usually succumb to social fads and fashions and seldom strike down unconstitutional legislation or legal practices.

The Federal Government Became Involved in Marriage in 1921, and the Reasons are Primarily Economic

Rather, the centralization of power—a main concern of the founders—has been the norm more than the exception. In 1921 the U.S. government first became involved in the recognition of marriage when a dispute over miscegenation laws was appealed to the Supreme Court. This opened the door for the U.S. to begin suing estates for inheritance taxes. One can imagine the Supreme Court’s acquiescence to this process, for it was in their interest to create a wealthier federal government. This was a conflict of interest that the Constitution had failed to check.

The encroachment on marriage by the states and the Federal government parallels the encroachment on personal property with the passage of the 16th Amendment a few years earlier. These laws represent the process in which a bottom-up flow of power from people to government became replaced by a top-down flow of power where the people were effectively changed from citizens to servants of the state.

I have argued elsewhere that society is composed three separated, but interrelated spheres: Culture, Economics, and Government. Culture is based on the principle of love, Economics on the principle of the market, and Government on the principle of force. It is wrong to convert marriage into a social institution based on force. Using a constitutional amendment to attempt to dictate either a cultural norm or an economic value is a step towards totalitarianism and social violence.

An End Run Around the Constitution

A Constitution is a set of laws that provide the operating system for a government. It dictates the limits of power and the flow of power. The U.S. Constitution was established as a Republican form of government, meaning it built in checks and balances that both (1) prevented centralization of political power, and (2) protected the citizens from themselves by defining the mechanisms of government process. Amendments to a Constitution should only be made to improve the process of government, not to use the power of the government for cultural or economic purposes.

The founders knew that mob rule would be the outcome of direct democracy, and since the time of Aristotle it has been known that a direct democracy would (1) not protect minorities, and (2) break down into anarchy and violence. They devised a system of governance intended to prevent this. Legislation should be created by the representatives of the people in Congress and checked by the Senators (who were originally appointed by states). Then the President has veto power that takes a higher percentage of the legislature to override. Finally, the Supreme Court should nullify unconstitutional legislation.

However, a constitutional amendment gets around a presidential (or gubernatorial) veto. And, the Supreme Courts have been derelict in invalidating such unconstitutional legislation, and after the 17th Amendment, the Senate is no longer a body that represents the will of the states. Thus a Constitutional Amendment is easier to create than it should be.

In the state of Minnesota in 2008, a Constitutional Amendment dedicating a sales tax was passed by putting it directly on the ballot so the governor could not veto it. It provided a pot of money for the arts and the environment that legislators must divide up each year. This money is outside money appropriated for the arts and environment from the general fund, and recently was not allowed to substitute for bonding to prevent an invasive species of fish at the Coon Rapids dam. It reflects not only an unprincipled method of funding, but has done nothing to curb the growth of duplicating bureaucracies. A Constitutional Amendment defining a cultural belief would be equally as unprincipled.

What Should Be Done

Marriage is a cultural institution based on the love and fidelity of people for one another. It is properly blessed by religious and cultural institutions. The government was brought into marriage originally to provide a vehicle for the expression of this love when no social institution could be found to bless a marriage, or when lower governments sought to deny people rights based on miscegenation (interracial marriage). This entry was the result of the failure of cultural institutions to exercise responsibilities appropriate for the cultural sphere.

Today there are plenty of cultural groups that are willing to bless interracial and homosexual marriages, and the need for government involvement no longer exists. State and federal governments should withdraw from definitions of marriage and allow people the freedom of marriage and assembly as they choose.

Inevitably, questions of taxation and property arise. Perhaps it is time for the government to get out of this as well. For tax purposes, there already exists a system for claiming dependents that can be used without reference to marital status. For property allocation, we should simply demand that people who are concerned about probate should make a will. Failing to do that would lead to probate based on only one marriage, and that would be proof of a marriage performed by a cultural institution.

The intrusion of the state into the cultural and economic spheres is already well beyond that of a free society, and many laws are compounded upon one another because the government made pronouncements on marriage in the first place. Today these laws are nearly all for purposes of using the government to tax or redistribute money. They have nothing to do with love or responsibility. Ultimately, I believe we should undo almost all government laws related to marriage and return to a system in which marriage is left up to the individuals and communities involved.

The conclusion is this: If you want people to create families that consist of one man and one woman, you need to make such families that are so fantastic that everyone wants one. This is the principle of love, volunteerism or attraction at work. If you impose it as law, you are not showing the way or being constructive. Passing a law will not make such ideal families appear, it does not guarantee anyone will be happier. It is a cop out for not being able to convince people that your way of life is better by example. So, you turn to force and want to order people to be happy. It just won’t work.



Why Christians Should Oppose a Government Definition of Marriage — 16 Comments

  1. So then you are saying that all property inheritance from one spouse to another will now be taxable? Because government involvement in marriage is key to making it so one spouse isn’t destroyed by taxes when they lose the other.

    Yeah, “write a will” is an easy answer. I’m guessing it is coming from someone who doesn’t fully understand what having a marriage that is recognized by the state does for that family. Or rather, isn’t coming from someone who can do all those contract things now, and still misses out on what married couples get thanks to governmental recognition.

    • So then you are snyaig that all property inheritance from one spouse to another will now be taxable? Because government involvement in marriage is key to making it so one spouse isn’t destroyed by taxes when they lose the other. Yeah, “write a will” is an easy answer. I’m guessing it is coming from someone who doesn’t fully understand what having a marriage that is recognized by the state does for that family. Or rather, isn’t coming from someone who can do all those contract things now, and still misses out on what married couples get thanks to governmental recognition.

      • Constitutional process, the main point of this article, is far more important than the individual issues like inheritance taxes that are governed by individual laws that are possible because of a sound legal system. Government enforces contracts and assesses taxes in other areas of human interaction besides marriage, for example a contract that is between a buyer and a seller. There is no reason one person can’t will property to another without marriage, and there is no reason the government must tax property willed by one person to another. The idea to amend the constitutional process to pass a law like this in order to get around checks and balances is a step to the disintegration of the entire system, and shows the desire to get something for an interest group even if it means bringing down the integrity of entire legal system.

      • Must have been distracted by the dvsiliehly handsome face in the Video link.My point was that the letter of the amendment doesn’t change the core argument for/against it. The argument is around whether society allowing people of the same sex to enter into a recognized marriage is such a threat to the social order that the government has to prevent it. Clearly, allowing races to mix is not a threat to society (as many felt), so we should be glad the miscegenation laws were tossed. On the other hand, allowing anyone to marry anyone else, in any numbers, would be a threat to social order and could be reasonably resisted, on the fear that it could effectively eliminate the institution of marriage, which could be seen as destabilizing to society. So the question remains, is allowing men to marry other men, women to marry other women, an overdue liberation, like ending miscegenation laws, or is it a move towards destabilizing an important social institution? Government has a duty to maintain some degree of social order, though the Libertarian might set the bar a lot lower than the Evangelical or Socialist on what’s appropriate. We can (mostly) agree on extremes of acceptable laws; no mass orgies in the town square, even with a permit? Seems reasonable. Felony status for adultery? Seems a bit intrusive. Blue law closings on God’s day? Mind your own business.

  2. “and still misses out on what married couples get thanks to governmental recognition.” This is the main problem. Since the definition of marriage is contested, the creation of laws to favor a group with the loudest lobby is an example of tribalism. Not much different than Tutsis deciding their folks will get more state money than Hutus. This is the mobocracy that everyone since Aristotle has sought to avoid, and is worse than social engineering by the government, which is also bad.

    States should simply recognize private marriages as contracts between people, just as they do other private contracts, when it comes to inheritance.

  3. Along with TK, I’d agree with this libertarian stance regarding marriage. I would agree with the First Amendment argument that the government should not interfer in the practice of religions; in particular the definition of marriage within religious tenets. Yet, a serious question remains on what is the proper role and involvement of government in the cultural institution of traditional families ? What determines the cultural and social health of a society ? Two kinds of views would perhaps have to be reconciled, a naturalist point of view and the libertarian standpoint.
    No species ( or society ) survives without lineage. And, to be human encompasses the capacity for choice. If a people seeks to sustain a legacy it must ensure and uphold the social structures of ideal families as the essential genetic building block of human relationships. Yet, cultures exist in dynamic tension with the knowledge of good and evil which is human being’s capacity for choice. As it seems the naturalist view has a long term prespective while the libertarian view point is based upon an immediate term. From a government policy point of view the naturalist standpoint is essential and foundational. Government policy cannot ignore the necessity of the family structure for its cultural and long term ethical survival. At the same time governments recognize the unrestrained liberatarian standpoint for individuals to exercise the right to choose … including choices that would lead to self harm in the short term. Government policy should reflect a sustainable understanding of these two views – naturalist and libertarian. As we know beneath the mainstream are subcultures and the border lines between the two camps have become blurred. The growing tension between the traditional naturalist standpoint and immediate unrestrained libertarian prespective is not going away.

  4. Robert, You bring out a good distinction between government and natural procreation. The main point is that a government is not a biological institution and it implements social laws based on force. Since force is not the proper basis for a marriage, a government is the wrong institution for a society to expect biological and cultural questions to be addressed.

    Perhaps, at best, government can enforce laws against rape and child abuse and other behaviors in which people harm one another.

  5. Thanks for your article. The local paper just printed my letter inspired by your thinking (hopefully) on this, see:

    They xxx’d out my reference to hypothetical “homo, hetero,
    polygamous or polyandrous” marriage, probably in order to make
    me sound more left wing. So I’m not happy about that.

    The original version is below.


    In the San Leandro Times we see the two poles of the Gay Marriage dispute:
    — Mayor Cassidy and others advocating change of Marriage Law to
    include same-sex parties
    — Leo T. West supporting traditional Marriage Law which allows only
    opposite sex parties

    Let me propose a reconciliation: that Government get out of the
    business of Marriage, gay or otherwise.

    The problem is confusion of the role of church and state on both left
    and right. The left / gay call for a legal ‘right to marry the person
    they love’ is a legal imposition on what properly should be a matter
    left to the church (or anti-church) community of one’s choice. And the
    same problem holds for the conservative position that there should be
    a government law defining what marriage is. Government has no business
    defining marriage, or judging the morality of it, be it homo, hetero,
    polygamous or polyandrous because marriage is essentially a matter of
    individual conscience and one’s community of faith.
    Legislators have no business meddling with it
    now anymore than they did after the Civil War when they prohibited
    mixed race marriages. There is no ‘right to marry’ because the
    government has no right to grant it. If you want to get married, go to
    the theistic (or atheistic) community of your choice. Government
    should simply regulate civil unions as one of many associations
    (corporations, partnerships, etc) for the purpose of conducting
    business, taxation, inheritance, guardianship, etc.

    – Richard Eisenman

    • Richard, You certainly got the gist of my article. Government and culture (culture is more than just religious institutions) are two different spheres of society. The primary principle of government is force, whereas when you have freedom of religion, speech, and assembly, the primary principle of culture is voluntary attachment. When government tries to impose culture on citizens–regardless of whether it is a definition of marriage, or a norm fro birth control–it violates the establishment of religion clause and reverts to the form of state imposed on citizens by conquerors rather than a society based on social contract. It is what sociologists call structural violence. Interesting the left used to be the side that complained about structural violence, even though they seem to cause more of it today. We have seen much deterioration in recent years as special interests have coopted government into making laws that violate the intent of the First Amendment that generally have selfish and financial motives underlying them, even if they are presented as a public good.

    • Some states rquiere auto insurance while others don’t. It’s different, however, to whether or not the federal government can rquiere people to buy health insurance, not a state.The Constitution specifically defines the role of the federal government and then states that everything else will be handled by the states. While the federal government has really expanded its role since those days, it might be time to start making some of these cases.In addition, as anyone who has had to buy health insurance outside of an employer option knows, it is not auto insurance.Right now, we’re paying about $100 a month for full insurance on two inexpensive cars, which isn’t bad at all. It was a lot more in Mass. for one car. But this kind of forced payment, when it is forced, is not a health care payment of 10 or 12 times that amount. How do I know? I’ve done it before.When I had a job with a company that didn’t offer health insurance, from 2005 to 2007, I was buying the least expensive plan I could find, Anthem BCBS. It was $917 a month for two adults and one child, with huge deductibles and co-pays. In the 2.5 years we had it, I think we used it a few times, and didn’t get much coverage at all. Assuming now, with four people, it would be $1,200 or more, easy.How is a family that isn’t filthy rich supposed to be able to afford that? They can’t. This makes the Obamacare law, as it stands now, simply impossible to adhere to. And yet, in a couple of years, millions of people will be forced into this situation, lining the pockets of more insurance companies. It’s basically corporate welfare enforced by the IRS. And it cost the Democrats control of Congress.

  6. Lauren Taylor, a professed “progressive lesbian” is “not doing a happy dance about President Obama’s support for gay marriage” in a recent Washington Post op-ed. Her argument shows some appreciation for the limitations of special interest advocacy for access to entitlements. As one commentator on her article quotes Groucho Marx “I want to join that club and beat you over the head with it”; the club metaphorically being marriage law and the implicit “structural violence” of such law that Mr. Anderson refers to. This makes me hopeful that elements of the left and right could find common ground by focusing on “Constitutional process”. See: http://www.washingtonpost.com/blogs/post-partisan/post/no-celebration-for-this-lesbian/2012/05/10/gIQAlPxfFU_blog.html

    • The main issue here is whether people are making freedom, civil rights, and constitutional principles the main issue, or whether they seek to use government to gain entitlements or enforce morality for personal or group advantage. Ironically, both social conservatives seeking to impose morality and gay activists seeking entitlements often fall into the second camp and cause structural violence with their policies. Lauren could be right that the President, who is viewed as a champion of civil rights, might be taking the cause of civil rights backwards on this one, as he did by forcing Catholics to pay for other people’s birth control in Federal healthcare legislation. Pluralism in the US only works when such moral and social policies are determined by lower levels of society.

  7. Homosexual marriage? You can do it , BUT its not natural.So its a deviation. Like you can walk backwards BUT its not natural.

  8. There are a few flaws: The author mistakenly focuses on “love” instead of commitment as the key component of marriage, and ignores the role of marriage in bearing and raising children. The author ignores the implications of marriage law on religious liberty, particularly the right of people to not recognize marriages according to their beliefs. The author also does not go into enough detail on how existing or new contract law can be used to resolve the issues of benefits in a domestic partnership. That said, this is a good summary of the reasons for not getting government involved in marriage.

    • Thank you for the comment. You are correct that, from the standpoint of the partners, marriage is a commitment, although hopefully it will be based on love. Also, the entire social reason for the institution of marriage is the personal care of children, and the future life of the community. And, this is another reason to keep the government out, because governments provide impersonal care and this is not what children need.

      My whole argument was for religious and cultural liberty. If the government is not involved, there is no need for one person or group to recognize the marriages of other groups.

      I did not want to get into details of contract law, but one could compare the government’s role to its role in settling other disputes. If you buy a television from a store, there is a sales contract. The government does not determine the price or who buys it, nor does it care what other people think of that particular sale. However, if the buyer fails to pay, or the seller misrepresents the product, the court gets involved for purposes of settling the dispute and this includes ensuring people honor the commitments they made to one another in the contract.

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