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.