- The American Conservative - https://www.theamericanconservative.com -

The Marital Is Political, ctd.

Do read David Schaengold [1], who also has more here [2]. I suppose I don’t – or at least, try not to – share the conviction that it’s simply impossible for our society to take on the question of what sorts of goods are embodied by homosexual unions, but as I could have made much clearer in my earlier post [3] the last couple of sentences in this conclusion [1] seem quite right to me:

… given the thrust of public opinion, either we’ll get private marriage, or gay marriage. The latter seems much preferable to me, even to a reactionary like me. Gay marriage might lead to the destruction of the institution of marriage, but privatizing marriage would be the destruction of the institution.

2 Comments (Open | Close)

2 Comments To "The Marital Is Political, ctd."

#1 Comment By Chuck Anziulewicz On June 4, 2009 @ 1:13 pm

Well the problem is that “defining” marriage as an exclusively heterosexual institution violates the 14th Amendment, which states:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This is a law that applies to all of us — Straight, Gay, Black, White (and everything in between); able-bodied or disabled; Christian, Muslim, Jew, or Zoroastrian. That’s why I like living in America.

So if your belief is that Gay folks are committing an abominable sin and will face fiery judgment from their maker, well then that’s your right. But co-opting the law to force people to do your bidding is the real abomination.

What are the solutions here? Well, first of all the Defense of Marriage Act (DOMA) will ultimately have to be repealed, perhaps at the suggestion of the Supreme Court. I have read that even Antonin Scalia thinks DOMA is “probably unconstitutional,” based on the abovementioned 14th Amendment.

What then? Some people (including both President Obama and former Vice President Dick Cheney) have suggested that the issue of marriage be left up to the states. Of course this will mean an end to the approximately 1,100 federal benefits and responsibilities that are conferred on married couples. Federal tax law and Social Security benefits could no longer apply to married couples, because it just wouldn’t do if a Gay couple who was married in Iowa, for instance, became automatically UN-married once they moved somewhere else.

On the other hand, if the federal government wanted to STAY in the marriage business, some kind of legally comparable agreement would have to be made to incorporate Gay couples from all 50 states into the system.

If the government still considers “marriage” to be a religious designation rather than a legal one, it has no business making any laws concerning that institution. If, as confirmed by its actions, the government believes “marriage” to be a legal contract, it has no business denying that contract to any two people, no matter what their gender might be.

Let’s say, for the sake of argument, that the Supreme Court ruled that there was no Constitutional justification for denying Gay couples the same legal benefits and responsibilities that Straight couples have always taken for granted, but that those benefits and responsibilities could be granted to Gay couples under a different term … such as “civil unions.” The rights under tax law, Social Security, etc. would be EXACTLY the same for Gay and Straight couples; only the terminology would be different. Opposite-sex couples would be allow the option to “marry,” and same-sex couples would be allowed the option to enter into “civil unions.” Social conservatives could keep the term “marriage” for themselves, and Gay couples would be granted equal protection as specified by the 14th Amendment.

Frankly, I could live with that. How about YOU?

#2 Comment By Ken On June 4, 2009 @ 8:59 pm

Bride+groom marriage licensing is open to all people regardless of sexual orientation. That someone does not want to use a state license as it exists does not necessitate the licensing be changed.

The 14th Amendment and the rest of the Constitution was written by people who never questioned that marriage united the sexes, just as it had done throughout human history. If that Amendment means that all pairings must be treated equally, then siblings, partners in crime, people already married to others, and business partners can’t be denied marriage licenses, too.

But thankfully, it is constitutional to treat diffrent kinds of voluntary associations differently, and a pairing absent one of the sexes is differently different than a pairing with both sexes. Just ask lawyers who sued to break up “men only” clubs. Or, better, ask the gay person who “can’t” marry someone of the opposite sex. Why? Because there IS a difference.

For more, follow my link.