Gay Marriage

April 30th, 2013 - by Quincy

Despite efforts to demonize opponents of gay marriage as hate-filled bigots, the fact remains that many, if not most, oppose gay marriage out of sincerely held religious belief. I count myself among this group. I believe gay sex (just like extramarital sex) contradicts God’s law, and I believe gay marriage runs contrary to God’s plan for mankind. Before you accuse me of discarding the First Amendment, let me clarify that I do not believe that religion should dictate law. But neither do I believe that the civil institutions of a country should promote or encourage immorality.

As I explained in a previous post, no one has a right to get married. Although definitions of marriage vary, virtually all of them include an aspect of formal recognition of the union by someone else. You can’t really believe in a right to get married unless you believe in a right to dictate to others what to think. Put another way, claiming a right to marriage would be like claiming a right to the good opinion of those around you. It’s absurd. Let me add that under this reasoning, heterosexual couples don’t have a right to get married either. Since marriage involves recognition by others that a valid union has been formed, a marriage depends upon the consent of the person/people whose recognition is being sought.

Of course, what thoughtful proponents of gay marriage mean when they talk about gay marriage rights is the right to equal treatment by government institutions. That isn’t a trivial argument. If our government is going to treat people differently, it must have a valid reason. We treat murderers differently from non-murderers because they have violated someone’s right not to be killed. Most everyone recognizes that committing murder is a valid reason for treating a person differently. In the case of gay marriage, the fundamental disagreement is whether the gender of the people asking for formal recognition by government of their union is a valid reason for treating them differently. In other words, the disagreement is whether the union of two men or two women is meaningfully different than the union of a man and a woman. Opponents of gay marriage say yes; proponents say no. Because this disagreement for many is motivated by religious conviction, no compromise is possible. So how do we resolve the conflict?

The obvious solution to the gay marriage dispute is to get government out of the business of marriage altogether. Why should two people need the government’s sanction to unite their lives? Why not leave marriage to private institutions like religions? That way, those that value marriage as a religious commitment will comply with the requirements of their religion to get married and those that value marriage as a something else can hold a ceremony of their own design. Eliminate marriage as a legal criteria altogether and the whole problem goes away.

I have heard some object that this would cause problems with the tax code or inheritance law. Of course there would need to be some legal adjustments, but they could be accomplished easily enough. That’s no reason to carry on a system that inevitably causes conflict. Another objection I have heard is that if the government weren’t issuing marriage licenses, the children of the couple would not be protected in the event that the marriage dissolved. This is also untrue. Child custody and child support depend upon the relationship between the child and the parent, not the relationship between the parents. A child’s father has a legal obligation to provide child support and has a right to custody regardless of whether he is married to the child’s mother.

Please don’t misunderstand. I wholeheartedly believe that a child’s best chance and happiness and success is in a traditional family, one with both a father and a mother who love, honor, and respect each other and sacrifice for their children. But government marriage has not been and will not be enough to save the traditional family. In fact, it is worth considering whether the instability of marriage in today’s culture may in part be due to its transformation from a religious commitment sanctioned by God into a legal relationship sanctioned by government.

So, do I oppose gay marriage? Yes, because as things stand today it amounts to a formal, societal stamp of approval for something that I believe is morally wrong. No judicial ruling or congressional enactment will change my opinion in that regard. However, if our society has reached a point that it can no longer recognize a meaningful difference between a homosexual couple and a heterosexual couple then I support getting government out of marriage altogether. Am I missing something? What are your thoughts?

6 Responses to “Gay Marriage”

  1. AdLib says:

    I wholeheartedly agree.

    However, anti-gay advocates of state-controlled marriage will cry out, “How will you possibly prevent things like incest and under-aged marriage?” Silly argument, I know, but what do you say to them?

  2. Quincy says:

    AdLib,

    I find these concerns puzzling. Government marriage licensing is a poor tool to combat child abuse or any other kind of criminal behavior, and every state already criminalizes sex between adults and minors.

    I suspect that the reason for these concerns is that a government marriage license is a defense to statutory rape. With parental consent minors of a certain age can get married, and their spouses don’t run the risk of criminal prosecution. But it would be easy enough in such cases to replace the government license with a simple affidavit from the parents granting consent for the marriage. Criminal statutes could still establish the minimum age at which such parental consent would be a valid defense.

  3. Carlene Cox says:

    Quincy —

    You articulate your point exceptionally well. I disagree wholeheartedly that a union between two men or who women should be treated differently, and I think the idea that children have a better chance at happiness and success with different-gendered couples is ridiculous as there’s no valid evidence to support that. However, I agree 100 percent that government doesn’t need to be in the business of legitimizing marriage.

    This was the most thoughtful, careful opinion I’ve ever read from someone with a view opposing my own. If this could be the basis of discussion, and not name-calling and labeling, I think the conversation on gay marriage would be much more advanced than where it stands today.

    Thanks – this was a good read.

  4. Quincy says:

    Carlene,

    I appreciate your comments. Regarding whether a traditional family with a father and mother provides a better chance for happiness and success, my beliefs on that point are based on faith (see here) rather than empirical study. I have not reviewed the empirical evidence on the topic. I expect that, like most social science research, any facts gathered are open to many different interpretations.

    That said, by getting government out of the way, people can disagree about these issues without it becoming a source of contention–even when the disagreement is deeply felt. Thanks again for your thoughts.

  5. Adam says:

    Thanks for the article and for continuing to write. I’m a regular reader. Your argument, as I understand it, is that no one has a right to marry. Therefore, government can refuse to recognize homosexual marriage without affecting the fundamental rights of individuals. While I agree that people do not have the right to marry someone of the opposite gender, I am persuaded by the argument that there is a right to heterosexual marriage.

    The USSC, in Loving v. Virginia, 388 U.S. 1 (1967), stated that marriage is a fundamental right: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. . . . Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” Although the Loving court recognized that marriage is a fundamental right, that case and its progeny have been criticized on the ground that the right to marry is nowhere found explicitly in the Constitution.

    I personally find the religious justifications for the right of marriage more convincing. We know that marriage is an inalienable, God-given right because God commands marriage. The command to marry may be inferred from the command to “be fruitful, and multiply, and replenish the earth” (Gen. 1:28), along with the commandments prohibiting adultery and fornication (See e.g. Ex. 20:14). Clearly, God gives the right to do that which he commands. Therefore, the right to marry is inalienable and God-given. The Declaration of Independence states that the protection of such inalienable rights is the reason why governments are instituted. At a minimum, government protection of the right to marry must involve government recognition of marriage.

    Government recognition of marriage also protects another inalienable right: the right of children to be raised by a mother and a father who are faithful to each other. We know that this right is inalienable because God protects it from infringement with laws punishing adultery and fornication. (See e.g. Ex. 20:14.) We have witnessed the devastating consequences that have occurred throughout the world when children are denied the right to a father and a mother. I do not believe government would be acting outside of its proper scope by taking proper measures to protect the inalienable rights of children.

    I would not apply the foregoing Biblical rationale for government recognition of marriage to homosexual marriage. In my opinion, throughout the Bible, from the Old Testament to the New Testament, the Bible categorizes homosexual practices as sinful. Furthermore, Jesus himself affirmed the teaching in Genesis that marriage is between a man and a woman. (Matt. 19:3-9.)

    One argument acknowledges that people do have a fundamental right to marry, but asserts that people do not have the right to have government recognize their marriage. However, if government does not recognize marriage, the fundamental right to marry would be undermined significantly. To be maintained, the rights and responsibilities of marriage and family must be enforceable by an entity wielding the police power, and churches, thankfully, do not have that power. Some of the rights and responsibilities of marriage and family that must be enforced include: (1) property rights related to marriage (e.g. division of property in divorce); (2) the duties of support that spouses owe to each other and to their children; (3) at least historically, the duty of fidelity between spouses was enforced through laws criminalizing adultery and laws related to “fault” divorce; (4) the right of parents to have custody of their children born in the marriage; (5) inheritance laws based on marriage and family relationships. I think we would be surprised at how quickly families and society would disintegrate if the government ceased to recognize marriage. To rely on genetic paternity tests in every case to determine things like child support and the right to custody is unworkable and would produce chaos, disorder, and disrupt the stability of families and children.

    I believe we have already experienced significant negative consequences when government has passed laws that tend to reduce the significance of the institution of marriage. For example, “A paper published in The Harvard Journal of Law and Public Policy, written by Douglas Allen, on the economics of same-sex marriage, argues that the introduction of no-fault divorce led to a six-fold increase in just two years after a century of rather stable divorce rates. Also, the law increased the rate at which women entered the workforce, increased the number of hours worked in a week, increased the feminization of poverty, and the age at which people married.” (http://en.wikipedia.org/wiki/No-fault_divorce#Impact).

    Sorry about the comment length, but thanks for the thought provoking article!

  6. Quincy says:

    Adam,

    I am sure it comes as no surprise when I say that I don’t give much weight to SCOTUS when it comes to philosophy of law. Unfortunately their rulings have more to do with political maneuvering and power preservation than thoughtful jurisprudence. I strongly disagree with designating civil marriage a fundamental right. The Loving case could have been easily decided on equal protection grounds without dabbling in fundamental rights language.

    The point you make about a religious justification for the right of marriage doesn’t persuade me. It is important to distinguish between the right to marry and the right to governmental recognition of a marriage. All of your arguments are compelling when taken in the context of the right to marry, but I don’t believe they apply to the right to governmental recognition of a marriage. When God commanded Adam and Eve to multiply and replenish the earth, there was no county clerk or justice of the peace to stamp a paper declaring that the government sanctioned their marriage and endorsed their union. I think the only fair inference from scripture is that God sanctioned their marriage. That should be enough for anyone.

    I agree that it is fair to infer a right to marry from God’s command to multiply and replenish the earth, as you said. But I don’t think that means government should license and regulate the exercise of that right. As for government protection of the right to marry, I think that it should be protected in the same way that the right to life, liberty, and property should be protected: by preventing tortious or criminal interference with the private exercise of the right.

    Your argument for government regulation of marriage from a child’s rights perspective is unsustainable, I think. I agree that children have a right to a two-parent family, but it is not enforceable by civil government. The only way to enforce such a right would be to force unmarried parents to marry, or to force married parents to stay married. How would that work? The government doesn’t have a very diverse toolbox to choose from; it can only punish by taking property, liberty, or life, and I can’t agree to go down that road. What would the law require? Cohabitation? Kind words between spouses? Spouses serving one another? Would the law try to coerce the perpetuation of a loving relationship? Because in my mind these are the things that a two-parent family offers as advantages to a child born into one. A paper with a stamp saying that the government recognizes the parents as married doesn’t add any real advantage to the child, and government can’t provide much more than that.

    Lastly, in response to your comment about the need for government to enforce marital responsibilities with the police power. From your list, items 1, 2, and 5 are issues having to do with property rights, and many states recognize common-law marriage and biological relationships as the basis for enforcing those property rights—no government license required. Parental rights, your item 4, isn’t dependent upon marriage but upon parentage, and paternity tests only take a few days to accomplish—much less time than it takes to get onto the average court’s docket for a child custody case. Fidelity, your item 3, is not now nor has it ever been successfully protected by marriage licensing. In my opinion, government licensing transforms marriage from a religious or personal commitment to one’s spouse into a government permission slip. It degrades the significance of marriage to the level of obtaining a driver’s license. It places marital fidelity on the same level as speed limits and trespassing laws: something to be considered, but only obeyed when likely to get caught. You worry that social collapse will quickly follow government withdrawal from the marriage business, but how does that jive with the centuries of civilization prior to the institution of governmental marriage licenses. Stability of society certainly does depend upon the stability of the family, but I do not see a causal relationship between the stability of the family and government marriage licensing.

    Thank you for your comment, and don’t mind the length. I appreciate hearing your point of view, so take as many words as you need to explain it right.

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