Brief and Direct: Is Marriage a Right or a Rite?

How can a right require the continuing agreement and support of another person?

Another in a sporadic series of short commentaries on current events

Marriage Equality?

"Marriage Equality" is a recently-coined euphemism for "gay marriage," which is itself a euphemism as well. Our tender psyches apparently don't respond well to euphemisms that get too close to saying what they mean, especially in advocacy advertising. Still, it's a great phrase that conveys exactly what its proponents want to convey--that everybody has a right to marry the spouse of his or her choice, gay or straight: marriage equality! The advertisements are superbly crafted.

I won't go into the arguments that support that position; you've heard them all before. But all those arguments apply equally well to numbers greater than two. And if you believe that there is a Constitutionally protected "right" to marry  whomever you choose, you must also agree that the same right applies to marriages between more than two people. Logically, the connection is undeniable. If the right exists, to restrict it to two people we would have to find specific language in the Constitution that does so, and there is no such language.

So is it a right?

An argument can be made that marriage is NOT a right because it imposes a burden on someone else to fulfill it, not just one time but on a continuing basis; that is, the other partner has to be willing to marry also. If we had a right to marry, we could just pick out a spouse and say, "Tag, you're it," and it certainly wouldn't require approval from a government to do so. A right either exists or it doesn't; it can't depend on the continuing agreement and support of another person to exist, as does a "right to marry." I believe that argument is a compelling one, but a court might disagree.

I believe what we really have is a right to remain single, and a process exists to enter into marriage if we can find a qualifying and willing spouse. That the government has butted into the process is just a complication, but it's a big one, because it has granted many special privileges, and some penalties, to people who are married.

What does "marriage" mean?

Or perhaps, why does marriage mean what it means, and who gets to change the definition? Or more specifically, who gets to decide who qualifies as a spouse? Is it a court? A statewide initiative? A legislature? A church?

Those questions have been all tangled up by our over-reaching government which has created onerous laws and wants to mitigate their effects on married couples, and those laws use the terms "husband," "wife," "spouse," and "marriage" in legal definitions, mostly in tax law, but in contract and business law as well, and in the most obvious case--in insurance and employment benefit plans. Thus, calls to "get the government out of the marriage business," are way too simplistic to provide a real resolution to our current debate. The legal changes required are probably even greater than those that would be needed to overturn ObamaCare. But it's hard to argue that anybody but the government gets to define what a legal marriage is, and that includes setting rules as to what minimally constitutes a qualified spouse. Setting a minimum age for marital consent is one example that varies among states.

The societal changes might require even more effort, if decreed by the government, because marriage is more than a legal state, it's a social institution, a moral convention, a state of being. People who are married are expected both by society and by the law to behave in certain minimal ways. Sometimes people are treated, even legally, as if they had been formally married simply because they behave that way. And there is probably plenty of societal support for the legal concept of civil unions, because they attempt to bring some order and fairness to the chaos created by governmental marriage privileges. But the social definition of marriage is defined primarily by societal norms and common usage. Its history is thousands of years old, so naturally there is resistance to change, even resistance to changing a legal definition. And there isn't a requirement that it have the same definition as the legal one.

Conclusion?

If marriage is determined by the Supreme Court to be a "right" rather than a "rite," many unwanted consequences will logically follow. Courts will have more and more decisions they won't want to make, and it will never be resolved. But if it bypasses that trap and allows the decision to remain in state hands (overturning the 9th Circuit and lower federal courts at the same time), without creating a right to marry, it eliminates it as a federal judicial problem. Still a federal legislative and executive problem, perhaps, but it will be clear that there is no Constitutional requirement to federally define or even deal with marriage at all.

This doesn't solve the Defense of Marriage Act quandary (that's a separate issue, and it's either Constitutional or not), but it would allow states to define a marriage as they see fit, as could the US Congress, to apply to laws where it is necessary. But the definition could be anything that makes sense, for the state or for the US.

Naturally, this won't satisfy many people. The demand for "Marriage Equality" isn't a logical one, it's a legal and emotional one. But civil unions could and should be readily available in all states, legal constructs that should confer the same legal rights on the participants that marriages do, for more reasons than those put forth by gay-marriage proponents. What is the demand that they be called "marriages" about, anyway? An emotional, subjective, and extra-Constitutional plea for "fairness." Without a justifiable civil right to marry, we are left with only a demand that society change its opinion, and that can't be decreed by a court.

What a court decision affirming California's Proposition 8 will do is allow the voice of the people to count, and for other voices to be heard either directly or through their representatives, and it will mean the final decision is a popular one rather  than one decreed by a court of nine judges.  If "marriage" is not a "right," there will be far fewer reasons for federal courts to intervene in state business.  Better for the Court, and better for the unruly civil union called The United States of America.

A shorter version of this argument is posted at RedState.