By Steve Greenhut
As a kid, I remember watching a rerun of the 1952 I Love
Lucy Show episode in which Lucy finds her marriage license
while cleaning out a closet. She discovers, to her horror, a typo
that refers to husband Ricky’s last name as Bacardi rather than
Ricardo, which causes her to question the legality of her
marriage.
The ensuing hijinks are the makings of sitcom legend. I’ve
thought about that episode in the years in which the contentious
battle over gay marriage has unfolded, as it touches on a key part
of the public-policy question embodied in the Supreme Court's two
big decisions this week. How important is the approval of the state
-- epitomized by the marriage license -- in sanctioning a
marriage?
In 2013 rather than the 1950s, a technical error on a marriage
certificate wouldn’t cause anyone consternation. But let’s say, for
some reason or another, the government invalidated my marriage.
Would it matter?
Not really. Marriage is primarily a pact between two people and,
in the view of many, a sacrament of the church. The state merely
recognizes this contract. If, say, a totalitarian government (think
the Khmer Rouge or others like them that have meddled in such
things) dissolved my marriage, my wife and I would still be
married. The state could make our lives miserable, but it couldn’t
end our marriage.
Yet that point seems lost these days. The public battles involve two sides who see the government as the means to legitimize their viewpoints. One side says gay marriage is wrong and the other says that it is the same as any other marriage. The two sides will never see eye to eye.
Yet that point seems lost these days. The public battles involve two sides who see the government as the means to legitimize their viewpoints. One side says gay marriage is wrong and the other says that it is the same as any other marriage. The two sides will never see eye to eye.
The governmental “benefits” at the heart of many of the
gay-marriage battles are mostly rhetorical window-dressing. The
state shouldn’t be handing out many privileges or payments and
to whatever degree issues involving hospital visitation and
inheritances are an issue, their terms and conditions can
easily be worked out without a cultural war over the meaning
of “marriage.”
Unfortunately, the court’s meddling has ensured that such a
battle will keep going.
I’m not unsympathetic to the high court’s 5-4 decision to
overturn most of the 1996 Defense of Marriage Act, designed
specifically to deny governmental benefits to gay couples and to
allow states to refuse recognition of gay marriages from other
states. If the government gives out stuff, it’s reasonable to
insist that it give it out in the most fair-minded basis.
The majority’s rhetoric reflects its desire to take a noble
stand in this cultural divide. The court's dissenters were right
that the majority opinion was overheated. But at least the decision
made some legal sense. “The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage
and injure those whom the state, by its marriage laws, sought to
protect in personhood and dignity,” Justice Anthony Kennedy wrote
for the majority.
By contrast, the court’s decision (actually, a non-decision) on
California’s Prop. 8 seemed lifted out of “Alice in
Wonderland.” In 2008, voters approved this constitutional ban on
gay marriage. Jerry Brown as attorney general and now
governor opposed it, so he refused to defend it against court
challenges. The Supremes refused to rule on the merits of the
statute because its defenders didn’t have "standing." Only the
state government apparently had such standing -- but that
government refused to do its duty.
As National Review’s Hadley Arkes put it, “If the state
has a Democratic governor … he may declare now that he will not
enforce the constitutional amendment, for he thinks it runs counter
to the federal Constitution.” The meaning is even broader and more
disturbing than that. Top officials of all parties now
have de facto veto power over all voter initiatives. They simply
need not defend in court any initiative they don’t like and there
is no one else the high court will allow to defend it. That’s an
anti-democratic precedent.
There’s no doubt the courts, legislatures, and public opinion
are moving in a pro-gay-marriage direction. Time magazine
was right to declare this “one of the fastest civil rights shifts
in the nation’s history.” The culture has shifted. That part
doesn’t bother me. I have no problem with gay people getting
married. But it disturbs me when the battles are fought in the
political system rather than in the cultural arena. Both sides are
responsible for the over-politicization of this personal and
cultural matter, by the way.
The best solution always has been the separation of marriage and
state. If my priest decides to marry gay people, then my fellow
parishioners would have every right to be upset about that based on
their cultural traditions and understanding of Scripture. If your
pastor wants to marry gay people, then it’s none of my business.
The terms of marriage should be decided by religious and other
private organizations, and the state shouldn’t intervene short of a
compelling reason (i.e., marriage by force or with children).
Liberals were more open to this "separation" idea back when
conservative pro-family types were ascendant. Now, some
conservatives are understanding its merits as a more
liberal view is ascendant. Conservatives should have listened
when they had some bargaining power, but everyone wants to impose
their values on others by using government.
Government neutrality -- or the closest we can get to it -- is
the best way to ensure fairness and social peace on this and most
other social issues. Marriage is too important of an institution to
be dependent on the wiles of the state. Do we really care if the
state validates our marriage licenses?
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