In response to my post yesterday regarding the suitability of marriage as a topic for inclusion in the Constitution (as the topic of religion is included) a friend offers the following analysis, which I found as thoughtful as anything I’ve seen on the subject:
“I’m not sure that the analogy to the First Amendment’s guarantee of religious liberty is altogether apt. The Free Exercise Clause is a limitation on federal power (and state power, too, I guess, insofar as First Amendment protections apply by ‘incorporation’ under the Fourteenth Amendment to the states) to interfere in a person’s inalienable right to ‘practice his own religion,’ etc., etc. There is no equivalent inalienable ‘right’ to ‘get married.’ As a matter of law, the institution of “marriage” is itself the product, the creation, of the exercise of state power.
“This is the biggest problem I have with all these debates over same sex ‘marriage.’ Much of the discussion, on both sides, is fundamentally wrong-headed. As soon as somebody begins to argue about whether this group of persons or that group of persons should, as a matter of law, be ‘permitted’ to ‘get married,’ they’ve gone off the conceptual rails. (Libertarians are among the worst offenders in this regard.) Marriage as a religious or cultural institution is irrelevant to the legal debate. In the legal context, what we call ‘marriage’ is a particular legal status that the state itself has chosen to extend to a particular relationship into which persons have entered.
“To put it in concrete terms, it matters not at all to me if the two gay guys who live a couple of houses down from us consider themselves ‘married.’ It matters not at all to me if they’ve found some church that has extended its blessing, with a ceremony, ring-bearer, bouquet and band, and deemed them ‘married.’ It’s really none of my business. If and when, however, the issue becomes whether the State of Maryland, as a matter of law, is to assign some sort of legal status to their relationship, then it is my business (if only by extension as a citizen in a representative form of government).
“That’s the point which so many people seem to keep missing. In the context of public policy, state power, and the law, ‘marriage’ is not itself a ‘right’ (even if, as I would concede, the cohabitation of two consenting adults is some sort of inalienable right). Rather, ‘marriage’ is an action taken BY the state itself, in its assigning legal status to a particular relationship between two (or more?) persons. The homosexual who argues that the state shouldn’t ‘stand in the way’ of what he asserts is his ‘right to get married’ has got it completely and utterly backwards: in truth, he isn’t asking for the state to ‘get out of his way.’ Rather, he’s demanding action FROM the state, that action being that the state given a form of legal recognition to the same-sex relationship of his choosing. That’s why the libertarian argument that the ‘state has no business saying who can get married’ is so fundamentally fouled up as to be postively laughable. The only entity that CAN say who can get ‘married’ is the state.
“I suppose the point of all of this is, while it was appropriate for the Constitution, in the Bill of Rights, to specify that there are limitations on the power of the government (be it federal or state) to infringe on a person’s religious liberties, it is hardly the same thing as saying that it is appropriate for the Constitution to define, as a matter of law, what ‘marriage’ is. That, to me, is so fundamentally a organic ‘police powers’ sort of thing that it properly rests with the individual states, not the federal government.”
My friend acknowledges that the Constitution’s Full Faith and Credit Clause may undermine the ability of the individual states to decide the issue on their own. To that extent, he suggests that the answer lies in the following amendment: “”Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State, EXCEPT NO STATE SHALL BE REQUIRED TO GIVE FULL FAITH AND CREDIT TO ANY MARRIAGE ESTABLISHED UNDER THE LAWS OF ANOTHER STATE.”
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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