5.  The Marriage Quagmire
    by Wendy McElroy
    mailto:mac{at}zetetics.com

Special to TLE

The issue of gay marriages is exploding on the federal and
http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2003/08/01/natio=
nal0158EDT0421.DTL state levels with some politicians calling for
http://www.365gay.com/NewsContent/080403ashcroftMarriage.htm a
Constitutional Amendment to define marriage as "between a man and a
woman." These politicians are correct about one thing: the institution
of marriage is in jeopardy. The politicians themselves constitute a threat.

The power of government over marriage has swollen in the past few decades.
Traditionally, politicians have used various methods to control marriage,
including:

* They define what constitutes a marriage and criminalize or refuse to
recognize other unions. For example,
http://www-personal.umich.edu/~kdown/loving.html in 1967 sixteen states
still had laws against interracial marriage.

* They usurp rights and make their exercise dependent upon marital status.
For example, it can be difficult for gays to assert
http://www.gaycitynews.com/GCN16/newsbriefs.html inheritance rights even
when a committed common law union -- a clearly implied contract -- is
present.

* They offer entitlements, such as welfare benefits, based on marital
status. For example,
http://endabuse.org/newsflash/index.php3?Search=Article&NewsFlashID=327
the Personal Responsibility, Work and Family Promotion Act (2002)
strengthened the emphasis that the Welfare Reform Act of 1996 had placed
upon the promotion of marriage in state welfare programs. Government
funding is government control.

The current battle over marriage can be dated back to
http://www.lectlaw.com/files/leg23.htm the Defense of Marriage Act (1996),
which was widely considered to be an anti-gay measure. The Act federally
defines marriage as a heterosexual institution thus negating federal
entitlements, such as veteran's benefits, to homosexual partners. It also
allows states to reject recognition of same-sex marriages that might be
sanctioned by the laws of another state.

Nevertheless, authority to recognize same-sex marriage still resides on the
state level http://www.uua.org/news/marriage/ and some states have pushed
toward legalization. The Massachusetts Supreme Court is now considering
Goodridge v. Department of Public Health, a case in
which gays have sued to secure legal marriage as a right. (This is
different from Vermont which recently secured the
http://www.vermontcivilunion.com/union/faq.html
somewhat more limited civil unions.)

http://www.insightmag.com/news/447811.html Journalist David Mattson
explained the possible significance of Goodridge. If it succeeds, other
states might "be required to provide legal recognition of these
same-sex marriages under the full faith and credit clause of the
Constitution..." If unsuccessful and appealed, the U.S. Supreme Court
could "decide that the states must recognize these marriages, in
essence changing the Massachusetts Constitution and forcing same-sex
marriage on all the states."

There is reason to believe that the Supreme Court would rule in favor of
Goodridge and same-sex marriage. On June 26, in a ruling on
http://www.google.ca/search?q=cache:JCnXzXZJJ4EJ:www.aclupa.org/news/2003/=
Pennsylvania%2520Lawrence%2520Privacy.pdf+sodomy+%22Supreme+Court%22&hl=en&ie
=UTF-8 Lawrence and Garner v. Texas, the Supreme Court
struck down the Texas sodomy laws that effectively banned gay sex. Supreme
Court Justice Scalia expressed his dissent and called the decision
http://seattletimes.nwsource.com/html/nationworld/135104310_scalia27.html
an invitation to "gay marriage," presumably because it extended
due-process provisions of the 14th Amendment to cover sexual preference.

Thus, advocates of traditional marriage have sharpened
http://rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_2157008,00.html
their calls for an Amendment that could end all debate over the
constitutionality of gay marriage by embedding a heterosexual definition
into the Constitution itself.

As for the opposition to an Amendment from the gay rights community, it is
not clear whether advocates of same-sex marriage are pursuing rights or
entitlements.

The Supreme Court's ruling on Lawrence gave the gay community a rights
victory by throwing the government out of their bedrooms. Yet some gay
advocates are beckoning government right back in by asking for a State
stamp of approval on their relationships. They want gay marriages legally
sanctioned on the same level as heterosexual ones, thus allowing gays and
their spouses to access
massive entitlements on both the state and federal level, including
eligibility for public assistance benefits.

The Gay & Lesbian Advocates & Defenders (GLAD) -- a powerful gay
rights organization -- made this goal clear in a release concerning
Goodridge. In response to the question, Why not the civil union solution
adopted by Vermont?, GLAD responded,
http://www.google.ca/search?q=cache:otmclDM00fAJ:www.glad.org/GLAD_Cases/m=
arriageFAQ.PDF+Massachusetts+%22Department+of+Public+Health%22
+same-sex&hl=en&ie=UTF-8 "Civil unions are a good first step,
but they don't go far enough.... Gay and lesbian couples want and need what
everyone else has -- the right to receive the full protections bestowed by
the state and federal government that come through marriage." A main
difference between a marriage and a civil union is that the former has an
automatic claim on various federal entitlements.

Advocates of gay marriage do not seem to be rebelling against state
control; they want to be subsumed by it.

The current debate over gay marriage is a power play at the highest levels
of government and the judiciary to control what should be the most personal
matter between human beings: marriage.

To save its soul, marriage needs to be removed from power politics and privatized.

What constitutes a marriage should be determined by contract between the
consenting adults involved, not by government. Politicians should be
stripped of the power to dictate which consenting adults may marry or the
terms of those marriages. The only proper concern of law should be to
enforce the contract and to arbitrate any breach that occurs. In performing
this function, it should give no more weight to the to sexual preference of
those involved than it gives to their skin color -- that is, none at all.
The only "entitlement" that should accompany marriage is the
enforcement of the terms of that contract.

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