Do We Really Want To Redefine Marriage?

States across the country are in the midst of debating the idea of changing the definition of marriage as a union between one man and one woman. Five states have legalized the practice through legislative or judicial action, but despite thirty-one attempts, not a single time has a majority of citizens of a state approved such a change. Not that this is an argument for majority rule. It’s not. Every state has a republican form of government and should be governed by the rule of law rather than man. Nonetheless, at some point government is accountable to the people and constitutional change is often how citizens make their feelings felt. Thirty states, including California, have amended their constitutions to explicitly state that marriage is to be considered between one man and one woman. This week a federal judge in San Francisco threw much of that into the air. Ted Olson argued that the court is merely protecting the right to marriage, a right the court has addressed 14 times since 1888. I have to disagree with Mr. Olson and Judge Walker. This is not just like Loving v. Virginia, which did away with barriers to interracial marriage. Race is not sex. This is not opening up marriage to just another group who had been arbitrarily excluded. Men and woman are fundamentally different and marriage has always been understood to be a union between a man and a woman, not just two people.

If we step away from thousands of years of western tradition, if we take that first step in changing the definition from one man and one woman, where does that road lead? Where do we stop? It’s the slippery slope problem. Sure, today we are arguing about two people of the same sex, but why could we not just as easily argue for one man and two women or three men or three women? Could we not use the same rationale to allow a salesman who lives in Miami but works in Charlotte to have a wife and children in Florida and another family in North Carolina? And what if his Charlotte wife wanted to have a second husband from across town for the weekends when her salesman husband is down in Florida? Who says a person can’t be committed to two different people simultaneously? In 1887 Utah was forced to outlaw polygamy as the price of admission into the United States because it was understood that marriage was between one man and one woman. Will the state now have the opportunity to amend its constitution to bring back the practice? Once we change the definition the permutations could be endless. What about children? It was not so long ago that the marriage of children for political or dowry reasons was not uncommon. Do we want to go back there and allow 12 & 13 year old children to be married and traded for family favors or for “love”? Is not the age of consent arbitrary?

There is no debate, the supermajority of the country does not want to redefine marriage. case closed.

The trouble is, that's not the debate: the debate today is about government involvement and the right of law... and unless a "statesman" emerges to put this in proper context, the traditionalists cannot win this battle in the long term.

I will explain...don't flame me yet.

Marriage has been a Christian religious bond, and one adopted in one form or another by most other religions of the world for the purpose of ordaining and establishing The Family. This is simply a historical fact - it's not the point of debate I intend to raise here.

The problem in this country arose when the state got involved: establishing laws on who could and could not marry (underage, close relatives), plus licensing the practice. Next came taxation differences: IRS rules treating people differently depending on whether they were married. Add to this insurance differences, adoption practices, inheritance, and much much more: we talk about the "slippery slope" for many issues -- government involvement in marriage is the very definition of this. We truly now have two classes of people: those who can marry and financially benefit from that institution, and those who cannot. This is undeniable, and has been established now more by government than by God.

The result? Like it or not, this California judge has accurately pointed out that the laws are treating people differently, and the Equal Protection clause of the 14th amendment should indeed apply. The barn door has been thrown wide open, and it's because the church (in whatever form you prefer) has embraced/allowed/tolerated government intrusion into its business. Now we're paying the piper, and there's no going back.

Well, maybe.

In my view, there's only one chance left to recover marriage in its current form. And that requires a communicator with a national voice, an undeniable reputation, and a common sense message. That message should be as follows: "It is in the compelling best interests of the United States that marriage be preserved and encouraged in the form of one man and one woman united to form a family. This family unit is the basis for all economic development, child creation and development, education, defense, and protection for this nation. It provides the year-over-year bonds of family that stabilizes us, establishes civil order, encourages careers, and ultimately provides a future that we can count on in this country."

While one can argue that there are people in the form of "life partners" or others who can establish that they can successfully achieve these high marks themselves (and certainly there are married families that likewise fail to achieve them), one cannot argue that over time, these points are better achieved through married families than any other entity. It is for this reason that the ideals of the 14th amendment must rank below the compelling interests of the United States to support, protect, and defend marriage in its current form. But because we have allowed the government to (already!) redefine marriage, we have likewise ceded the means of control. And based on current Constitutional law, I believe this kind of argument I've outlined here is the only means of rescue for marriage... and then only partially, for we frankly still have the government in control of it regardless.

I don't know that we have such a statesman who can sell this, but we need one quickly. It is nearly too late already.

I think you make some good points, but, I’m unclear on the 14th amendment “equal protection” argument.

Everyone is already treated equally under current marriage laws. Any eligible man can marry any eligible woman. We’re all limited to one partner at a time. We all are limited to an opposite sex partner. The fact that a homosexual man doesn’t want to marry a woman doesn’t negate the fact that he has the same right to do so as anyone.

Further, homosexuals are not a protected class under federal civil rights laws. The laws classify us all as men and women. There is nothing about gay men and lesbian females in the federal law, thus, there is no legal basis to say that they are treated unequally somehow in marriage laws. At least there is no legal basis unless a judge decides that homosexuals “should” be a protected class.

We can all make policy arguments for and against same-sex marriage, but, clearly the judges are bending the law to rule for same-sex marriage. If homosexuals were a protected class under civil rights laws, then the argument under the 14th amendment would be much stronger.

To me, the place to make all these arguments is in the legislatures, not the courts.

That is exactly the problem: we have reached the point at which the equal protection argument is tearing up ALL of the limits you mention. Yes, gays have the right to marry the opposite gender, but they don't want to do so. Yet they want the financial and legal benefits of marriage, so they have now successfully argued that the 14th amendment should protect that option on an equal basis of opposite-gender marriages. They have worked around the protected class argument and gone for a straight 14th amendment victory.

So my point is that we have lost this argument and must therefore develop another approach (previously outlined). Your points seem to be exactly what was lost in this California decision. Common (gender) sense and tradition have no rational legal standing any more. Religious practice was ceded once the government and states got involved in licensing marriage. Once this hits SCOTUS (and wins), I expect that the only limits left regarding marriage will be that of 'consenting humans of age'... two or more.

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