The ruling on Utah’s Gay Marriage Amendment (Amendment 3) came down yesterday from the 10th Circuit Court. This ruling said that marriage is a fundamental right and that the state cannot prevent two consenting adults, no matter their gender, from being married.
Many of my politically “conservative” friends are wringing their hands over this while my liberal friends are jumping for joy. It’s ironic to me, because my “conservative” friends generally oppose government intrusion into people’s lives. Amendment 3 was a major intrusion into people’s lives. They should be rejoicing. However, my definition of conservative (as in Constitutionally conservative) and theirs (socially conservative) is very, very different.
This is where my statement that only libertarianism is intellectually consistent plays out.
The truth is, my attitude about the ruling is mixed.
I am concerned that the doomsday scenarios of granting special rights to minority parties will continue to play out and the fall of Amendment 3 will make it difficult for business owners to follow their conscience by refusing service to gay couples. I know my liberal friends get really up in arms over this, but the ability to choose who you will provide services to is a fundamental property right. I am very troubled by court cases that rule that individuals cannot refuse to serve groups – generally gays. It violates personal property rights. From a purely personal perspective, I would like the ability to patronize or avoid business whose attitudes are in line with my own. I’d like to know if the owner of the bakery I buy from on a regular basis is bigoted or not. The free market lets me do this. Of course, this limitation on personal property rights is nothing new. It’s the expansion of the limitations that concerns me.
On the other hand, I do appreciate the expansion of enumerated rights. It’s important to remember that rights come from nature and nature’s God, not from the government or society/the collective. Just because something is unenumerated in the state and federal constitutions does not mean that you do not have a right to do it. Your rights are violated every. single. day. So I really appreciate when a court takes a step back and reaffirms basic rights.
However, my enthusiasm is extremely tempered by the fact that the Supreme Court has not forced states out of the marriage business all together.
Let me explain:
Legal marriage is a contract. It is a contract between two individuals, consenting adults. It should be no more and no less than a legal arrangement. However, legal marriage is also heavily conflated with religious marriage and it creates a special set of protections and guarantees for those who have entered into this kind of contract.
In other words: modern legal marriage creates a protected class of people.
Think about it – not only do most employer-sponsored insurance plans offer to cover a spouse, they usually offer that insurance at a subsidized rate. That’s a result of the special class legal marriage establishes. There are many other places where business over perks to married couples. However, employers and business are generally private companies and can – well, could, prior to Obamacare – do what they want with their insurance plans and other offerings. This is called the free market.
The real danger of this special classification is where the government gets involved. Social Security death benefits are offered to surviving spouses, “underage” children and, in some cases, exes. These benefits are not extended to whoever you chose. Just whoever the government has defined – essentially the other person with whom you enter into the protected class with and the persons who are a product of that protected status.
Another example of this protection is in a court of law. You may not be compelled to testify against your spouse, even though your children and your spouse’s siblings and parents are required to testify. I’m not really excited to think that I might have to testify against my husband in a court of law, but I’m equally opposed to testifying against my parents or my siblings (or someday my children, though Monkey is not nearly old enough for that yet).
I could go on, but this post is already getting quite long.
The problem is not that the government “allows” people enter into a legal contract we call legal marriage (although thinking the government has to allow us to do this is a problem). The problem is that by entering into this contract the government grants additional protections ancillary to that contract to some which are not extended to others.
None of these special protections are critical to the actual core of legal marriage. Unfortunately, the one element that IS critical to legal marriage – usually a contract which says “as long as you both shall live” – is rarely enforced by the legal system anymore. (I’m not advocating that we make divorce impossible, but no other contract I know of is so easily dissolved as the marital contract).
Government should be in the business of enforcing the terms of contracts between two (or more) competent, consenting adults, whatever the terms of the contract are. They should not be in the business of granting special protections to a group of people who enter into a certain kind of contract.