“That government is best which governs the least, because its people discipline themselves.”
Those who know me well are very aware of my position on gay marriage: I find absolutely nothing wrong with it. However, my decision is a secular one: if you take religion and government out of the marriage business, there shouldn’t be any debate. The problem is that people also don’t seem to realize that it is a Constitutional argument as well.
For most of history, marriage has been a private contract between two people or a contract between families, usually for economic purposes. In ancient Rome, marriages were civil agreements between people that didn’t require any kind of religious stamp of approval or one from the government. When laws compelling marriage were enacted, marriage rates actually declined, as well as birth rates. In these times, partners had a good deal of equality in marriage. Homosexuality was not frowned upon, but venerated in the arts and the theater. Men or women would engage in homosexual behavior before marriage, and then would make a choice to either continue with the same sex partner or enter into a civil contract for inheritance or to have children.
It wasn’t until the rise of Christianity that the power structure changed dramatically. According to the Bible, the main reason for marriage, rather than a civil contract, was for procreation and the perpetuation of the family name. However, the “bride price” (later called the dowry) was still used, so it can be argued that these marriages were also advantageous economically and socially. As marriage continued to come under the jurisdiction of the church, the laws changed drastically. At this point, marriage was still recognized as the free consent of two people (as per Roman law). In early Christianity, the church was not involved in private marriages…it wasn’t until the 12th century that people actually starting getting married within the chapel. Keep in mind, though, that marriage was still viewed as an economic and civil contract, even though the church continued to become more and more involved.
As the church gained more power in the following centuries, they continued to impose more and more restrictions upon what constituted a legal marriage. Divorce was abolished and regulations were imposed. Marriages were advantageous to the Church; it was taught that living together was a sin, and that only through marriage could one expect to enter Heaven….and church officials were paid handsomely to perform marriage ceremonies. The Catholics held a monopoly on salvation; they had a large foothold in Europe, and maintained that marriage could only be ended by death, though exemptions could be made for a generous fee. The Church was also able to impose fines for violations of doctrine, such as consanguinity or a marriage deemed “invalid” if the proper fees weren’t paid. At this time, church and state were still deeply intertwined. “Sodomy laws” were not enacted until the 16th century, when Henry VIII withdrew from the Catholic church.
Early influence on American marriages came from the Puritans, who declared that “marriage is no sacrament” and even passed an Act of Parliament to that end in the 17th century. Church laws became obsolete and marriage was considered a secular act. “Common law” marriages became recognized in the Americas, and some states still recognize partnerships as such.
Later marriage laws in America were largely based upon racist notions. In the early 18th century, laws were passed in the colonies forbidding mixed race marriages, or marriages between slave and master. Our Founding Fathers, even though they also kept the same ideas of “traditional marriage”, still made it clear that it should reflect the ideas of liberty and choice. The idea was to bring about freedom from arranged or forced marriages.
The government became more involved in marriage in the 1920’s ,primarily for economic reasons. An Oregon Supreme Court case involving miscegenation laws (re Paquet’s estate) opened the door for the government to begin suing estates for inheritance taxes. Ultimately, government involvement in marriage in the U.S. came about as a way of enriching the coffers of the Federal government, which was not something that was envisioned under the Constitution. Today’s laws are instituted as a way of redistributing monies and for taxation purposes…it has nothing to do with the government protecting “the sanctity of marriage.”
So, we have explored church involvement and its purpose (money) and government involvement and its purpose (money). Now it is time to explore the Constitutional part of the argument: The 14th Amendment.
As marriage was intended to be a civil matter, and indeed was strictly so until the church became involved, one can argue that under a secular government (as asserted under the 1st Amendment), marriage should simply be a personal decision to share life with another person. Furthermore, the 14th Amendment prohibits states and government from denying any person equal protection under the law. While it does not specifically deal with marriage, the 14th Amendment most certainly deals with civil liberties. As a citizen of the U.S., people are guaranteed freedom from infringement upon life, liberty, and property without due process and are afforded equal protection.
In Loving v. Virginia (1967), the Supreme Court ruled that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men …” While this particular case dealt with interracial marriage, the premise is the same. The definition of “civil liberty” includes the right to marry, and if same- sex marriage falls under a secular realm, it is a violation of the civil rights of homosexuals to prohibit them from marrying the person of their choosing. Rather, laws that have been passed that disallow same sex- marriage can be argued to be unconstitutional under the Equal Protection clause.
Here is the crux: If marriage is a civil matter, it would not be constitutional to allow heterosexual couples to marry but disallow marriage for same-sex couples. Love cannot be mandated by the government or the church. Marriage does not have to be treated as anything under the law than what it is: an exercise of the right to be able to choose the person that you want to spend your life with.
The concept of self-government is one that is very important in this argument. Jefferson expressed that in order to self-govern, “one must be free from authority in all its guises.” In this is the Libertarian notion of being free to live as one sees fit as long as you aren’t infringing upon the rights of others.
While everyone should be afforded equal protection, the government should not be involved in determining the legality of a freely chosen partnership. Rather, the focus should be upon upholding the civil liberties of each individual, regardless of sexual orientation, race, creed, or gender.
“Toleration and liberty are the foundations of a great republic.”
-Frank Lloyd Wright