How have we come to the point that the question of persons of the same sex marrying each other clamors to be heard in the public square? Advocates demand “marriage equality,” the right to marry whomever they please.
First of all, is marriage a right? No, a right does not require a license. Privileges, such as driving a motor vehicle or hunting, require a person to buy a license and meet certain standards. We need no license, we pay no fee and need meet no requirement to exercise the rights of life, liberty and the pursuit of happiness. Nor do we need a license to possess arms, although some states define bearing a concealed arm as a privilege and require a test and a license.
Marriage inherently involves the area of sexual activity. For many, that fact raises issues of morality. Progressives may hold the opinion that each person determines what is moral or immoral for him or her, and that traditional religious views on homosexuality have no place in government policy, whereas conservatives tend to hold to the traditional and biblical view.
I lived in Mexico long enough to learn something about marriage in that country. Marriage in Mexico is recognized by the government only if it is solemnized by a government official. If the parties to the marriage choose to also have a religious ceremony, they may do so, but to the government that is all it is — a ceremony. It has no legal standing.
Oct. 26, 2006, my wife and I served as witnesses at the marriage of a couple of friends in Boca del Rio, state of Veracruz. Before he pronounced the words actually performing the marriage, the judge read a discourse on the institution of marriage and the duties it involves, spouse-to-spouse and parents-to-children, as well as the relationship of the family to the state and to society. Not a word mentioned God or religion, but there was a clear message that marriage is between a man and a woman, for the purpose of providing a stable home for the rearing of children who will be good citizens. Two persons of the same sex obviously cannot produce children.
The U.S. Constitution is silent on marriage, leaving it to the states to determine age requirements and other specifics, pursuant to Amendment X. That would seem to leave the door open for each state to decide the question of same-sex “marriage” as the voters of that state prefer. The rub there is that the Constitution does state: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State . . .” Article IV, Section 1.
What this means in everyday life is that my Missouri birth certificate, my Texas marriage record and my Arizona driver license have to be honored in the other 49 states. Foreseeing the situation in which a state would legalize same-sex “marriage,” and that individuals would have such a “public Act” or “judicial Proceeding” performed and then demand that another state grant “[f]ull Faith and Credit” to such, Congress passed the Defense of Marriage Act (DOMA) by a vote of 342-67 in the House and 85-14 in the Senate, and President Clinton (hardly a prudish or puritanical figure) signed it into law in 1996.
DOMA defines marriage as the union of one man and one woman and declares that no state has to recognize same-sex marriage. Thirty-six states have similar state laws. Despite the fact that the duties of president include “. . . [H]e shall take care that the Laws be faithfully executed . . .” (Article II, Section 3), the Obama administration has refused to enforce DOMA or even to defend it in court when it was declared unconstitutional by a federal appeals court in Boston on May 31 of this year.
Ken Blackwell, professor of law, has declared: “Marriage is the union of one man and one woman. The fundamental institution of human civilization should be preserved as it has been known through the entirety of American history and Western civilization.”
Columnist Don Feder has written: “Surrender on gay marriage is surrender on marriage which is surrender on the family and, ultimately, surrender on civilization.
Unfortunately, many conservative intellectuals have lost sight of a crucial fact: American exceptionalism rests on three pillars: faith, family and freedom. Remove any one, and the entire structure collapses.”
Arguably, DOMA is unconstitutional, given the “full faith and credit” clause. However, it is worth noting that the Edmunds-Tucker Act of 1887, which outlawed the Mormon practice of polygamy, was upheld by the Supreme Court, notwithstanding the Constitution’s guarantee of the free exercise of religion and prohibition of ex post facto laws.
There is a case to be made for legal recognition of households consisting of persons of the same sex. There are questions of health insurance, authorized sick leave to care for another person and similar concerns. We may imagine two brothers who share a home, for example. Or the persons involved may not be related, but for one reason or another they choose to share a domicile. I do not need to know what, if anything, goes on behind closed doors. Some form of domestic partnership may well be appropriate, but it is not a marriage.
Abraham Lincoln, when frustrated by a man who seemed to be making dubious assertions, is said to have asked, “How many legs does a cow have?” The other man, taken aback by the unexpected turn, replied, “Why, four, of course.” “That’s right,” agreed Lincoln. “Now, suppose I call her tail a leg. How many would she have?” “Five,” came the reply. “No, that’s where you’re wrong,” retorted Lincoln. “Calling a cow’s tail a leg doesn’t make it a leg.”
Calling a same-sex living arrangement a marriage does not make that arrangement a marriage.