Opinion: Privatize Marriage

By Rhett Wilkinson
If the Supreme Court hearings last week on Proposition 8 and the Defense of Marriage Act are any indication, the court and interested parties are quite representative of the American public: divided.

Justice Anthony Kennedy acknowledged that there were 1,100 references to marriage in the federal code, and that the definition of who is married is “intertwined with daily life.” He questioned whether the federal government may impose its own view of marriage, which has “always thought to be” the domain of the state.

Justice Ruth Bader Ginsburg said that if those couples don’t receive federal benefits such as tax advantages, Social Security benefits and other recognition, “what kind of marriage is it?” She said it created two classes: real marriage and “skim-milk marriage.”

Paul Clement, representing Republican House leaders who are defending the law, said Congress was not discriminating but simply staying out of experiments by the states on same-sex marriage.

The Obama administration has said that it will not defend DOMA, and lower courts have said it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live, while offering the same benefits to opposite-sex married couples. At the same time, however, the administration has said it will continue to enforce the law until the Supreme Court rules.

Of course, the U.S. Constitution protects same-sex couples to be married—particularly under the statute of the Equal Protection Clause, part of the document’s Fourteenth Amendment. “No state shall… deny to any person within its jurisdiction the equal protection of the laws,” it reads. Perhaps Aquinas’ theory that God’s law should determine public policy, if there weren’t so many definitions just as to what God’s law is. Or maybe Aristotle’s theory that natural law should be the key factor, except that studies haven’t been conclusive as to whether being gay is actually natural.

That’s why local groups should have the most say on this matter. If we want to look to the Constitution, this matter should be determined by the states, as clearly outlined in the Tenth Amendment. That’s aside from the Fifth Amendment, which protects against abuse of government authority in a legal procedure.

If we are intent on following the document that is the basis of American policy-making, there is no way that the Supreme Court should be determining the constitutionality of Proposition 8 or DOMA.

But the arguments will ensue, looking to higher authorities all the while. Basically, religious types will be intent on defending their faith in doctrine of marriage between a man and a woman. Secularists, however, will argue that those values should not be imposed on the rest of society which doesn’t agree with them. As long as individuals look to their state houses and Washington to define this issue, a battle will continue.

Why don’t we stop arguing about the issue by dropping it altogether, then? If marriage were private issue, neither side would need to banter. Religious adherents could observe their practice of marriage between a man and a woman, while secularists could live as they wanted. Both sides would be enabled to demonstrate their agency, living relationships as they desire.

Arguments about the two bills have certainly attested the theory of justification: if party B casts doubt on party A, the latter’s next move is to provide justification. Both sides are using empiricism and authoritative testimony to justify themselves. (Is it truly conservative to look to the Supreme Court—a branch of the federal government—for definition of this issue? No wonder the Fifth and Tenth Amendments have been penned.)
Let’s drop the issue entirely, then. The mantra “keep government out of the bedroom” couldn’t be truer.

Rhett Wilkinson is a senior at Utah State University studying journalism/communications and political science. A co-founder of Aggie BluePrint—USU’s first student magazine—he has worked as an intern in Congressional and Gubernatorial offices and as a correspondent for the Deseret News and Standard-Examiner.


Share this article