Marriage

On June 26, 2015, the Supreme Court, in Obergefell v Hodges, gave same-sex couples the legal right to get a marriage license in all 50 United States.  This seemed to end the public debate on ‘Marriage Equality.’  While I firmly believe in equality and “Liberty and justice for all,” I also believe this very public debate was not about equality or civil rights.

There are two kinds of rights; human and civil. Civil rights are rights granted by the government. We expect our government to treat people equally and not discriminate due to an inappropriate characteristic. A list of what is considered inappropriate can change and is governed by law. Some examples of protected classes are race, color, religion, national origin, age, sex, marital status, sex, pregnancy, disability, veteran status, sexual orientation, political affiliation, or citizenship.

A human right is a right that a human has because they are human. They can only be taken away by the government. These rights are covered under the ancient principle of justice; man has a right to what is his. These rights are spelled out in the first ten amendments to the constitution; the Bill of Rights. Some examples of human rights are a right to your life, property, religious practice, speech, and to gather with neighbors. We can have these rights without a government.

Marriage, matrimony, wedlock are synonyms. The etymologies of these words would tell us that marriage is a commitment (wedlock), where you take a husband or wife (marriage), and the wife becomes a mother (matrimony). To paraphrase Aristotle, it is an arrangement where children are created, educated, and nourished. As a matter of biology, children are only created by partners of the opposite sex. Even in vitro fertilization (IVF) requires both sexes. Humans can have sexual relationships, reproductive relationships, and committed relationships, but only marriage is all three.(1) It is a relationship with the purpose of creating and raising children. I understand that not all marriages produce children because one partner has defective productive organs or in our modern times; made to be defective. But a broken thing does not change its purpose. The purpose of an eye is to see. Many people are blind, but that does not change the purpose of the eye. And sterility does not change the purpose of marriage. To use Aristotle’s four metaphysical causes, we would say: To create and raise children is the reason why a committed sexual union is male and female. While most cultures limit marriage to one of each sex, there are some cultures that allow for polygamy.

Marriage is not a civil right. Humans can marry, and have married for millions of years, without a government to say it is so. Marriage is a human right. The government can only take away the right of a person to marry as many states did when they enacted anti-miscegenation laws. Loving v Virginia,(2) did not change marriage, it removed the government's interference on human nature. If you view polygamy as marriage, you would also say the government has taken that away.

Societies do regulate marriage because of its purpose. The tribe wants to ensure their future members are strong additions to their society and the tribe is peaceful. When I got married, I was not allowed to marry whoever I wanted. I was not allowed to marry someone of the same-sex, a child, someone already married, or a close relative. These regulations tried to ensure our union would produce children, keep peace in the tribe, and produce a healthy, strong child. The laws of consanguinity forbid marriage to the second degree at a minimum, some out to the fourth degree. A person whose sexual orientation was to the same sex was free to marry using the same government regulation which applied to me, and many did. Homosexuals and heterosexual were treated the same under the law. But the people who are not treated the same under the law are single people. Because of the purpose of marriage in a society, married couples are treated differently compared to single couples.

US Code Title I defines terms to be used in any “act or resolution of Congress.” In 1947, Congress defined vessel to include “every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water.” The same law also defined vehicle, company, and county. In 1996, Congress defined marriage and spouse in Title I: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. With the exception of Africa, the middle east, and parts of southeast Asia, which allowed polygamy, this definition was consistent with the reasoned understanding of marriage for thousands of years.

In United States v Windsor, the Supreme Court noted 1) Title I did not prohibit states from permitting the issuing of marriage licenses to same-sex unions. Title I defines marriage at the federal level only. 2) The States traditionally regulated marriage 3) State laws do not treat people the same as Federal law 4) Congress could regulate the meaning of marriage 5) Title I has too great a reach affecting over 1,000 statues.  While States and Federal government treating people differently is not usual, and defining terms is the purpose of Title I, the Court concluded that a federal definition of marriage was unconstitutional.

In Obergefell v Hodges, the Supreme Court noted 1) people have a right to choose who they want to marry. 2) marriage supports a two person union. The Court seems to also suggest that marriage is necessary for intimacy and same-sex couples have a right to intimacy. 3) marriage is meaningful and it brings stability to raising children; except married couples are not required to have children to have a meaningful marriage. In fact, the right to marry cannot be conditioned on having children. 4) marriage is a keystone to the social order which applies to both same and opposite sex couples. Marriage gives couples status and state benefits. Same-sex couples are denied government benefits. What the Court failed to note was the definition of marriage. One could take from United States v Windsor, that the government is not allowed to define it. In the end, the Court decided same-sex unions have a right to something not defined.

The Court struck down the definition of marriage because it treated same-sex unions differently from jurisdiction to jurisdiction. It does not seem as if the Supreme Court or the supporters of marriage equality concluded a State could not regulate the issuing of a marriage license, by age, consanguinity, or marital status even though pedophile/hebephile unions, incestuous unions, and polygamous unions could be treated differently from jurisdiction to jurisdiction. While the supporters of marriage equality claim their goals have been realized, I am still not allowed to marry, a child, someone already married, or a close relative, and they are satisfied with those conditions.

As I claimed in the beginning, the debate was never about equality or civil rights. Homosexuals have always been able to get a marriage license under the same laws that govern heterosexuals, so it was never a civil rights problem to be solved. We still treat married people different from single people and ban marriage between people who could enjoy the benefits provided to married people, for example: a child marrying their parent to avoid inheritance tax. What we have done is give a subset of single people the right to a marriage license and to government benefits while excluding the remaining single people from these benefits.

As a postscript, the real purpose of the debate would just be a guess. But, after reviewing the four fundamental principles of marriage noted by the Supreme Court in Obergefell v Hodges,(3) the only principle remaining is status. They believe it gives homosexuals a status in society which makes them equal to heterosexuals. A dignity that apparently only a marriage license can provide. It was a false assumption on the part of the advocates for marriage equality to assume that their opponents do not believe homosexuals have equal human dignity. As the Supreme Court majority suggested, their opponents honestly believe that marriage is a fact of human nature which has always excluded same-sex unions. Humans have dignity by their nature not by an act of the government.

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 (1) A logical definition is the genus (family) plus the differentia (specific difference) for example: a square is a rhombus with a right angle. The differentia is what makes it unique. A cynic might say we have just reduced the square to a right angle or we have just reduced marriage to reproduction. Yes, reproduction is the differentia that makes it different from all committed relationships.

 (2) Loving v Virginia repealed the anti-miscegenation laws in the United States. By referencing Skinner v Oklahoma and Maynard v Hill the court was saying we have a right to be in a reproductive (Skinner) and committed (Maynard) relationship of our choice. Race was an artificial barrier to marriage because race is a non essential characteristic of being human not the definition.

(3) Obergefell v Hodges listed four principles 1) equality-marriage to whoever you want 2) support/intimacy 3) children 4) status. We still do not have equality, intimacy does not require a marriage license, and after listing children the court rejected it.