Posted on 02/02/2004 11:12:53 AM PST by rhema
A recent column by Craig Westover ("Government should stay out of marriage question," Jan. 18) is premised on three common errors about the relation of marriage to the state, which lead unsurprisingly to his conclusion.
Premise 1: Marriage is a purely religious institution, co-opted by government for determining certain legal rights and obligations. Not so. Every society throughout time has institutionalized marriage, in one form or another, as a way of keeping our sexual activities in line with the natural result of intercourse, children and the ensuing parental responsibilities.
Society has promised to safeguard and strengthen this "littlest society" of parents and children because of the benefits that they bring to everyone in exchange for a public promise of commitment of the partners to each other and to their offspring. Society has then used the powers of the state to enforce this institutional pledge. If it were not for the fact that sexual intercourse leads naturally to children and brings with it a further obligation to care for those children, it is quite likely that no one would ever have concocted the notion of marriage at all. Many religions have, of course, ritualized and even sacramentalized marriage, given its profound significance in human life. But marriage is, first and foremost a natural institution of protective fundamental human flourishing, both individually and societally.
Premise 2: Same-sex couples are being denied rights arbitrarily granted to opposite-sex couples. Wrong again. Whatever benefits, which legally obtain upon marriage are privileges granted by society for the sake of protecting and strengthening marriage and family, because of the advantage to society of doing so. They are "rights" only in the sense that they are, legally, automatically guaranteed to married couples, not that anyone has a fundamental claim to them as a human being. Almost all the legal arrangements that come automatically with marriage can be legally obtained by other means. Certainly, no one is depriving anyone of that right to form "lasting personal relationships." But what possible interest does the state have in strengthening and benefiting a same-sex personal relationship?
Premise 3: True liberty demands that government remain out of private decisions, such as the decision of whom to marry. Strike three. This position has been promoted as a properly conservative one. It is however, a libertarian view, shared by some conservatives and some liberals. It relies on a highly problematic view of liberty, which tends to deprive the state of any authority to make laws: The infamous "heart of liberty" clause of Planned Parenthood v. Casey comes to mind. There are many "private" arrangements with very public aspects, which the state reasonably regulates. The many forms of contract come to mind; Westover's own proposal on how to regulate civil unions illustrates the point. The decision to engage in sexual intercourse, with its natural result of children, is a decision with profound public significance, in which the state has particular interest. Thus, the state institutes civil marriage to promote and protect such unions, and their offspring. The most that "liberty" can demand (and even this is a stretch) is that people engaging in other sexual activities are to be left alone to do so.
Nowhere else in history has anyone ever claimed that same-sex couples could marry; same-sex couples simply cannot engage in the activity that the state has an interest in protecting, let alone benefiting.
No other friendship, even of a sexual nature, requires the stability in which it evokes the protection of society in order to flourish it. The state has had no interest in protecting any other sexual relationship, and no reason to start now. It does, however have a great deal of interest in protecting and strengthening the institution of marriage.
Our society, obsessed with sexual pleasure at the expense of sexual responsibility and flourishing, has been doing a poor job of it for the past 40 years. It is time to get serious again about marriage.
Heaney of St. Paul is an associate professor of philosophy at the University of St. Thomas.
There is a simpler and more effective answer. Marriage is an option to all individuals to form a couple with a member of the opposite sex. Each person in a gay couple has the same option. Therefore, no one is being denied equal protection.
Couples are not a legal person, and are therefore not entitled to equal protection under the Constitution.
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