Part I. Rights and Marriage
Some scary things are happening in our society. So far the point of my blog has been to bring these things to light to motivate people to prepare for them. In this spirit, I share a section from “The Family: A Proclamation to the World” by the First Presidency and Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints:
We warn that individuals who violate covenants of chastity, who abuse spouse or offspring, or who fail to fulfill family responsibilities will one day stand accountable before God. Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.
I believe that the breakdown of the family is the root cause for many of the terrible problems that we see in society today. If it’s not the root cause, it’s likely a contributing factor. And even if it’s not the reason or a contributing reason to the cause of a particular problem, the breakdown of the family makes it more difficult for society to deal with these problems. Because the family is the fundamental unit of society, I strongly believe that marriage should be defined as being between a man and a woman.
I’ve been meaning to formulate my thoughts into a blog regarding this subject for some time now. To start, I would like to mention that I believe that the government is limited to what it can do based upon what is has the authority to do. This may sound like a no-brainer but how often do we think about whether the government is overstepping it’s bounds when we ask it do something for us. Just because something may be considered to be good by some people, doesn’t mean the government has the authority to do it. To illustrate my point, let’s use an example at an individual level. Let’s say there is a poor, starving man. Nobody would argue that it is good for him to eat. But does he have the right to steal in order to eat? No. The man from whom the food was stolen can seek a justifiable redress for the actions of the hungry man. In the same respect, we may feel that we would like the government to intervene in some manner to do good. But it can only do so if it has the proper authority to do it. Since the government is limited to do what it has the just power to do, I’ll dedicate the first part of this blog to focus on the rights of individuals and the powers of governments that relate to the definition of marriage.
1- The government DOES have the authority to define marriage.
A common argument I hear is: “What business is it of the government to decide who can and who can’t be married?” The answer is that the definition of the institution of marriage is fundamentally NOT a private matter. It requires that society treat the individuals being married as a unified entity. To become a unified entity is THE VERY PURPOSE OF MARRIAGE. If individuals want this special status from the rest of society, justice demands for society to be involved in the definition of it.
An example of how a married couple — a unified entity – receives special status relates to property rights. If a married couple buys a car, it is owned by both of them. In this example, let’s say that the married couple decided to end it’s marriage. Who would decide which person gets the car after the marriage is over? The court system of our government. Even if the government somehow, someway were able to dissolve itself from defining and licencsing marriages and grant this power unto organizations such as religious bodies (which by so doing, it is still passively being involved in the process), it could not dissolve itself from the process of ending a marriage. In the case of the car, who would decide who gets it when the marraige ended? Certainly the organizations couldn’t; it’s not their place! And even if they were given special power by the government to perform cases of divorce, ultimately if someone was unhappy with the settlement, the appeal for justice would have to go to the supreme law of the land — the government. The establishment of justice is one of the very reasons we have created government.
So, defining the manner in which property rights are established, maintained and dissolved relative to the institution of marriage IS precisely the government’s business. And property rights aren’t the only special status that one receives when getting married. Others include: legal, social, and economic stability; the formation of a family unit; procreation and the education and nurturing of children; legitimizing sexual relations; public declaration of love; or to obtain citizenship.
Lincoln stated in the Gettysburg address that the government is of the people, by the people, and for the people. You cannot disconnect the government from our society. And marriage, because of it’s very purpose and definition, requires that society give it special status, you cannot disconnect the definition of marriage from society. Hence you cannot remove the power from the government to decide upon the definition of marriage. It is inherently unfair for the choice to be taken away from people to decide what their own marriage means, and also to whom they are required to give a special status.
2- Individuals do not have an inalienable right to marry someone of the same gender.
If it is necessary for the government to be the entity that decides how marriage is defined, can it arbitrarily allow some to be married and others not? Of course not. Government is instituted to allow individual liberty by protecting the inalienable rights of ALL of it’s citizens. In the Declaration of Independence, Thomas Jeffersion shows that the very foundation of our country was based upon this idea:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
One of the inalienable rights that Jefferson stated was “the pursuit of Happiness”. Doesn’t that seem to make the definition of marriage unfair discrimation towards gays? At first glance, it might seem so but in reality, it isn’t. I use the term ”unfair discrimination” because I feel that the word discrimination by itself is not always properly used or understood. Here it is defined:
1 a: the act of discriminating b: the process by which two stimuli differing in some aspect are responded to differently
2: the quality or power of finely distinguishing
3 a: the act, practice, or an instance of discriminating categorically rather than individually b: prejudiced or prejudicial outlook, action, or treatment
So we discriminate everyday in all of our judgments — when we decide which fruit to buy at the grocery store, which way to go to work if traffic is bad, which person to hire for a job, etc. In this case, is the government being prejudiced or unfairly discriminating against gays? No, here’s why. In the case of marriage, discrimination isn’t being done based upon sexual orientation. It is being done based upon whether two individuals of the same gender can be married. Keep in mind, it’s also being done based upon how many people are allowed to be part of the same unified institution of marriage (i.e. polygomy) and also based upon age. Homosexuals are being afforded the same opportunity that everybody else in society is — the right to marry one person of the opposite gender who is of legal age.
On a side note, this issue would be even more confusing if it really were about the right of gays to get married to another gay person of the same gender. How do you define homosexuality? Is it somebody who feels attracted to someone of the same gender? Would if that person doesn’t pursue those attractions, doesn’t consider themselves gay and/or has attractions towards the opposite gender? Is homosexuality defined as someone who has had gay sexual relations? Would if someone considers themselves gay even if they haven’t had gay sex? The questions could go on but the bottom line is that the definition of homosexuality is very ambiguous. And if it were really about discriminating against gays, then a gay person could just claim they weren’t gay and marry someone of the same gender. I know that may sound silly but it demostrates a very valid point — there is no discrimination against gays when defining marriage as between a man and a woman.
In any case, getting back to the point about the government protecting the right of it’s citizens, if the government does have the power to define marriage, but it doesn’t have the right to unfairly discriminate, is the act of defining marriage as being between a man and a woman unfairly discriminatory? There are certain inalienable rights. In addition, the Bill of Rights of the Constitution of the United States of America has established that there are certain rights upon which the federal or state governments shall not infringe. Each state also has it’s own form of constitution and bill of rights which prohibit that particular state from infringing upon certain rights. So all of these rights — inalienable rights, those found in the Bill of Rights, and those in each individual state – comprise a list of those upon which governments shall not infringe. Is the right for one person to marry another of the same gender found in the Bill of Rights? No. As far as I know, this right is not found in any state constitution or state bill of rights either. So unless it is a fundamental right, it is legal for the government to make laws prohibiting it. So that leads us to the question, is it a fundamental right? A fundamental right is one that is inherent to being a human being. These rights are not granted to us by our government, they are naturally possessed by us because we are human beings. In the U.S. Declaration of Independence, Jefferson states that these rights have been endowed upon us by our creator. There isn’t an exhaustive, specific and authoritative list of every single fundamental right that humans possess but by their very nature they are rights that everybody can possess at the same time allowing for liberty and justice. Therefore, there are very few rights that are truly fundamental. Examples of fundamental rights are the right of life, self-defense and property ownership. We can all own things without infringing upon anybody else or requiring some form of servitude from others. We can all live while allowing for liberty and justice to exist. Conversely, what some consider a “right” such as free healthcare cannot be an inherent/inalienable/fundamental right. In order for people to have “free” healthcare, others would need to provide for them. Without getting into a long-winded philosophy upon government, I’ll just succinctly state again, that marriage by its very definition, when living in a society, requires a consensus by the public because it requires each individual to treat those involved with a special status.
3- Is the prohibition of same-gender marriage unfair discrimination based upon gender?
I read a blog yesterday that claimed that the California Supreme Court was justified in redefining marriage by declaring the state law unconstitutional that defined it as being between a man and a woman. The justification behind declaring that law unconstitutional was that it unfairly discriminated based upon gender. This notion is absolutely ridiculous. Can a woman get married? Yes. Can a man get married? Yes. Where is the unfair discrimination? To say that it’s unfair discrimination based upon gender if a woman cannot marry another woman or if a man cannot marry another man is like saying that a man has a right to be examined by an OB-GYN for cervical cancer or that a woman has the right to use a man’s bathroom. It’s ridiculous to think that the traditional and inherent definition of marriage, which defines marriage as being between men and women, is unfairly discriminating against a certain gender. Both men and women enjoy the same, equal rights with regard to the traditional definition of marriage.
4- The government is infringing upon the rights the majority by imposing upon it the will of the minority.
In California, a panel of 7 judges in a 4 - 3 decision, recently overturned the will of millions of Californians who had previously voted in a 60% majority in 2000 to define marriage as being between a man and a woman. This was a case of judicial activism and not a case of protecting the rights of the minority. This is evidenced by the flimsy arguments found starting from the the very beginning of the written opinion of Chief Justice Ronald George. In it he states:
Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
A political philospher, named Joel Skousen, that I highly regard wrote the following:
The only justification the State has in regulating and enforcing marriage laws is because there are potential children as offspring (which are too young to defend their individual sovereignty) whose rights need protecting up to the age of legal maturity.
And he also writes:
There is no Right to demand that a homosexual union or any other contractual union of one, two or even three individuals be recognized by the State as a marriage because homosexuals can’t create children with same sex partners. Their civil union doesn’t come under the same class as man/women marriage with a child offspring. Neither is there a “right” for anyone to force private companies to grant partner benefits at all–though governments have created anti-discrimination laws to invalidate the right of private companies and private citizens to make discriminatory choices. When people lose the freedom to associate or not associate for whatever personal reasons, a significant fundamental right is lost.
One of the reasons gays are pushing so hard to get the states to let them adopt children is to allow them to claim legitimacy through children’s rights. But merely taking on children through foster care, adoption or artificial insemination still doesn’t qualify as a marriage because it is properly dealt with under the law governing single parents. The fact that this single parent is living with another gay person doesn’t legally impinge on the state’s sole interest in protecting the child–except in the negative sense, because of the potential of harmful example, indoctrination and/or abuse. This is the same concern states courts have in not giving custody of children to unwed partners or single women living in adulterous relationships. It is destabilizing and morally degrading for children.
As eluded to before, the government is instituted to protect individual rights and this includes children. We are sovereign individuals. However, childrens’ sovereignty is held by their parents until they reach the legal age. So it is necessary for the government to be involved in the institution of marriage to establish and protect the rights of children.
In summary, society justly holds authority to define marriage and to ordain unto government the power to define it. Individuals don’t have the inherent right to marry someone of the same gender and government is not unfairly discriminating or infringing upon anybody by maintaining the traditional definition of marriage. On the contrary, the courts unfairly discriminated against the majority by forcing a minority opinion upon it.
Since this blog enry was focused on establishing the rights of individuals in society and the powers of government relative to defining marriage. I hope to have a second part to this that will discuss why it is good for marriage to be defined as between a man and a woman.
