Supreme Dilemna

I have always hated excuses, but at the same time I have always recognized the need for explanations.  Consider this the latter.  I have had a lot going on in my life lately; my wife got leukemia and I ran (unsuccessfully) for alderman and I ran a half marathon and fought against seating a convicted felon on our local school board.  And so my blogging pace has slowed considerably.  In addition I have become a little hung up on a particular blog idea that I am trying to get “just right”.  Experience has taught me that trying to get anything perfect is a losing proposition; nothing ever gets done.

Now several things have presented themselves that cannot be ignored and I cannot delay my attempts at the perfect blog while ignoring the obvious in terms of current events.  One of these events involves the tragedy of Baltimore; the other is the pending Supreme Court decision regarding gay marriage.  I will tackle the latter issue here.

There are a number of fundamental principles at play here.  One key principle involves the sovereign power of states to decide social matters.  Another involves individual rights versus the power of the STATE.  And finally, we must consider the central issue involved in marriage, which is the welfare of children.

I am a huge fan of states’ rights versus the power of the federal government.  I would argue that federal power has exceeded both its constitutional and moral bounds, and that the power of our sovereign state governments to decide what is in the best interests of their citizens has been infringed upon severely by an ever-expanding and out-of control federal government.

States should be deciding most all political and social issues based upon the preference of their citizens.  That was the vision of government that our founders attempted to enshrine in our constitution and it is a vision that I wholeheartedly support.  The federal government should only step in and mandate to states when the issue involves protection of the natural rights of individuals from the tyranny of the majority.

And so the second principle, that of the inherent rights of the individual, should trump the right of sovereign states to decide social and political issues as their majorities may see fit.  Thus the majority cannot infringe on the individual rights of free speech or religion or the right to peaceably assemble.  States can also not deny the right to vote to people based on color or gender, regardless of whether or not the majority in that state would vote to do so.  

Finally, we need to take a step back and look at the issue at hand, namely the institution of marriage, and determine what the intent and function of marriage is.  Historically, marriage has been a recognition that two people were fit to produce and raise their own children.  It was sanctioned by churches and recognized by government for legal reasons.  There are questions of property rights and inheritance and visitation and custody to address and having a legal contract codifies many of those decision making processes.  On the social side the involvement of churches and communities in the process was intended to provide stable family situations for the raising of children.

Let me here state my bias; I think the best situation for children is generally to be raised by their two biological parents.  This is true for a variety of reasons that seem obvious to me.  There are issues of identification – biologically you will look like and act like members of your genetic family.  There are medical reasons – physicians have an interest in your family history of illnesses for a reason.  There are social reasons – kids raised by their own biological parents have no questions to answer; their parents fell in love and created a family which included them and they are being raised by those who created them.  It is not just a marriage but a family and genetic and social ideal that we all understand.

And yet, we all understand that not all families (ok, no families) are perfect.  Sometimes a parent dies and the widowed partner may think it best for the children to remarry.  Perhaps some form of abuse requires a sane and moral parent to seek divorce and remarriage.  Sometimes grandparents find themselves raising grandchildren.  And sometimes single parents find themselves raising children alone.

Some marriages, of course, do not end up with children.  In this case the raising of kids does not enter the equation.  In other cases it is obvious that a given parent is unfit to raise children and anyone else would be better equipped to provide a stable and nurturing environment for young people.  Having the ability to procreate does not qualify one to be an effective or morally acceptable parent.

And another thing to consider is that while we concentrate a great deal on who can be married we do not have any requirements whatsoever for who can produce children.  Children are created every day by people who are completely unqualified to raise them.  There is no license or examination or certificate required to procreate; all one needs are the biological tools and perhaps a quart of good liquor and suddenly there is another young human on the planet without any biological parents eager to raise them.

This is why the institution of marriage was created, and it is why we invented words such as bastard to describe people born outside of a sanctioned family setting.  Society wanted people to be ready to raise kids before they had them.  They wanted the proper environment to be in place before children were created in the first place.

Forgive me for stating the obvious, but gay couples cannot procreate.  And to mirror a previous point, the lack of a marriage license does not prevent gay couples from having sex or living together any more than it does straight couples.  And some gay couples are upstanding moral people while others are unethical drug addicts and criminals; just like the rest of society.

The central question before the Supreme Court is whether “marriage” is a natural, inherent right, or whether it is a social construct to be given to couples based on social and political considerations reserved to the states.

I believe the right of two individuals to enter into a contract that defines property distribution and personal visitation and other legal rights is an inherent natural right of human beings that should be protected by our Republican form of government at the federal level.  We have the inherent right to make contracts and form binding agreements with other people as we see fit.  No state government should be able to take away that right.

On the other hand, the purpose of government is to protect the life, liberty, and property of its citizens, and nothing else.  Nobody has the right to demand that society recognize their contractual agreement as being moral and ethical, only that they recognize its legality.  And so the idea of marriage as a public sanction of a couple’s fitness to raise children and start a family is by its nature a social and cultural, rather than a legal phenomenon.  It is not the proper function of government.

Our government needs to get out of the marriage business.  I have been married over 32 years and I could care less about whether the government approves of my marriage.  It is none of their damned business.  What I expect from government is recognition of my legal contract with my spouse, and its legal effect on my children.  I see the social contract of marriage as more of an obligation for me.  I promised to provide a stable environment to raise my children along with their biological mother.

Government has an obligation to recognize and acknowledge legal agreements.  It is a proper function of government to recognize and when necessary adjudicate legal agreements between individuals.  They have an obligation and requirement not to discriminate between people when performing this function.  And so whether it is a gay couple or a polygamous couple or a heterosexual man and woman government must recognize and validate and adjudicate a proper legal agreement between parties.

Marriage, however, is more than a simple legal agreement between parties.  It is an approval by society of the fitness of biological partners to raise children.  This is not an appropriate function of government.  This is an appropriate function of churches and other social entities to perform as they see fit.  Certainly people can cohabitate and have babies today without this social approval.  But the fact that the Supreme Court is considering this case means that people are actively seeking this specific approval for their unions, beyond the simple legal contracts, and it shows just how important that approval is.

Which brings us back to liberty.  Nobody and no social institution should be required to approve of things that they find immoral or unethical.  You can live together, and have babies, and enter into contracts with each other, and believe as you please about whatever you wish.  But you cannot demand that others approve of what you do, or sanction what you believe.

Government should get out of the marriage business.  States should be required to recognize and adjudicate social contracts between any people without regard to moral or sexual considerations.  That means that heterosexual and gay and polygamous couples should be able to form the same legal contracts with regard to property and inheritance and hospital visitation and all of the other legal matters that may arise.

But states should not be required to force people or churches to sanction any unions by calling them marriages if they don’t wish to do so.  That is not a legal matter, it is a matter of social acceptance which is not an individual natural right and is not protected by our constitution.

Next:  The Baltimorons.