The Separation of Marriage and State

Posted: May 27th, 2009 by Militant Libertarian

by Jerry Salcido

On March 5, 2009, the California Supreme Court heard oral argument in five consolidated lawsuits challenging the constitutionality of the controversial November 2008 California ballot initiative, Proposition 8, which added an amendment to the California Constitution to limit “marriage” between one man and one woman. Lawyers who represent public interest groups, universities, official campaigns, individuals, companies, churches, and various other organizations who advocate and oppose Proposition 8 offered their best arguments to the seven justice panel regarding why Proposition 8 should or should not be overturned. Regardless of how the court ends up ruling, however, only one winner will clearly emerge from the courthouse — the State.

Proposition 8 was a hotly contested issue during the weeks and months leading up to the November California election. Proponents warned about the negative implications that same sex marriage would have on children in public schools and society in general. Opponents argued that Proposition 8 denied gays and lesbians equal treatment under the law. Opponents even invented clever epithets such as “Don’t h8” and “Let me choose my m8,” all ending with the admonition to “Vote No on Prop 8.”

Proposition 8 passed with 52.3% of the total vote, by about 600,000 more yea votes than nays. The day after Proposition 8 passed, its opponents began filing lawsuits challenging its validity and more than 40 amicus briefs (friend of the court briefs) were subsequently filed.

In addition to the lawsuits, Prop 8’s foes immediately expressed their ire on the streets of Los Angeles, San Francisco, San Diego, and even Manhattan, Chicago, and Seattle and various other venues throughout the United States. They marched in front of Mormon temples and other Christian worship centers and through city streets. City police departments were placed on riot alert, private property was defaced, and multiple arrests were made.

While Mormons bore the brunt of the No Crowd’s displeasure, Prop 8’s opponents also cast blame on blacks (another group that overwhelmingly voted in favor of the Proposition) and even religion in general. Notably, however, adversaries of Proposition 8, in all of their finger pointing, have blindingly passed over their primary antagonist — the state of California.

California, like the other 49 states and most countries in the world, holds a monopoly over marriage. Who can get married and un-married is at its sole discretion, through the granting and revocation of the marriage license — that fiat currency, if you will, whose only value derives from the powers and privileges that accompany it at the behest of the State, but which nonetheless is required to consummate human relationships.

The state’s involvement with marriage is rarely questioned. Advocates and enemies of same sex marriage alike all seek the endorsement of the state, never stopping to ask why the states approval is needed at all. The reason behind this submission appears simple enough — the philosophy ascribed by our society today which has led to the displacement of the private sector with the substitution of the state in nearly all facets concerning the rights of life, liberty, and property has taken root in the marriage issue.

Thanks to the state, marriage is no longer a covenant between two people or between two people and God. No, marriage is a state classification, which connotes state-provided benefits or detriments. Marriage is married to the state imposed tax structure and the state created probate system, and in many instances marriage defines the powers of the state over the married individuals.

This unholy union between the state and marriage has transformed marriage from an inalienable or natural right in which government’s only place was as protector of that right, to a civil right in which the state became the creator of the right.

Some, including California’s attorney general Jerry Brown, have even reclassified marriage into a newly created type of right — the offspring of a marriage between a civil right and a natural right. A naturvil or civatural right perhaps?

Jerry Brown, representing California’s (and his own political) interests in the Prop 8 battle argued in his legal brief and at oral argument that since the California Supreme Court (that is, the State) has determined that “the right of same sex couples to marry” is “part of fundamental human liberty,” and an “‘inalienable’ right,'” California voters cannot amend the California Constitution to intentionally withdraw that right “from a class of persons by an initiative amendment.”

Mr. Brown correctly pointed out that inalienable rights are “beyond the power of the Legislature or the Executive to abrogate” and “‘antedate’ the constitution as inherent in human nature. . . ,” but the attorney general’s understanding of natural rights stops there, because he then paradoxically asserted that “the scope of liberty interests evolves over time as determined by the Supreme Court.” In other words, inalienable rights exist, but at the whim of the state.

With this tortured logic the California AG, like any good representative of the state, moved to the next logical step and suggested that the real question which the Court should address is whether Proposition 8 “sufficiently furthers the public health, safety, or welfare” of the state of California. Thus, Mr. Brown opined that the interest at issue is not that of an individual natural right, but the interest of the state.

One wonders why Mr. Brown bothered to discuss inalienable rights at all.

The state attorney general’s argument is indicative of the tainted philosophy that has enveloped modern society, infected our state and federal legislatures, and permeated our judicial system. First, the State declares what are and are not rights. Second, even if the State recognizes that something is a right, the State can abrogate that right so long as the State has a sufficient interest. Gone is the day when government’s role was to protect the individual’s natural rights.

By transitioning away from a protector of rights to a provider of rights, the state has laid the groundwork for the problems that are so evident in the same sex marriage issue. If the government were to take its proper place as a protector of rights then a private union between a same sex couple which the couple calls “marriage” would be inconsequential to same sex marriage opponents, even though it may be morally repugnant to some and nonsensical to others. Likewise, refusal to recognize a private same sex union as “marriage” would be inconsequential to gays and lesbians, even though such refusal may personally offend the practitioners of same sex unions. In a free society any individual could “marry” whomever he wants by whatever procedure he desires, and the government’s only role would be to make sure that in doing so he does not violate the natural rights of others.

Such a scenario, of course, assumes that the state would be acting in its proper role as protector of rights in all regards, which would mean that private contractual relationships would replace the state created systems of benefits. Marriage, in that situation, would be relevant only where the contracting parties made it so; and, the state’s only role with regards to such contracts would be to ensure that the contract is enforced or to protect the parties against the other’s fraud.

A free society based on private contractual or covenantal relationships, however, is not what either side of Proposition 8 advocates. Proposition 8’s supporters have used the state to solidify what they consider to be the appropriate private relationship. Proposition 8’s opponents, on the other hand, want all of the state-provided benefits that come with being “married” and with that end in mind have used the state to force everyone to accept their relationships as equal.

Until we divorce marriage from the state, the right to marry will never be protected and the problems associated with Proposition 8 will be repeated throughout the world. Both sides of the Proposition, therefore, should agree to truly protect their natural rights by removing the state from the equation. In the meantime the world will wait to see how California protects its interests in the Proposition 8 lawsuits.

The outcome of the Proposition 8 lawsuits — which we will know by June 3 — may result in maintaining the status quo of marriage or it could cement the earlier judicially-created civil right to same sex marriage, but in the end marriage will not be strengthened — only California’s power over what otherwise should be a private covenant will. Indeed, Proposition 8, like the current economic problems, 9/11, or any other “crisis” has unfortunately served as a medium to expand the state’s power at the expense of individual liberty.

Thus, to the advocates and opponents of Proposition 8 alike, the deb8 on Prop 8 is not about h8, choosing your m8, determining your f8, or whether it has come too l8, but whether we should give in to its b8 to infl8 the control of the st8.

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