This is a paper where I make an argument for why the federal government should not be involved in marriage at all. I am not endorsing these beliefs personally, this is just one argument that can be made. This is only a BRIEF examination of this argument…it could be much longer, but I had a required page length. This paper is not written to cause any arguments, so please, be kind and do not argue 🙂 Also, please do not plagiarize! If you use my work, cite it please, and if you want to check out my sources, they are at the bottom of the paper. Thanks and enjoy! -R
The government has been able to help interracial couple marriages, but after it did this, its involvement in marriage increased perhaps a little too far, likely because of its desire for money and power (Anderson, 2011; Coontz, 2007). In the process, it has taken over a historical institution that should have been left for the people of the country to decide as the tenth amendment states (Anderson, 2011; Kuznicki, 2012). Marriage has historically been a cultural, personal, and religious institution rather than governmental and as such there is not a true separation of church and state within this institution (Anderson, 2011). If the judiciary branch rules in favor or against Proposition 8, it is a step beyond their power. Instead, the government should take a step back from marriage and return it to its historical place in society. There are ways to see this accomplished, and several authors make suggestions. Simply stated, if the U.S. returns to its “marital roots,” it could avoid constitutional issues, controversy, and instead provide equal protection to all of its citizens in a way that people of all belief systems could accept with a little more ease and with fewer controversies.
Keywords: Proposition 8, gay marriage, Constitution, marriage, history, church, state
Proposition 8 and Historical Perspectives: A Call for Regression
Marriage has been a long standing tradition throughout the history of the world and of the United States (Coontz, 2007). Marriage has long been a private contract between the two families throughout the history of Western civilization. Coontz (2007) states that neither the church nor the state confirmed the validity of a marriage, but rather the parent’s agreement to the marriage is what confirmed the marriage. Christian tradition also recognized a marriage simply based on a couple’s wishes or on a couple’s statement that they had exchanged marriage vows. The American colonies did require registration for marriages, but state supreme courts held that public cohabitation was enough evidence of a marriage. Generally couples would have a religious figure or elder in the community perform a marriage in order to publicly acknowledge the legitimacy of their marriage (Anderson, 2011). It was not until after the Civil War that states began getting involved in marriages. However, the state was still rarely involved at that time. According to Anderson (2011), states became involved in issuing marriage licenses when black and white couples could not find someone local willing to perform their ceremony. However, things began to change, and by the 1920s the majority of states would not perform interracial marriages, and 12 states would not issue a marriage license to a couple if one of the two appeared to be drunk, an addict, or someone with a mental health issue (Anderson, 2011; Coontz, 2007). In Loving v. Virginia (1967), however, the court ruled that preventing a couple from marrying one another based on race is unconstitutional because it violates the Fourteenth Amendment’s Equal Protection Clause. During this period of time governments started to use marriage licenses for other purposes (Anderson, 2011; Coontz, 2007). Marriage licenses were used as a way of distributing resources and legal rights to dependents, such as health insurance, social security benefits, and inheritances (Coontz, 2007). Anderson (2011) also reports that:
In 1921 the U.S. government first became involved in the recognition of marriage when a dispute over miscegenation laws was appealed to the Supreme Court. This opened the door for the U.S. to begin suing estates for inheritance taxes. One can imagine the Supreme Court’s acquiescence to this process, for it was in their interest to create a wealthier federal government. (para. 8)
Essentially, the federal government has not been involved in marriage licenses for a long period of time (Anderson, 2011; Coontz, 2007). Marriages throughout history were based on religion and/or familial and personal decisions, while the government played a small or nonexistent role. However, this has changed over the last decade. The government has turned what was a personal and/or religious tradition into something that they can make a profit from and potentially gain more power over the population (Anderson, 2011). History shows that marriage is best placed in cultural, religious, and personal settings, with little governmental interference because these types of governmental interference will likely lead to constitutional issues such as placing potential limitations on religious freedom, and too much governmental power (Anderson, 2011; Barber, 2013; Kuznicki, 2012; Taylor, 2004; Wolf & Johnson, 2013). The government should not be involved in Proposition 8 because of the potential for the aforementioned violations.
A Potential Violation of Religious Freedom
According to the Petition for a Writ of Certiorari in the Proposition 8 case, the court rejected 4 societal purposes served by traditional marriage, including protecting religious liberties (“Petition for a Writ of Certiorari, Hollingsworth v. Perry,” 2012). However, history shows that marriage has long been a religious or personal event rather than being controlled by the government (Anderson, 2011; Barber, 2013; Kuznicki, 2012; Taylor, 2004; Wolf & Johnson, 2013). Many religious organizations are not supportive of homosexual marriage based on their beliefs (“Marriage and Religious Freedom,” 2012). However, there are other religious and cultural groups that are supportive of these marriages (Anderson, 2011). If the government continues to rule on marriages, these rulings are likely going to deny religious liberties to those individuals who are not supportive of these marriages (Anderson, 2011; Barber, 2013; “Marriage and Religious Freedom,” 2012; Wolf & Johnson, 2013). Imposing a ruling that deals with an inherently religious topic for many individuals violates the ideas behind the separation of church and state (Anderson, 2011). If a government is in control of what is defined as marriage, many religious organizations or religious businesses are going to disagree and are not going to be willing to marry certain individuals or participate in certain marriage ceremonies without violating their beliefs.
One example is cited by Barber (2013), who tells of an elderly woman named Ms. Stutzman. Stutzman is a Christian business owner who creates and sells flower arrangements in WashingtonState. She employs and serves homosexual individuals, but when recently asked to provide flowers for a homosexual wedding she kindly declined because her involvement in the wedding would contradict her religious beliefs. She had no quarrels from the customer and it is reported, in fact, that the customer and Ms. Stutzman even hugged before parting. However, according to Barber (2013), “…Washington State’s newly elected Attorney General Bob Ferguson filed charges against Ms. Stutzman, seeking both a monetary judgment and an injunction to physically force her to violate her Christian conscience” (para. 8). Stutzman did not break any laws, but she was treated as though she had. Ms. Stutzman had the liberty to decline because the request went against her personal religious beliefs. There are many concerns among religious communities that changes in the law regarding marriage will have an impact on many other laws and procedures as well (“Marriage and Religious Freedom,” 2012). They posit that religious adoption services who adopt children out solely to married couples would be required by law to adopt children out to same-sex couples if they were married, even if their religious beliefs did not support same-sex marriages. The religious communities also provide several examples of how the government’s involvement in marriage has already impinged religious liberties:
For example, in New Jersey, the state cancelled the tax-exempt status of a Methodist-run boardwalk pavilion used for religious services because the religious organization would not host a same-sex “wedding” there. San Francisco dropped its $3.5 million in social service contracts with the Salvation Army because it refused to recognize same-sex “domestic partnerships” in its employee benefits policies. Similarly, Portland, Maine, required Catholic Charities to extend spousal employee benefits to same-sex “domestic partners” as a condition of receiving city housing and community development funds. (“Marriage and Religious Freedom,” 2012, pp. 2)
These are legal consequences that impinge the religious liberties of citizens. In a country that believes in the separation of church and state, marriage should be left to the people and to the cultural and religious organizations so that there is truly a separation of these institutions and the liberties of all citizens remain intact (Anderson, 2011).
If a government decides to define marriage for its citizens, religious institutions in that country that do not agree with that definition may be forced to recognize a definition of marriage that they do not support. There is also a potential for the government to force organizations to perform marriages they do not agree with. The government only became involved originally to provide an avenue for interracial couples to get married when cultural or religious institutions would not marry them. Anderson (2011) calls attention to the fact that there are many religious organizations and cultural institutions that would now perform interracial marriages, as well as homosexual marriages. He suggests that because there are non-governmental organizations that will marry these individuals, there is no longer a need for the government to be involved. The government’s involvement in marriage is no longer necessary. It continues, however, likely because it is a way to earn money and perhaps it is also a way to gain more power, both of which go against the intentions of the U.S. Constitution.
Marriage, the Constitution, and Money
Marriage may be a historical institution, but not within the United States government (Anderson, 2011; Coontz, 2007). Government was not involved in marriage until after the Civil War, but was then only rarely involved. The U.S. Constitution does not mention marriage as one of the inherent rights of the people (Kuznicki, 2012). The tenth amendment of the Constitution does, however, say, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Kuznicki, 2012, para. 8). The Petition for a Writ of Certiorari in the Proposition 8 case, also suggests that while the Constitution does not mandate that the definition of marriage should be the traditional definition of marriage, it also does not say anything against the traditional definition. The Petition goes on to state that the Constitution leaves the definition of marriage “…in the hands of the People, to be resolved through the democratic process in each State” (“Petition for a Writ of Certiorari, Hollingsworth v. Perry,” 2012, pp. 7). Marriage is not something intended to be a federal government concern, or it would have been specified in the Constitution. Indeed, for most of United States history, it was governed by state governments or people and the cultural and religious institutions they were members of (Anderson, 2011; Coontz, 2007; Kuznicki, 2012). Kuznicki (2012) observes that:
Marriage is not commerce, war, or taxation. It is unrelated to money, the post office, the patent system, or any of the other enumerated powers of the federal government. Its regulation is neither necessary nor proper in pursuit of those powers. (para. 2)
However, something that Kuznicki (2012) does not discuss is the fact that married couples receive benefits that unmarried couples do not (Anderson, 2011; Coontz, 2007; Kuznicki, 2012). Coontz (2007) specifically mentions the fact that a marriage license often determines who gets hospital visitation rights, health care, Social Security survivor benefits, and family leave. Anderson (2011) also mentions that there are tax and inheritance issues with unmarried couples. These things have become involved in marriage because of the government’s involvement, but perhaps they should no longer be. Coontz (2007) discusses the fact that many couples are not marrying but they often stay together and desire to have the same benefits as a married couple. Regardless of one’s personal views, this is an interesting point because it seems to suggest that unmarried couples are not being treated equally with married couples according to the Equal Protection Clause of the Fourteenth Amendment (“U.S. Constitution – Amendment 14,” 2010). It would be much less complicated, however, if the government was not involved. Perhaps the government remains involved because it provides them with more power and with more money (Anderson, 2011; Taylor, 2004).
Earl Taylor, Jr. (2004), the President of the NationalCenter for Constitutional Studies, suggests that by placing marriage in the law, it has taken it out of the hands of the people as the tenth amendment calls for. He also states that because of the government’s involvement, especially the involvement of the judiciary branch, legislative power has diminished while the power of the judges has increased. The Founders of the United States government, according to Taylor, intended for the judiciary branch of the government to be a place for judgment, while the people were meant to decide on the more difficult issues. Marriage has certainly been a difficult issue over the years and has seen much controversy, whether it be interracial marriages in the past or homosexual marriages today (Coontz, 2007). The government’s involvement has likely made the issue of marriage and marriage rights even more difficult. If the people of the country were to decide on marriage personally, the controversy and difficulties the subject has seen may begin to decrease and the power of the judiciary branch may also begin to level out.
The government may additionally remain involved in marriage because of money (Anderson, 2011). Anderson (2011) suggests that marriage laws are essentially only used to tax or to redistribute money. If this is the case, the government is not really helping the people or letting them personally decide on the subject. The author would argue that a government that remains involved in marriage for money, or for power, should not be involved in marriage at all. The government originally became involved when it was necessary to help marry couples that other organizations would not marry. Today there are many organizations that will marry couples of any kind, and so the government’s involvement is no longer needed (Anderson, 2011). The historical manner in which marriages were performed worked for many years and will work again in today’s society. If the government remains involved in an issue like this, U.S. citizens may have their personal and religious liberties violated for the sake of money and power, while the simple solution of reverting back to the traditions of history would help the government be run by the people as the Constitution intended, and would also help reduce the level of controversy regarding the definition of marriage because the people could define it for themselves.
The government has been able to aid in the marriage of interracial couples, which was a great step in the history of our country, but after it did this, its involvement in marriage increased perhaps a little too far, likely because of its desire for money and power (Anderson, 2011; Coontz, 2007). In the process, it has practically taken over a historical institution that should have been left for the people of the country to decide as the tenth amendment declares (Anderson, 2011; Kuznicki, 2012). Marriage has historically been a cultural, personal, and religious institution rather than governmental, and as such there is not a true separation of church and state within the marriage institution when the government is involved (Anderson, 2011). If the judiciary branch rules in favor or against Proposition 8, it is a step beyond their power. Instead, the government should take a step back from marriage and return it to its historical place in society. There are indeed ways to see this accomplished, and several citizens have made suggestions. For example, several authors reviewed in this paper have suggested ways to combat the Constitutional and power issues that have been discussed, while also allowing marriages to be placed back in their historical positions. Coontz (2007) suggests to return to the historical ways of marriage, allow churches and other organizations to decide for themselves what kinds of marriages are acceptable, and furthermore, allow couples themselves to decide what, if any, obligations and protections they want, regardless of their marital status. Kuznicki (2012), on the other hand, suggests that the state should be in charge of marriages, while Anderson (2011) suggests as an example that other means of taxation or inheritance rights can be developed or are already in existence, ready to be utilized. Simply stated, if the U.S. returns to its “marital roots,” it could avoid constitutional issues, controversy, and instead provide equal protection to all of its citizens in a way that people of all belief systems could accept with a little more ease and with fewer controversies.
Anderson, G. (2011, May 16). Why Christians should oppose a government definition of marriage [Web log post]. Retrieved from http://blog.ganderson.us/2011/05/why-christians-should-oppose-a-government-definition-of-marriage/
Barber, M. (2013, April 13). Religious freedom & ‘gay marriage’ cannot coexist. Townhall.com. Retrieved from http://townhall.com/
Coontz, S. (2007, November 26). Taking marriage private. The New York Times. Retrieved from http://www.nytimes.com
Kuznicki, J. (2012, December 17). Marriage should not be regulated by the federal government. U.S.News & World Report. Retrieved from http://www.usnews.com/
Loving v. Virginia, 388 U.S. 1 (1967).
Marriage and religious freedom: Fundamental Goods that stand or fall together. (2012, January 12). [Letter Published Online]. Retrieved from http://www.usccb.org/
Petition for a Writ of Certiorari, Hollingsworth v. Perry, No. 12-144 (U.S. Jul. 30, 2012).
Taylor, E., Jr. (2004, April). Marriage and the Constitution. NationalCenter for Constitutional Studies. Retrieved from http://www.nccs.net
U.S. Constitution – Amendment 14. (2010). In US Constitution.net. Retrieved from http://www.usconstitution.net/xconst_Am14.html
Wolf, R., & Johnson, K. (2013, March 26). Supreme Court justices question gay marriage ban. USA Today. Retrieved from http://www.usatoday.com/