Debate About Gay Marriage All Wrong

That’s right.The debate about gay marriage is all wrong.

The controversy has come to a head in my home state of Minnesota so I thought I would chime in with some information not known by most Americans.

I’ve watched this debate with interest over the years, not because I’m interested in the topic, but because I’m amazed at how easily we Americans are baited into knock-down-drag-out fights about things that should be intuitively obvious.to Americans….

We’ve fallen so far from the liberty-loving vigilant citizens (I hesitate to use the word “Libertarian” because I think conservatives have trouble accepting the term simply because it sounds too much like “liberal”) we had during and after the American Revolution that when the government or some legislator (or executive) spouts some nonsense about what the government has to control next, we don’t even speak up in protest.

Let’s look at the topic of marriage.  There are two aspects to the concept of marriage; religious and legal.

On the one hand, it is a religious institution with the various religions performing their own rites and ceremonies to ensure that the union of the couple in question has been endorsed (i.e. “blessed”) by the Supreme Being they’ve chosen to revere.  Regarding the rules and policies of the various religious groups controlling the gender combination of a married couple, there can be no debate except inside those religious institutions.  It is religion, after all, and really none of the government’s business and not the business of those outside the religious groups either.

In the Legal arena is where we Americans have really been hoodwinked.  In a legal sense, a marriage is a contract.  It’s an agreement between (usually!) two people to share their lives, their fortunes, their homes, have some level of romantic loyalty, etc..  There was a time when certain strata of society actually wrote marriage contracts (I suppose this still happens in some places).  An engagement, under English Common Law, was considered a contract and if a man changed his mind after being engaged to a woman, he could be sued for what is known as “breach of promise.”  The point is that a marriage, again legally speaking, is a contract.  It’s an agreement.  The practice continues in a slightly different form.  We still have a form of  a separate “marriage contract” but it is more or less an addendum to the main contract which is formed when a marriage license is used to unite two people.  This is usually called a “prenuptial agreement.”Contracting is something that all Americans have the unlimited right to do.  Please see Article I Section X of the United States Constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Cutting out the parts that don’t apply to this discussion, this important section of our Constitution reads as follows:

No State shall pass any Law impairing the Obligation of Contracts.

There you have it.

A marriage is a contract.

Any law impairing the obligation of a contract is unconstitutional.

We are all therefore free to contract however we wish, and with whomever we wish.

So why the debate?

That’s a bit more complicated because we have all come to believe something that is simply not true:  that you need a “license” to get married.

The history of marriage licenses in the USA is one of blatant ugly racism.  Religious zealots managed in many states to get (unconstitutional!) laws passed which forbade interracial marriages.  A “license” in its simplest form, is permission to do something that would otherwise be against the law i.e. it’s illegal to hunt the government’s deer, unless the government gives you a license (or you BUY one).

So it was for a black person and a white person who wanted to get married.  They had to ask the government’s permission and get a “marriage license.”

Of course they had to pay a fee for it.

Eventually, the local governments began to convince people that everyone needed a marriage license and so the CUSTOM of getting a marriage license evolved into a literal TAX on getting married.  It is now nearly universally believed that you need a marriage license in order to get married and so the government successfully extorts $20, $50, or $100 from every couple getting married.

With the passage of the Civil Rights Act and other legislation banning discrimination based on race, the whole (unconstitutional anyway!) need for marriage licenses evaporated but what didn’t evaporate was the various governments (usually county governments) desires for more revenue.

So the practice continues.

That’s not the end of it, however, not by a long shot.  By getting a marriage license, you make the government a party to your marriage contract.  There are not two parties to the contract but actually three and the third “party” (i.e. the government) has the power to decide if and when the contract can be dissolved (divorce) and under what conditions.  We all understand the long, painful, and EXPENSIVE process of divorce in America and who benefits from it?  The government (court costs) and attorneys.

So if all Americans have the unlimited right to contract, and a marriage is a contract, where did the government get the power to control the gender and racial composition of a “marriage” in the first place?

They got it from us because we (Americans) didn’t stand up and wave the BS flag when they started the practice of marriage licensing (and the racist intermarriage laws).

So why is the debate all wrong?

Because the matter was decided over two hundred years ago.

Americans have the unlimited RIGHT to contract and a marriage is a contract.

As a practical matter, to get organizations like insurance companies and employers to recognize the marriage contract is a “whole ‘nuther matter.”

A matter of contracting.

The debate is all wrong because a whole lot of really emotional people are arguing, some for and some against, the government giving permission to people to exercise a RIGHT which the government never had the power to restrict in the first place.

If the government can take it away, it’s not a right.  Remember that.

Gay people have the RIGHT to marry just the same as heterosexuals do.  They always have and always will.

It’s like Dorothy’s ruby slippers.  It took a long time to finally figure it out but all you have to do is click your heels together three times…

But if you don’t click your heels together, the man behind the curtain will keep telling you how it’s gonna be.

Thanks for reading.

cma