Tag: marriage

Laboratories of Democracy

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I have been thinking about the full faith and credit clause of the Constitution (FF&C) and how that has played out in some areas of public policy. Specifically I have been thinking about how some areas of policy allow for states to pick and choose what faith and credit they apply to the policies of other states and how that contributes to the laboratories of democracy that out states were expected to become within our nation.

Specifically I woke up thinking about gun rights. This is not because I carry a gun for my own protection, although I fully support a broad interpretation to the 2nd Amendment, it is simply because it provided a convenient illustration of the issue.

Full faith and credit might be used to argue that every state should be required to accept a concealed carry permit issued by any other state. In fact they do not. Each state is able to set their own requirements to carry such a permit and also to permit reciprocity of permit recognition with other states on a state-by-state basis. The thing that got me thinking of that is that Utah’s permit is one of the most widely recognized permits in the nation.

This lack of uniformity among the various states allows people to experiment with different approaches to problems and different variations on legislation. Each state is then able to recognize and/or duplicate what they see as successful in other states. This is true of individuals as well as states. For example, gays who wish to marry are free to move to Massachusetts while residents of Massachusetts may choose to leave the state if they find themselves in the minority and do not like the side effects of legalized homosexual marriage.

This kind of legislative experimentation was short circuited in the abortion debate when the Supreme Court stepped in and eliminated a wide range of available positions that had been adopted by many of the states. The Defense of Marriage Act was passed specifically in an effort to ensure that the debate about what constituted legal marriage would be allowed to follow its natural course between states rather than ahving that debate hijacked by the courts or by the argument of FF&C combined with a Massachusetts choosing to be the first to recognize a form of marriage that was prohibited elsewhere.

I don’t think we will be able to solve our national issues in any reasonable time frame unless we quit thinking that we have to solve everything from the top down with one unified solution for each issue. We should allow each state to decided which problems they feel are the most pressing and to push for solutions on those issues. That allows all the issues to be addressed simultaneously and for different approaches to be tested on each issue. If we had ten major issues that were widely considered to be our most pressing we might find that there are four to six states choosing to tackle each issue allowing us to test four to six approaches to each problem simultaneously. The other 44 to 46 states can adopt their favorite approach, or mix and match for a second round of experimentation.

It seems to me that there is only one truly federal problem that we face – that is our overspending habit by the federal government. The solution to that one problem is simple – start spending less by getting out of the business of trying to solve all the problems of the country. Start acting like a coach managing the strategy direction and development of the team (which includes states on defense and private enterprise on offense) rather than trying to be the star player trying to single-handedly carry the team to a championship.

Tags democracy, elevate, experiments, free markets, government, marriage, political philosophy

National State

Proposition 8

I have stayed silent on proposition 8 thus far although I don’t imagine that many people would guess wrong if they were to predict my position. I have heard plenty of opposition to the proposition so I know the major reasons for those who oppose it. The most famous reasons for those who support Proposition 8 seem to be the "Six Consequences." I have not read those six consequences, but again, the opposition has been vocal enough that I have a pretty good idea of what those are. Today when I read the statement by Constitutional Law professors from California I decided that it was time to set the record straight about this whole issue. Like so many issues, the rancor and the passion on both sides has served to obscure the real issue and color the arguments into inaccuracy. For my purposes I will stick to the 3 points emphasized in this statement .

The first point is correct only to the first sentence – Proposition 8 would change existing California law. The trick is that there is nothing inherently bad about changing our existing written laws, especially when those laws are unreasonable in any way (self-contradictory, vague, or outside the jurisdiction of law are examples of why a law may be considered unreasonable). Those arguing in favor of Proposition 8 are arguing that the definition of marriage falls outside the jurisdiction of human law. To them it is not a matter of discrimination, it is a belief that the following statement is fundamentally false on simple semantic grounds:

Proposition 8 would forbid government officials from according gay men and lesbians a fundamental right they now enjoy and that all other adults in California will continue to enjoy: the right to marry a person of their choice.

The real argument behind Proposition 8 is that no person has the fundamental right to marry the person of their choice but that, in fact, every person finds that their choice is limited by the very definition of what constitutes marriage. At the core, what proponents of proposition 8 are claiming is that marriage is not a man-made construct and cannot be made to conform to the changing whims of society. When society forbade interracial marriage half a century ago it did not mean that interracial couples could not meet the criterion of marriage, only that society was too myopic to tolerate such a marriage.

The real argument of Proposition 8 supporters rests on two premises: 1) that what constitutes marriage is defined by God and not by society, and 2) that God’s definition of marriage requires (among any other criterion) that the parties to marriage may not share a common gender. Anyone who accepts those two premises (as I do) must support this proposition or be in open rebellion against God. (Those who reject these two premises cannot be judged by their fellow men to be in such rebellion on this issue.)

There are two very unfortunate truths regarding the arguments being made by most proponents of Proposition 8. First, they give little if any emphasis to their real argument (as stated above) preferring instead to try to make their case in terms of human law (which argument is naturally riddled with bias and inaccuracy as I will show below). Second, they fail to articulate that – contrary to what opponents claim in order to accuse them of bigotry and discrimination – while they believe that marriage by its nature cannot be entered into in a homosexual fashion they do not argue that gays and lesbians do not have the same fundamental rights as all other people, namely the rights to devote their lives to the person of their choice, to share their earthly possessions with the person of their choice, to offer care and support for the person of their choice in times of emotional, financial, physical, or mental distress (or comfort). In other words, gays have every right to cohabitate, enjoy hospital visitation and inheritance rights, and everything else commonly associated with marriage, but we assert that it is a matter of fact, and not a matter of discrimination that such sharing does not meet the qualifications for the term "marriage."

What is being decided by the voters of California is whether they will make California law conform with the definition of marriage espoused by the proponents which states that a marriage cannot be made without the participation of both a man and a woman or if they will insist in California law that marriage is a human social construct that may be altered according to the prevailing views of society.

The second point is correct on the surface and clearly exposes a flaw in the argument by Prop. 8 proponents. The tax exempt status of churches who refuse to perform marriages for same sex couples will receive the same protection regardless of the outcome of Prop. 8. Historically the tax exempt status of churches has been regularly challenged and rarely overturned. Going forward, it will be regularly challenged and occasionally overturned. The statement by the law professors ignores the truth behind such challenges which is that taking a position against legalized same sex marriage is as good an excuse as any for a group to get angry at a church and challenge their tax exempt status.

The third point is like the second in that it is technically correct and exposes a flaw in the arguments of proponents. Proposition 8 is neither necessary nor sufficient to "prevent public schools from teaching issues relating to marriage by same-sex couples to children whose parents oppose that instruction." Here the statement by the law professors ignores the facts that regardless of what is written in the books of law, very few parents have the time or the expertise to exercise their "absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation," and that legal recognition of same sex marriage by the state gives tacit permission for those who would wish to push such an agenda to test the limits of what parents will permit.

Yes, I just offered correction on the statement of 54 constitutional law professors – including Lawrence Lessig (who I esteem very highly) – and yet the only point that anyone can disagree about is the one that this issue is meant to resolve. In other words, the voters of California will go to the polls to decide between me and those who disagree with me as far as California law is concerned. On the other points everyone should stop their posturing and pointing out of technicalities. The real issue is the question of semantics.

Tags California, gay marriage, government, marriage, morality, Prop 8, religion

culture National

Politics and Marriage

I was invited to share my views on political issues relating to marriage and was pointed to DefendMarriage.org as a reference point. I think the issues relating to marriage and the politics surrounding marriage (gay rights and abortion rights are listed in the invitation and states rights are a part of the political discussion as well) really illustrate that there is more to this issue than simply answering the question of what defines "marriage" in our society. The following statement on traditional marriage from defendmarriage.org really outlines the socially conservative position on the surface issue of defining marriage:

Marriage between man and woman is the time-honored foundation of the institution of the family. This legally recognized and protected union is intended to be life-long, preceded by sexual abstinence and followed by absolute fidelity and loyalty. Such marriage offers security, benefits, and joys that no other relationship can, including children born and nurtured in a home of love and total commitment. Marriage is the institution universally sanctioned by civilization to ensure that children receive a full measure of parental love, resources and attention.

I fully agree with that definition of what marriage is. The question that I keep asking myself in order to define the parameters of the deeper issues is why, and in what ways should the law "recognize and protect" marriage. If we return to a proper protection of individual rights many of the reasons used to justify stretching that legal definition of marriage evaporate. If two people engage in a homosexual lifestyle and establish a loving and committed relationship then the government has no business interfering with hospital visitation rights etc. Our society gains nothing by infringing upon those individual rights.

On other questions, such as tax breaks and insurance benefits there should be no issue. Individuals can will their property to anyone regardless of family connection and the government should never have a primary right of ownership that is functionally implied through inheritance taxes. The same holds true with tax breaks for married couples – there should be no need for tax breaks because we should not have an income tax (which again implies that the government owns the money and simply allows individuals to a portion of what they contribute to the GNP). If we had no income tax there would be no tax benefit for being married.

As for health care benefits for families, family insurance policies would essentially be a type of small-group policy. Insurance companies could offer policies to match any kind of group whose business they want.

With regard to adoption, that is a social service that should not be run by the state. Instead, adoption should be a matter that is resolved between willing biological parents and individuals that are willing and to whom the natural parents chose to transfer the rights and responsibilities of parenthood. No need to worry about biological children because homosexual couples have voluntarily chosen a lifestyle that does not produce biological children. (Even those who argue that homosexuality is an inborn identity must recognize that those individuals may choose not to engage in the lifestyle.)

By removing those issues from the arsenal of those who agitate for recognition of gay marriage, the discussion would be reduced to the core issue of what constitutes marriage. That issue is not primarily a political issue, it is a cultural/theological issue. The government is only responsible to ensure that individuals on both sides of the issue do not have their rights trampled by others.

Tags issues, marriage, religion