L. Neil Smith's
Number 263, March 14, 2004

Damned if it's Bush. Damned if it's Kerry. Damn.

To Marry or Not to Marry
by Todd Andrew Barnett

Special to TLE

President George W. Bush's backing of the newly-proposed constitutional amendment to prohibit states from according same-sex couples with marriage licenses ought to be suspect. After all, the proposal, which was introduced by Rep. Marilyn Musgrave (R-CO) in the House on May 21, 2003, has certainly ruffled a lot of feathers across the political spectrum. At worst this amendment has finally given Bush and his statist lackeys the political ammo they need to combat the "threat" of same-sex marriages—a "threat" which they claim will undermine the institution itself.

The long and short of the amendment is this: if it is passed, it will impose its own definition of marriage upon the states, forbidding them to recognize said marriages already accorded to same-sex couples in other states, the fact that the Constitution's "full faith and credit clause" mandates states to embrace "the public acts, records, and judicial proceedings of every other state" notwithstanding. The crux of the problem here is that the Defense of Marriage Act of 1996 already defined marriage as being a union between a man and a woman and allowed states to refuse to acknowledge marriages granted to same-sex partners in other states. It is obvious that this amendment is being touted as a band-aid to succeed where DOMA had failed.

In his recent statement to the Associated Press at the White House, President Bush said, "If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America." In case one hasn't noticed, these remarks are tantamount to irrational fear-mongering. Only a neoconservative like George W. Bush would instigate hysteria and panic over the issue of gay marriage.

Bush then goes on to say, "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society." While there is ample truth to this statement, it still does not justify the need for the government's incessant intervention in the institution of marriage. How can government strengthen marriage simply by restricting individuals their right to marry, all on account of their sexual orientation? What evidence supports their conclusions?

Bush, of course, says, "Our government should respect every person, and protect the institution of marriage." But how can government "respect every person" by "protecting" marriage? Protect it from whom and what?

The embarrassing aspect of this uproar is that the president himself has repeatedly claimed that he is an ardent supporter of the Constitution. But in light of his record throughout his tenure in the Oval Office, the facts state otherwise. Have conservatives in his own party forgotten about the fact that he's meddled in health care, education, private charity, free trade, and free enterprise— actions that the Constitution expressly forbids? His calamitous invasion and occupation of Iraq ousted its leader, the fact that he circumvented and violated the constitutional requirement to secure Congress' permission to declare war and that it lead to thousands of troops maimed and killed in battle notwithstanding. His profligate spending and empire-building—not to mention his contempt for civil liberties protected by the Constitution—leave much to be desired.

In a nutshell, this president has never had any good use for the Constitution—until today.

If the president and his collectivistic stalwarts get their way, it will be another deadly blow to the Constitution since the passage of the Eighteenth Amendment (which illegalized alcoholic beverages) in 1919. One wonders whether the president's mental faculties are in order, given that Bush and his neoconservative cohorts have amply demonstrated their astounding yet pitiful ignorance of the purpose of the Constitution. After all, it goes without saying that the administration has undoubtedly welcomed this ludicrous idea for the sake of preserving its political expediency by pandering to a disaffected conservative base that frowns upon his reckless and irresponsible foreign and domestic policies.

It boils down to the framework of the Constitution. What is the legitimate role of the federal government in a free society? The Constitution makes it abundantly clear: to protect the life, liberty, and property of Americans by restricting its size, scope, and powers. Individuals can endlessly debate on whether it has achieved its objectives, but its role is self-evident. The Founders never intended for the government to morph into an autocratic organization, nor did they wish for a democratic despotism (a form of totalitarian government which subjects its citizenry to gross servitude via the will of the majority)—a brand of tyranny opposed by Alexis de Tocqueville and Thomas Jefferson.

Point of fact, in the eyes of Jefferson, government was to be placed in a cage (meaning it was to be limited by the Constitution), its powers, in the words of James Madison, "few and defined." The republican doctrine of enumerated powers, including the Tenth Amendment (which delegates all other powers to the states and the people), establishes the objective case of the Framers absolutely clear. If that is the legitimate role of a government in a civil society, then the cage that holds the federal beast in confinement must be preserved for the protection of human liberty. Ergo it is indeed improper to propose an amendment that forbids individuals from engaging in voluntary, peaceful activities. If that cage is opened or compromised by amending the Constitution, it will set loose the beast on people who are living their lives peacefully and happily.

Simply put, if the Bush administration passes this amendment, we can only expect to see the Constitution sullied. Furthermore, it means that the very document that was drafted to protect us from abuse of government power will have been utilized to menace and restrict. Sadly this will set a very destructive precedent, which could place the future of our liberty in grave jeopardy. Regardless of what the Founders' views on same-sex marriages would have been, such a perversion of the Constitution would not only be appalling to them— it would have been repugnant, to say the least. That same thought should lie in our heads as well.

The only way to resolve this conflict is to remove marriage from the political sphere at once. That's called privatizing marriage. It means that the state would no longer decree who can and cannot marry. It also means that the parties involved in the decision to marry would define the terms of the contract, which the state may be called upon to enforce. It also means that couples who want to solidify their relationships with a secular ceremony or a religious ritual would be free to do so. By privatizing this institution, it would cease the quarrelsome conflict that has divided many Americans and members of the Left and the Right.

Marriage has been traditionally viewed as a contract—an agreement between two individuals who wish to complete their relationship by making it concrete and eternal. It is a sacred, religious covenant for some and a civil contract for others. That ought to be more than enough reason to support a separation of marriage and state. What will it take for conservatives—including their religious ilk—to understand that?

Copyright © 2004 by Todd Andrew Barnett. All Rights Reserved.


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