Gay marriage has been a major issue in America. This article originally ran in March, 2013. As I predicted, the SCOTUS stuck down the DOMA today.
I have received an avalanche of letter, phone calls, and e- mails regarding Tuesday’s column on my recommendation to the State of Arizona to eliminate the marriage license as a method to calm the waters on the issue of gay marriage.
Let me be clear, I did not do so without some thought into the matter, or research.
Before we go forward as to reasons why I did, let’s clear the air on the issue at hand. The gay marriage issue is not one of love or rights but of benefits. Gay couples want the same benefits that heterosexual couples enjoy insofar as tax deductions and social security benefits. Anyone that tells you otherwise is fooling themselves and you. All of court cases before the Supreme Court involve financial dealing between the states and gay couples. Homosexuals can live as married couples in every state of union and can provide for each other as married couples through contract in exactly the same way as heterosexual couples can. They can’t get benefits from the federal government though—and that financial dealing is at the center of this issue, and why that’s important I’ll explain in a minute.
The issue of the marriage license is at heart of the matter. The license issued by the state is merely a document that gives any couple permission to marry, and it is kept as a record of the marriage in said state. It is NOT tacit approval of said marriage, nor is it verification (such as in a birth or death certificate). That distinction is important, since in our Constitution there is no constitutional standard for marriage. That is to say, marriage as to what it is, is not defined anywhere in the document.
Licensure of marriage goes back to as early at the 1600’s in America, but the general consensus as it being to an accepted practice, was only as late as 1836 when the US adopted the British Code. It was designed to make uniform the marriage record-keeping procedure and unify Catholic and Anglican marriage. Up until then, any clergy or civil body could perform a marriage and the records were kept by local churches and common houses. While Quakers in the US are still allowed this method of licensure, the vast majority of marriages now are recognized by the state with a standard license document.
Therefore, the license has no legal standing on its own; it is merely a method of record keeping and authorization. The assignment of benefits by the state simply uses that as a legal method to standardize a delivery method of benefits. Although it was used in some jurisdictions over the years to prevent certain type of interracial and familial marriage, in and of itself, it does not establish a legal standard of marriage.
Thus, when the state started issuing licenses, it did so by its own authority as granted by people not willing to challenge the state, not by ordained right or legal establishment of said rights.
As such, gay rights advocates are on shaky ground to have the state codify their marriages. However, it does not preclude gays from marrying privately—ASSUMING THEY DO NOT WISH TO HAVE BENEFITS.
Well, what benefits are we talking about? The case before the Supreme Court is not about love, it’s about a 300k tax bill. Edith Windsor, 83, of New York, sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009. Windsor married Thea Spyer in 2007 in Canada after doctors told them that Spyer would not live much longer since she suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor. Spyer who lived her entire life without marrying, did so in 2007 to avoid paying the legal tax due on her estate, which the state naturally contested.
If the SCOTUS strikes down the Defense of Marriage Act, millions of Americans could avoid paying taxes at death by marrying anyone they so choose. Naturally this might prove difficult under normal marriage law, but if DOMA is struck down, you could marry ANYONE, even a family member, to avoid taxation.
This is why the leftist machine is pushing so hard—it seeks to throw a monkey wrench into federal benefits and bankrupt the union.
So between Social Security benefits, and taxation benefits, licensure provided a legal means to document an established relationship between two individuals. Naturally such documentation in this day and age could be provided by means OTHER than the government. Churches, private marriage houses and social groups could provide that documentation just as easily as the state.
This is the heart of the matter. If government had not interfered in the private affairs of men and women it never would have put itself in this bind. If government did not have such onerous estate taxation laws, this suit would have never been brought to the court. If government had minded its own business in the first place, the people of this country would not be as divided as they are over this issue. If government had not tried to engineer society by providing benefits to one group over another we would not be at each other’s throats.
This is an artificial controversy over a ridiculous subject.
Of COURSE people have the right to live with whoever they want. Of COURSE Republicans and conservatives support the notion that anyone has the natural right to be in love with whoever they choose. While religious groups may take issue with the morality of homosexual behavior, it should not be a subject of political discourse.
The discussion we should be having is not over who can love who, but rather why is our tax code so onerous and complicated? Why does our benefits system rely on the outdated notion that women partners of couples must be taken care of by the state, since they now work and can vote? Why does government feel the need to provide ANYTHING to anyone because of social status rather than a safety net for poverty stricken people?
This is what I mean when I say more laws and licenses are a bad thing even if done with good intentions. Whenever you pass laws, you open up a can of worms that you have no idea how will affect society now or 100 years from now. Although some enlightened people mentioned this in 1836 when licensure became standardized, the states went ahead anyway, and now look where we are—discussing the morality of society, which was never intended by the licensure process, a process intended merely to standardize the record keeping of marriage.
Conservative principles are just that- principles that you go by even when cannot foresee problems.
The states need to abandon the marriage license laws to end this, because it will not end with these two cases. It needs to turn marriage back to what it original purpose was – a sacrament performed by clergy or by civil union. By removing licensure, you eliminate 99% of the morality debate, and then you can have a discussion about our benefits system, and why exactly the state needs to provide benefits to one group of people, but not another, and simplify our tax code. Arizona should immediately remove state licensing and revert it back to the pre 1836 private party system.
Then, and only then, can we live in a less contentious society, a society envisioned by the founding fathers where everyone is the same, and tolerant of everyone’s own lifestyle or religion.
Copyright 2013 Liberty Never Sleeps