It is difficult to watch or listen to the news, talk shows or pick up a newspaper or magazine that does not at least comment on the question of same-gender “marriage.” What has not to my knowledge been mentioned, even by conservatives who are speaking out against same-gender “marriage,” is the false premise which has been used to market this idea to the public. The essential claim is that gays are being denied their Constitutional right to marry. The appeal to Constitutional rights can really play well. It plays well among Liberals and Progressives because the claim gives it the air of credibility, especially because so few of them have any inkling of what the Constitution actually says. For that reason they may not even be aware that the essential claim is false.
I am not in this article really going to argue for or against same-gender couples which are demanding to have marriage Federally redefined to include their sexual attractions. The reason is that in a pluralistic Republic, such as we live in, every citizen has the Constitutional right to attempt to persuade the elected officials to legislate in a way that favors their view. We made this point in our 2010 article “A Constitutional Right to Marry?”. This is true for Gays, straight, Democrat, Republican, Independent, Liberal, Progressive, Conservative, etc. and the courts have agreed as we point out in the article.
Joy and I were teaching on this issue 25 years ago and at that time suggested that about now culture would likely be accepting same gender relations under the category of marriage. Inspite of the recent Time Magazine article, “How Gay Marriage Won” this has not become the law of the land yet but has made major headway. But, again, this has been done based on a lie and then marketed well. Why do I say this is based on a lie? Simple, to my knowledge no one has denied anyone the right to marry. The actual issue at the heart of this debate isn’t that anyone has been denied the right to marry but that the marriage licensing criteria discriminates and therefore limits the field of marriageable candidates. Before I continue I know that some readers will be distracted since I have not pointed out that the Constitution doesn’t really address marriage or the rights associated with marriage. This has been under the jurisdiction of the individual States since the nation’s inception. We have a brief historical legal challenges and stances in the U.S. in our article, “A Constitutional Right to Marry?”. The U.S. Supreme Court has consistently affirmed the State’s right to define the meaning of marriage, resisted a Federal redefinition and has also consistently left the licensing criteria to the individual states. This may change with the 2 cases currently before the Supreme Court. Time will tell.
But what of the claim that Gays are being denied the right to marry? Marriages are licensed by each state. Licenses are by nature discriminatory. I know. Many people hate that word but it is actually a very good word and practice in many circumstances. Some people are said to have discriminating tastes in food and/or beverage choices. That means they choose something that is superior over something that is mediocre or even not good. Discriminating can be bad or good or even neutral depending on the criteria used. In the business world there is BOQ or Bonafide Occupational Qualifications which may limit or exclude some from certain professions. An airline plot may be excluded from a job as a pilot if they are 82 or an anti-Semite may be excluded from being a Rabbi without consequence to or punishment of the synagogue that refuses to ordain or hire him or her. Doctors are licensed and the criteria for their licensing is fairly stringent. Most of us are glad this is the case for this discriminating criteria weeds out those who are unqualified and allows those who are qualified to be licensed as physicians. It is even illegal to practice medicine without a license. Discrimination is an essential component of the licensing process.
Does the right to marry automatically include everyone you may want to marry? Each state has criteria which provide marriage licensing qualifications such as applicants must be a resident of the state or at least within the borders of the state for a period of time before a license may be issued. The length of time varies from state to state. They also have negative criteria which limits the marital pool. All states have language which declares those an individual may not marry. The lists include, father, mother, grandfather, grandmother, brother, sister, son, daughter, aunt and uncle. You may not have more than one spouse at a time (no bigamy, polygamy, polyamory). One cannot marry another that is under the marriageable age which varies from state to state and has been changed from time to time. In most states one cannot marry their first cousin. Until recently, in all states one could not marry someone of the same gender. All very discriminatory.
Claiming they are being denied Constitutional rights plays on the sense of right and wrong for many Americans and is therefore a good marketing strategy but is absolutely false. Of course, if they were honest there would be less success for their cause. There would be a huge public cry and backlash if the argument was that marriage laws are discriminatory (which they are) and all discrimination is evil therefore all marriage laws must be abolished. But that would mean anything goes. If the term is being redefined why should it be limited to 2 in a “loving relationship”? Why not 3 or 5 or 20? Why not fathers marrying sons or daughter or even sons and daughters. Why not a 40 year old marrying a 10 year old. Group marriage (polyamory) would be just as socially and legally acceptable as same gender marriage and traditional marriage could be frowned on as narrow minded and limiting. None of this is new news. Stanley Kurtz brought these issues up 10 years ago in a Weekly Standard article Beyond Gay Marriage:
Advocacy of legalized polygamy is growing. A network of grass-roots organizations seeking legal recognition for group marriage already exists. The cause of legalized group marriage is championed by a powerful faction of family law specialists. Influential legal bodies in both the United States and Canada have presented radical programs of marital reform. Some of these quasi-governmental proposals go so far as to suggest the abolition of marriage. The ideas behind this movement have already achieved surprising influence with a prominent American politician.
The president and others claim this is an issue “fairness.” Fine. Shouldn’t they be honest as to what the actual issue is or would that expose the cry of “fairness” as being a lie?