Getting Government Out of the Marriage Business

It seems surreal a single unelected lifetime judge could decide that the nation’s supreme law requires its unwilling states to derail human history’s central social institution.  The bad news is that’s likely to happen this month.  The good news is that unwilling states can sidestep it.

The lifetime judge is Supreme Court justice Anthony M. Kennedy.  The supreme law is the U.S. Constitution.  The unwilling states are Kentucky, Michigan, Ohio, and Tennessee.  The social institution is heterosexual marriage.  The case is Obergefell v. Hodges.  The issue is whether the U.S. Constitution compels unwilling states to license homosexual marriages.  And Justice Kennedy – the balance of power between the Court’s four conservative and four liberal judges – will swing that issue’s decision one way or the other.

Of course, the U.S. Constitution doesn’t even mention marriage.  It does, however, expressly limit the federal government’s powers, and its founding principle reserves all remaining powers exclusively to the states and their people.  How then has it eventuated that the sole determinant still standing between the unwilling states and homosexual marriage is a single Supreme Court justice? 

The constitutional deus ex machina is the 14th Amendment’s Equal Protection Clause.  Lower courts have already used that clause to impose homosexual marriage on 25 unwilling states (only 12 states have voluntarily adopted the federal handwriting on the judicial wall).

But how could a clause in a Reconstruction-era amendment – designed to prevent the postbellum South from abridging the newly acquired equality of its emancipated blacks – have 147 years later become the horse upon which homosexual marriage rides into the supreme law of the land?  Are not race and sexual activity different?  Is heterosexual marriage tantamount to homosexual slavery?

Like the Constitution itself, the Equal Protection Clause doesn’t mention marriage.  In fact, the Clause was but a race-based provision to validate the Civil Rights Act of 1866, which – absent the Clause – would itself have been unconstitutional.

Race – as one Obergefell brief notes – is an immutable condition.  Homosexuality isn’t.  It’s a sexual activity.  Applying the Equal Protection Clause to immutable conditions is one thing; applying it to sexual activities is another.  Besides, Obergefell isn’t about enfranchising homosexuality.  What it’s about is metamorphosing an ancient term.  It’s a judicial species of semantic transubstantiation.  And, poof, “marriage” changes from the natural conjugal union of opposite sexes to any unnatural cohabitation of similar sexes.

There’s nothing “constitutional” about homosexual marriage save reconstituting the term “marriage” itself.  And the federal government’s constitutional powers don’t include judicially forcing unwilling states to reconstitute fundamental social terminology.

If the term “deviation” any longer has meaning, homosexuality’s deviant.  It deviates from sexual normalcy at about the same rate as psychopathy deviates from psychological normalcy – somewhere not much exceeding 1%.  A single Supreme Court justice being presently posed to derail 99% of America’s marriage normalcy is about as constitutionally reasonable as one being presently posed to derail 99% of America’s psychological normalcy.

Harmlessly deviate sexuality is a natural right, just as harmlessly deviant psychopathy is.  What right does any government – let alone the federal one – have to proscribe deviant human behavior that harms no one?  Is not your life, your liberty, and your pursuit of happiness – no matter how much it harmlessly deviates from mine – not your natural right?  Every deviancy has its price, but if your deviancy doesn’t harm me, what right have I to prevent you from paying its price?  If homosexuality makes you happy, more power to you.  If sodomy soothes your sleep, sweet dreams to you.      

But deviant sexuality derailing marital normalcy is no less harmless than deviant psychopathy derailing behavioral normalcy.  The aim – and ultimate consequence – of constitutionally forcing unwilling states to issue homosexual marriage licenses is no less than derailing the central social principle informing 100% of human biology and organizing 99% of human culture.  Some progressives already preach the family’s demise.  Aldous Huxley and George Orwell anticipated this kind of dystopia over half a century ago.

If the 14th Amendment requires equal protection of the laws at every governing level – as it does – then the unwilling states can sidestep the most likely Obergefell decision by simply getting out of the marriage business.  Laws that don’t exist admit of no protection – equal or unequal.  The U.S. Constitution requires no state to have any law respecting marriage.  There’s no aspect of marriage that private parties can’t privately manage by contract between none other than themselves.  State laws subjecting biological parents to the care of their minor children and managing any other socially harmful (or, indeed, beneficial) aspect of conjugality need have nothing to do with state laws respecting marriage itself.  And no law can constitutionally compel any religion to sanction any marriage other than those its congregation chooses to sanction.

What business is it of the state with whom – or under what conditions – we conjugate?  Are not our lives our own?  Provided the law prevents our conjugation from harming others, may we not seek conjugal happiness by privately contracting with whomever for whatever conjugation we chose?  Do we not have personal liberty to freely conjugate?  Do churches not have the religious liberty to sanction whatever conjugation they freely choose?

Besides, if equal protection of the law compels states to license homosexual marriage, why does it not also compel states to license either sex marrying multiples of whatever sex?  Why does it not also compel flat taxes, outlaw affirmative action, prohibit forced welfare redistribution, and equally treat a thousand other governmental impositions upon free men in free markets now treated unequally under present law?

Equal protection of the law’s an ideal more honored in the breach than the observation, and Obergefell is socially puerile political pandering to a deviant 1% at the expense of the non-deviant 99%.

Why should unwilling states not discontinue their forced participation in federal misapplication of the Equal Protection Clause – their being forced to become accomplices to a social-justice insanity intent on destroying the nation’s conjugal culture?

Each citizen could then personally bear the contractual burden of his private conjugal conviction.

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