Same-Sex Marriage and the Marriage Movement

November 21, 2003

On November 18^th the Massachusetts supreme court declared homosexual unions equal in nature to heterosexual unions and established same-sex marriage as an individual right. As is usual for arguments supporting extremist social reform, the more than thirty-four thousand words of opinion from the court have a way of creating too much work for someone who doesn't have a research grant, and since the decision really rests on just a few dishonest claims and twisted logic would be regarded by most potential funding sources as too political to fund.

I was not the least bit surprised that the decision confirms what I have said about the general direction of family policy. State legislatures and the United States Congress have made enormous investments in transforming family law to the state it is in today. Despite decades of controversy, both parties (in all branches of government) have steadfastly worked toward the legal abolition of marriage (as we knew it) and the elimination of naturally derived family rights. While meaningless threats from activist social conservatives fill the air, it is unlikely that any effective action will be taken to address the root causes of this radical change.

Three justices dissented, saying the issue is "deeply rooted in social policy" that must "be the subject of legislative not judicial action." Perhaps it is not immediately apparent why the characterization of family law as "social policy" strikes a disharmonic chord. This is a distinction of great importance that I brought up in my third article in our recent roundtable discussion, Fathers' Rights and the Marriage Movement. Marriage and family were once regarded as related to "fundamental" individual rights. By contrast, "social policy" is treated constitutionally as relating to collective concerns that are largely immune from individual rights claims. Stephen Baskerville, who also participated in the roundtable, is among the many who have argued that so-called "no-fault" divorce abolished marriage by eliminating recognition of the marriage contract. This set the stage for the transformation of family law issues to social (or economic) policy, since no-fault divorce legally disassociated marriage from personal commitment. Child support reform dissassociated family law from reality.

The current political movement to ignore family relationships for the sake of the sanctity of marriage licenses fouls the issue even for dissenting judges. In current law, the male member of a marriage is assigned paternity, and nothing, not even DNA evidence establishing that another man is the father will change that assignment. The decision holds even when the mother divorces her husband and marries the father. "The institution of marriage fills this void [men don't get pregnant, women do] by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood." Thus, how can such an artificial relationship, defined exclusively by a government license and completely disassociated from actual parenthood, in which the concept of "father" is a meaningless and arbitrary political assignment, be denied on the basis of sexual preference?

(Current policy in many states holds that presumptive paternity even when falsely assigned outside of marriage cannot be changed. It is not in fact the sanctity of marriage or ancient common law that drives such policies, but the desire of states to maximize federal funding from the child support enforcement program, with minimum bureaucratic effort, at the expense of individual rights. The successful movement to eradicate family rights was designed for this purpose, and for increasing profits in the newly formed private child support collection industry.)

Ironically, the individual rights so obvious to the court in establishing same-sex marriage, due process for example, are among those the nation has blinded itself to while redefining family law in general. Same-sex marriage has arisen from the ruins and ashes of family law, and has replaced marriage and family as we knew it as the fundamentally protected legal institution from which family and family rights are defined. It cannot exist without reasoning that features strikingly obvious departures from reality, and politicians will not admit to the flaws in policies that have recently provided government with virtually unlimited powers related to marriage and family.

The art of obfuscation is such an established part of our existence today, that I expect that debate over same-sex marriage to quickly degenerate into a war between religion and civil liberties because it's easier to say. The lengthy legal argument is an artful collection of false statements and strange associations. Marriage never existed before liberal western governments invented it, for example (and therefore has no nature apart from a government license and its associated civil regulations). The "right" of same-sex partners to get married is comparable to the right of blacks to equal access to education. Denying marriage to same-sex couples places an unacceptable burden on "their children."

While teasing readers with libertarian notions, the court solidly proclaims the death of personal life so far as family is concerned. In one section it writes: "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life." In another, necessary to the outcome, just the opposite view is taken as firmly established. "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State."

A generation has been born in America that cannot distinguish between personal life and activities requiring state approval. They do not recognize that the issuance of a marriage license and defining rights and obligations in divorce were once considered intrusive, any more than future generations will probably understand debate on gun registration and firearms restrictions. The state is involved obviously, as proven by the issuance of a license. Therefore, it is just as obvious that the state is the most powerful partner in marriage and family and that no meaning in life exists beyond its edicts.

Roger F. Gay

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