Marriage is a civil contract recognized by the state, not a right.
By Nathan Inks on October 12, 2009 1:20 am / 24 comments
In Hilary Farrell’s column, “Marriage laws do not include everyone,” there were several points I disagreed with.
One of the biggest misconceptions about the marriage debate is that “marriage is a right.” To analyze this statement, one must first understand the concept of marriage.
Marriage, in the sense of a ceremony to show love and dedication to someone you love, is a right. Specifically, this would fall under the right of freedom of speech. Every American is free to express his or her love for any person, and the government has absolutely no right to say otherwise.
However, marriage in the sense of a civil contract between two consenting adults is not a right. The civil contract of marriage is a privilege, with guidelines set down on how one can enter into such a contract.
Nowhere in the U.S. or Michigan constitutions will you find a clause that describes the right to enter into the civil contract marriage.
At any moment, the Michigan legislature could abolish the civil contract of marriage. Would this mean that it would be illegal to get married? No. It would simply mean that the state would no longer be recognizing marriage as a civil contract.
Homosexual individuals are just as entitled to enter into this civil contract as heterosexual individuals. They must, however, abide by the rules of the contract. The Michigan legislature has specifically said that homosexual marriage is an “invalid contract;” however, this is not denying homosexual individuals the right to enter into a marriage.
Farrell says in her column, “The limited rights and protections [of civil unions] do not extend past state lines.”
Many people feel that this is something that the federal government needs to remedy, but why should the federal government be meddling with the issue of marriage? The federal government has always left the definition marriage up to the states to decide for themselves.
The constitution gives no indication that the federal government should define marriage, giving them no reason to step in. Under federalism, the right to define marriage is left to the states, making marriage a states’ rights issue.
If states can allow gay marriage, it is just as much their right to not allow gay marriage.
However, Farrell does raise some good points: homosexual individuals should be allowed to visit dying significant others in the hospital. They should be able to adopt children. Homosexual couples should be able to share a medical plan.
However, the addition of a partner, whether homosexual or heterosexual, to an employee’s healthcare plan should be a choice that is left up to the employer.
These issues can be remedied without brining marriage into the picture.
Ultimately, if the state of Michigan does not want to change its definition of marriage, it has every right to keep marriage as defined as one man and one woman.
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24 Comments
I am not gay myself so I am probably not aware of all the variables involved but I do try to be aware of most because it is the best way to understand & debate with one another in a civil manner. That said…I honestly don’t believe that the term marriage is the biggest issue here. One, a marriage is a religious ceremony. I don’t see how if as a nation we’re not supposed to have any set religion or discriminate on any person’s religion that we’re going to deny something to a group of people based on religion. It’s sad that I am not a religious person but I could enter into a marriage but others can be denied for basically not sharing the same ideals… That aspect aside, there are a lot of rights that individuals who marry are allowed – the very rights you’re mentioning at the end of your article – that gay people should also be allowed to have. I think there are many different directions this debate could go but honestly…I think the best thing to do would be to do away with “marriages” in the governmental sense, make it a “civil union” for all, and let those who want the ceremony with their religious affiliation get it and those who don’t want the added ceremony don’t have to get it. In that way, everyone who loves another individual and wants to commit their lives to one another are allowed to have a union and the added benefits that are associated without discriminating against who can and cannot enter into such a contract.
So what you are saying is that it is ok for gay people to get married, just not to the person they want. Are you proposing that these people be celibate and enter into contracts that represent a false commitment to their spouse? It is a broken system, and it is not your nor my place to tell homosexual Americans that they do not have a right to marry the person they love.
This is a very good article and uses rational thought.
To “You’re Joking Right” — try reading the article again and listen to what is being said. Marriage is NOT A RIGHT in the eyes of the Constitution.
Nathan – you do a very good job separating out the issues and explaining really what people are trying to do … they want the same privelage as others, but want the “contract terms” changed so they can join.
First, marriage is a civil right as has been declared in Loving v. Virginia, 1967.
Second, civil marriage equality is written in the US Constitution, 14th amendment: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”
And the judicial test of this law is astonishingly simple:
Is a civil marriage contract a law? Yes.
Does that law irrationally exclude persons who are otherwise similarly situated as those that it includes? Yes.
Are the excluded persons harmed? Yes.
The law is then unconstitutional. The Iowa Supreme Court understood this radically simple review to the tune of a unanimous 12-0 decision. A court that understands its role of defending the sanctity of the contract between each person and his or her government: the contract of a Constitution guaranteeing the equal protection of the laws.
And finally, this is not a states’ rights issue. This is a human rights issue. Rights that should be afforded to every living, breathing gay and lesbian in every county, in every state, in the United States of America. The idea that gay and lesbian people can get married in one state – and not the other, has no rational basis, much like Mr. Inks comments on this issue.
Not all rights are derived from legislation or the Constitution. As any first year law student will tell you, rights can also be derived from case law.
In Loving V Virginia (1967) The Supreme Court stated that “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law”.
Whilst this case was applicable to inter-racial marriages, an analogy can certainly be drawn to same-sex marriage. Replace the words “racial classifications” with “classifications of sexual orientation” and read it again.
So I would suggest your opening premise, on which you build your subsequent argument, is invalid and inaccurate to start with. Since this Supreme Court decision has never been over ruled, the position is clear….marriage is a right, one which is currently denied to a significant minority due to their sexual orientation.
Nathan, Nathan, Nathan—really now. You might want to stop writing and start studying to get your facts right, as that what your parents are paying for. Thanks Steve for his excellent explanation of nathans flawed thesis. But gee whiz, Nate…(can i call you nate?)…thanks a heap for feeling it’s OK for homosexual individuals to visit their partners in hospitals—that’s mighty white of you.
To those of you quoting law and apparently trying to become (or are) lawyers, please explain to me how this is racial or sexist discrimination when ALL MEN and WOMEN have the exact same rights?
Men cannot marry men and women cannot marry women (in some states)…where is the case law on that? Where in case law does it state you should be able to marry whomever you love? Then should Polagmy be legal? What about same sex incest, since procreation is no longer an issue?
I can’t wait until we see laws built around discrimination based on someone’s FEELINGS! Lawyers, always looking for someone’s dime!
Not joking,
Clearly you don’t understand that by denying marriage (a civil right by case law) to homosexuals you deny them their fourteenth amendment rights. I also assume that you believe the original case, Loving v. Virginia, set forth a right based only on “feelings.” Maybe you should do some reading…
Also, using a slippery slope argument does not invalidate the original claim.
Oh, and I’m by no means a lawyer or studying to become one.
Not Joking, the test is rather simple. In order to get married, you must disclose your sex to the state, and based on your sex the state tells you who you can or can’t marry.
The law is not applied equally. Men do not have the same marriage options as women. That’s sex discrimination.
Nathan, it’s nice to see that you don’t support DOMA, federal meddling in state’s rights.
Unfortunately, your understanding of the U.S. Constitution is fundamentally flawed. The Constitution does not grant rights to the people. Rather the Constitution defines what we the people have granted to the government. The bill of rights, for example, says what government can not do, not what the people can do.
Your confusion is quite common and is exactly why the founding fathers included the ninth amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Your question should be where in the Constitution do we the people grant the government the ability to regulate marriage.
In 1966, black people and white people had the EXACT same rights, relating to civil marriage. Black people could marry black people and white people could marry white people. If black person wanted to marry a white person, they could just marry a black person instead – and follow the rules. See? No problem, whatsoever.
Regarding case law relating to same-gender marriage, it is being established, right now, as our justice system works to level this gross inequity present today that harms same-gender couples. As was the case in 1967, relating to inter-racial marriage.
Regarding polygamy, incest, man-dog marriages… None of these slippery slope arguments are relevant whatsoever to the issue that is being discussed: same-gender marriage. These other issues will be decided on their own merits. Burying your head in the sand to avoid working through the legal challenges on one issue (same-gender marriage) because of what might or might not happen with a separate, second, unrelated issue does not relieve one from addressing the primary issue at hand: same-gender marriage.
Gay and lesbian people do procreate. By natural means. Many gay and lesbian people from prior mixed orientation marriages have children. They get divorced and seek more appropriate arrangements with partners of the same gender. Are you suggesting that all people be disallowed second marriages? If opposite sex individuals with children can enter into second marriages, why can’t same sex couples with children also do so? And what about opposite-sex couples who have no children? Should they have their marriages revoked?
Equal Justice Under Law. Engraved in stone on the US Supreme court. That is what same-gender couples are fighting for – and nothing else.
On a side point from what Bryan mentioned…it was only in 2000 or 2001 (can’t remember exactly just that it was sometime that school year) that Alabama revoked a law that was still on the books stating that blacks and whites could not marry. It’s sad how long it has taken and is *still* taking to give equal rights to *everyone* and not just the in-group/majority.
“Marriage is a civil contract recognized by the state, not a right.”
And yet the United States Supreme Court decided in a unanimous decision in Loving v. Virginia (1967) that marriage IS a right protected by the Equal Protection clause of the 14th Amendment
The court even stated in the joint opinion: “Marriage is one of the ‘basic civil rights of man’”.
Eric,
You’re the first to actually make a somewhat valid argument to me on that point, however, I could also say we all have the exact same right to marry the opposite sex … no longer sex discrimination.
Also to that same point – then when are women going to fight for it to be legal for them to walk in public without shirts on? Is that sex discrimination?
To say my ‘slippery slope’ argument does not fly when it comes to Polgamy and to homosexual incestual relationships is a very poor argument. As our culture changes and things become acceptable that were not previously, topics like this will come up. If you allow people to commit to someone they love, why not these types of loving relationships? Are we now going to discrimininate and determine who can love who?
I don’t care if they allow same-sex marriages, I’m just playing devil’s advocate. My point being, you really need to understand what you’re getting yourself into with this argument.
My first post was only to point out very simply that Nathan’s opening gambit, that marriage was not a right, was flawed, as supported by a number of other posts who also quote Loving v Virginia. That was the only point I was making in that post…he was wrong that marriage is not considered a right (it is also covered in the UN Declaration of Human Rights)
What flows from that point, if you accept that marriage is a right, is “who should be allowed to exercise that right”. We restrict rights and freedoms in many ways e.g. an age of consent in order to exercise the “right” of marriage, or to enter into a legally binding contract, or the fact that currently in many states the restriction is, that the right to marry is restricted to two consenting non-related adults of the opposite sex.
The logical flow of the argument then hits choppier waters, as peoples opinions as to what those proper restrictions should be differ, based upon your point of view. Some people believe the right to marry should be reserved for people of the opposite sex, some believe that restriction denies a significant number of people who identify as homosexual, a basic human right which is granted to heterosexuals, with no genuine public interest or moral justification for doing so.
This is why it is in the interests of many opponents of same sex marriage to insist that homosexuality is a choice, and organisations such as Exodus exist, to “demonstrate” that people can change from homosexual to heterosexual. If its a “lifestyle” choice and not a fundemnetal part of your makeup as a human being, it is easier to deny or restrict the right…because if you want the right to marry, you have got it…just choose not to be homosexual and marry a person of the opposite sex.
For the slightly more enlightened, who understand even a small amount about human sexuality, they believe a significant minority are being denied the same rights as others, based upon part of their being that they can not change. Even if the conservative estimates are correct, that the homosexual population is fairly static at approx 2%, that is still approx 134 million human beings worldwide who are discriminated against in many countries, and not given the equal playing field afforded to their heterosexual brothers and sisters.
Something worth thinking about over a beer !
Steve,
I agree with your post … I like playing devil’s advocate, because, as you state above, its all based on how you want to interpret the rules of the game.
As our country continues to evolve and we become more diverse, more and more ideas will be accepted into our culture … just as we’ve granted human rights to all American’s based on thier ethnicity and skin color, we’ll move toward that for classifications that become more prevelant (sexuality).
Its a very interesting debate and I always like to play devil’s advocate when people start to speak with emotion and not use logical arguments – I believe this will never fully satisfy EVERYONE, and will always be a hot topic … just like abortion!
Take Care,
“Just like abortion” … I will never understand why marriage equality and abortion are always thrown into the same the basket, in terms of acceptance of an issue. The country has been 50-50-ish on abortion for decades whereas same-sex marriage has been gaining rapid acceptance, though not at 50% (yet). In 30, 40, 50 years… people will look back and judge those before them: “what were they thinking trying to rape a vulnerable minority of their rights?” History will not be kind to these people… nor should it.
To Not Joking: For me, the difference in allow gay people the right to marry versus those who want polygamy or incestuous relationships is that there is scientific evidence showing size differences in specific brain areas between those who are gay and those who are not. Therefore, it is not a choice (granted there may be some who are doing this to gain attention but that aspect aside…). Polygamy is a choice. Incest is a choice (as long as it is not forced on another). Even for pedophiles it’s a choice. Whether it is polygamy, incest, or pedophile, it is a choice or it may even be worded differently in that the non-societal accepted relationship has previously be reinforced in their life history by some manner. Basically someone is not born a polygamist, a person who engages in incest, or a pedophile. So there really isn’t a slippery slope in allowing gay people the same rights as straight people…
Even if homosexuality is a choice… religion is a choice. People elect to remain Jewish or Christian, but we do not remove/prevent from these groups the right to enter into a civil marriage contract, as a matter of secular law.
Incest, pedophilia, and to some extent polygamist marriages, all involve elements of harm among parties. A marriage between two consenting adults of age, regardless of gender, does not harm the parties involved. It is therefore irrational to compare same-gender marriage to any of these other harmful arrangements, or worse, using these arrangements as a basis of comparison to bar same-gender couples from entering into civil contract with one another.
Pam,
Are you saying a Polgamyst has a choice in loving multiple people? Or that someone who happens to love another family member (regardless of how sick it sounds) has a choice? What if that Polgamyst was gay? Or if the incestual relationship was gay? Then do they have a choice?
I never said being gay was a choice! I agree, it is not, and am okay with same sex marriages.
Brian, you say these all hurt someone else… how? Pedophelia is wrong and should remain illegal — I have never used this in any of my arguments by the way!
As I was stating before, if an incestual couple does not or cannot procreate, does it make it okay? The same goes for polgamy … how does it hurt someone else if all parties are consenting AND OF LEGAL AGE?????
Again, not advocating anything, just posing the questions.
Polygamy and Incest are pointless obvious red herrings in the debate of Gay Marriage.
Have a problem? Prove that incest is harmful to children and then make it illegal for children to be born out of incestuous relationships.
And as for polygamy, pass laws that make sure that children of polygamist relationships have equal support from both parents.
I thought incest was common practice in many countries where people could marry their cousins? It’s still incest, isn’t it? Reportedly, risk of some genetic disorders is higher in incestual couples. Perhaps, that’s what they mean when they say incest is harmful to children. I can’t say for myself though, all my relatives are highly unattractive to me
The author here is correct that marriage in and of itself is not a right protected by the Constitution. However, marriage includes many legal rights, and as such falls under the protection of the Fourteenth Amendment of the United States Constitution.
“No State shall…deny to any person within its jurisdiction the equal protection of the laws.”
Since marriage grants legal rights to couples, denying marriage to gay couples denies those couples equal protection under the law. A state could do away with marriage entirely–as in, not view a couple any differently than any other two people (including for taxes, child adoption, etc). However, if marriage exists for some, it must exist for all.
On a different note, I assume that since the author of this article thinks that the federal government shouldn’t play any role in marriage, he would support the repeal of the federal Defense of Marriage Act?
How can one gat out of the civil contract absolutely without entering another contract?????
Didn’t they decide that marriage was a right when the Virginia law banning interracial marriage was challenged? If all the issues connected with the privilege of marriage have to be settled separately, isn’t it going to multiply red tape? Wouldn’t it be easier to let people get married outside of church and save time and other resources? Does it mean that it’s ok for an employer to put a man’s female partner on his medical plan, but to deny another man’s male partner the very same option? Is it the male partner’s fault that he has the XY instead of XX chromosomes?