When the state regulates marriage, it is not affirming love, reproductive ability, or anything else. The government recognizes certain partnerships for a lot of boring reasons that have to do with taxes.
Government involvement wasn’t required to conceive any Americans; it’s also not required to marry any of us. We have that freedom. Marriage and government recognition are different.
Our government bureaucracy issues us a lot of paper in order to document our status. Driver’s licenses, social security cards, and death certificates are issued upon qualification. No sovereign state has ever given birth to a child, yet each state provides a certificate of live birth. This piece of paper does not give a child life; it’s legal proof of citizenship and parental relationship. Similarly, a marriage certificate is legal proof of an existing relationship for the protection of assets. A marriage isn’t a piece of paper, and a piece of paper is certainly not a marriage.
Can You Marry Your Dog?
The Supreme Court has ruled 5-4 that marriage between two people of the same sex is a constitutionally guaranteed right. Opponents of the marriage ruling presented several slippery slope scenarios: “What about polygamy? What about incest? What about my dog? Can I marry my dog?” The more depraved the concocted scenario, the more resolute the dissenting side became in their opposition. They might be surprised to learn that marriage is a “personal expression” protected by the 1st Amendment.
So, in fact, someone can marry a beloved animal. They can marry ten! They can marry a wall or a ferris wheel. They can even marry themselves. While none of these personal expressions are illegal, none are legally recognized. Marriage between consenting adults who qualify for state recognition (including same-sex couples) must be recognized.
(Note for those doomsayers: No form of marriage permits a criminal act. Age of consent laws are still applicable. Laws that ban sexual activity with animals remain on the books. Bigamy, not to be confused with polygamy, continues to be unlawful.)
A Piece of Paper
While acknowledging that marriage has evolved over centuries, the Supreme Court granted gay and lesbian married couples access to a piece of paper that represents legal protections; the individuals in the committed relationship already defined their marriage without the help of government.
Currently, most state marriage contracts are limited to two non-blood relatives, which are usually more distantly related than first cousins, bound in exclusivity, as is the case in Wisconsin. Children cannot enter into a legal contract without parental consent. Animals and inanimate objects have no legal contractual rights, so they are precluded from marriage contracts. Unless a state decides to offer plural marriage contracts for polygamist couples, legally recognized polygamy is a moot point. This limits state recognition to be between two consenting non-related adults.
Lesbian and gay couples won equal access to legal recognition, not marriage itself (the expression of marriage was always available). Some dissenters genuinely think government will force churches to perform same-sex weddings or face consequences. The 1st Amendment expressly prohibits this.
The Not So Conservative Response
Prominent conservative presidential contenders looked stubbornly foolish in the aftermath of the marriage ruling, while others tempered their response with resigned calls for respect. Sen. Ted Cruz (R-TX) called for the Justices to undergo retention elections, a strategy likely to further increase the politicization of the judiciary. Former Gov. Mike Huckabee (R-AR) argued for state defiance of the federal court ruling, a failed strategy previously employed to prevent integration of public schools following the 1954 Brown v. Board of Education court decision.
Gov. Scott Walker’s (R-WI) proposal to introduce a federal constitutional amendment defining marriage as between “one man and one woman” is the most ham-handed option, violating the 1st Amendment. The 1st Amendment reads in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech [...].” Yet conservative Walker wants Congress to radically change the law in respect to religion.
In order for Walker to impose his definition of marriage on our constitution, he must ignore American Presbyterians who recognize marriages between same-sex couples. More pressingly, Walker would need to repeal the amendment he intends to protect.
Walker called the court ruling a “grave mistake”. When the growing majority of Americans support marriage equality, Walker has doubled down in opposition. Politically, this issue might bury him.
No wonder these politicians are paranoid the government is intruding on Americans’ lives! They misunderstand the role of law is a means to protect rights. The equal protections clause in the 14th Amendment guides state government behavior, not the whims of those who play gatekeeper of the societal norms.
It appears these outspoken candidates, along with the majority of Americans, have slid into the trap of believing these court rulings are about more than just a piece of a paper that protects property and familial rights. People make the marriage; government recognizes their commitment. These conservatives don’t understand either. Do you?