Marriage, Law, and Some Practical Reasoning

Oliver Wendall Holmes“There is a tendency to think of judges as if they were independent mouthpieces of the infinite, and not simply directors of a force that comes from the source that gives them their authority. I think our court has fallen into the error at times and it is that, that I have aimed at when I have said that the Common Law is not a brooding omnipresence in the sky and that the U.S. is not subject to some mystic overlay that it is bound to obey.” -Oliver Wendell Holmes

Perhaps no issue has been more misrepresented by any of the worldviews or “paradigms” than the gay marriage issue. Most arguments assume fallacious premises when using such terms as “equal rights” or “civil rights”. Marriage does not exist as a right and nor are the rules that apply applicable to same-sex couples. The fight for marriage “equality” does not seem to be only for the privileges afforded to married couples but for a much-needed stamp of approval by government on the rest of society.

Oliver Wendell Holmes once said that the life of the law is not logic but experience and “the word ‘right’ is the most deceptive pitfalls” and “a constant solicitation of fallacy”. There is a reason why benefits are provided to married heterosexual couples and why this union is advantageous for the state. This is in lieu of separate societal differences based on a subjective sense of morality (ideology) or rule of law. State sponsored marriage is beneficial to the state because the potential offspring of a married couple would be better cared for by a biological mother and father than the state, as well as protect the invested time of one the parents (most often the mother). In this sense, marriage is actually more of a restriction of rights rather than a conference thereof. Generally, this meant that the women/mother would raise the child and the man/father would work to support the family. Even in our more liberated age most couples prefer this arrangement.

The idea of alimony was created to protect the woman’s investment in her relationship and discourage the husband from running out on his family. A woman voluntarily gives up her career and accumulation of human capital in order to better serve her family, therefore allowing her husband to maximize his productive capabilities; alimony protects her investment. In some states, if a spouse were to buy a home it would automatically belong to both regardless of whose name is on the title. These “rules of the game” and restrictions were not promulgated by a specific worldview, rather human experience. Marriage existed before the state and was a large part of society before the law, specifically for the reasons outlined previously. The state, recognizing that it has invested interest in the outcomes of these unions allowed benefits (so long as they collect taxes) and protections to couples for their potential to have children. Marriage is at its core a contract protecting the biological, practical and chosen investment of the mother to forego a career to allow her husband to maximize his capital potential in the marketplace within a “traditional” family unit.

Comparatively, In a private relationship people can come and go as they please and sign any contracts they want in regards to mutual investments. For instance, most business’ or individuals that pool resources in order to maximize investment opportunities don’t need to be married to protect either parties financial investment (private contracts). Durable power of attorney and living wills give one partner the ability to make choices for the other in cases of medical incapacitation. The “rules” that pertain to married heterosexual unions are only bestowed tax benefits in the sense that they get to keep more of their own money for procreative purposes, yet most of the rules restrict for the very same reasons (as the purpose of all laws are to restrict in one way or another).

The ratiocination of why marriage has always been defined as one man and one woman was through a posteriori observation by man throughout many millennia in history. Sex between homosexual couples is a behavior that serves only one purpose: pleasure. Sex between heterosexual couples is more than a behavior but a biological process producing human life. The child is not self sufficient for many years and is dependent on the specific roles that both sexes play in his development (optimal development). You can no more apply the rules of marriage to same-sex couples as you can apply the rules of chess to checkers. The state simply has no vested interest in behavior or attraction whatsoever.

Moreover, the 14th Amendment does not apply to behavior it applies to people. And the very reason for many laws in the first place is to RESTRICT behavior. Same-sex couples have every right to be together and petition their government for redress of grievances and try to obtain the same privileges (as an anti-statist I’m for tax benefits for everyone for any reason). Our constitutional republican system encourages it through federalism in order to maximize liberty. I do not think any one particular worldview is disputing that. However, in California where the same privileges are granted to same-sex couples the crusade to change the meaning of the word through judicial review remains (click here for more on prop 8), therein lies the problem: society/people define words not judges, government officials or the intelligentsia. In our Republican society the law is not created solely to forbid, facilitate or sanctify behavior in which there is no vested state interest.

The government and people of differing worldviews/ideologies have no business meddling with the lifestyles of same-sex couples. In the same respect, homosexuals cannot force the approval of their lifestyle by everyone in society through an abstract change of a definition the government has no business in changing. Moreover, you cannot say that you have a right to your own morals and values then actively try and seek through government intervention the approbation of those with differing morals and values. The idea that these verities are only seen through the prism of a worldview paradigm suggests only an a priori account of the rule of law and human knowledge, when in the absence of demagoguery, ideology or sophistry the construct to maximize liberty and diversity exists within our Constitutional framework.


– Will Ricciardella




Filed under Conservatism, Jurisprudence, Political Philosophy

5 responses to “Marriage, Law, and Some Practical Reasoning

  1. phadde2

    I personally opine that same-sex marriage should not be illegal; as in recent times it has been used a tools to divide more than anything. Also one must have the liberty to have the right to will their estate or insurance benefits to any so long as the agreement has been made prior. One should also be allowed to have any of their choosing at their bedside even they lie incapacitated. Even if the majority of people and society agree upon a lifestyle or terminology to subjugate it to a smaller group of the citizenry is still tyranny as highlighted by James Madison in Federalist 51:

    “Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable,”

    The above of course envisions a nation of states where communities of like souls can coexist and create laws that benefit their individual communities whether that be marriage laws, or any. However, it must be acknowledge that this idea has been adjusted a bit in the aftermath of the civil war of this nation as the nation whether one likes it or not became “is” not “are”. It is also certainly the job of the Judiciary to be able to rule as to what is lawful and therefore what is constitutional, as the above is a defense of the constitution to protect that different classes of citizens, even the minority, any laws that have been legislated by the mob that do not follow the supreme law of the land must be void. As in a republic the rule of law… rules, not the mob.

    There are many groups people in the Union that I certainly do not agree with; however, I do not seek to eliminate their existence from the nation, I do ask, which I think you touch upon above, that they respect my lifestyle as well.:

    ‘ In the same respect, homosexuals cannot force the approval of their lifestyle by everyone in society through an abstract change of a definition the government has no business in changing’

    I would also acknowledge that where same-sex marriage gets a little fuzzy is when religious institutes condone and practice it. I would agree that the 14th amendment does not make an action a civil right per say, but the right of sacrament within the realms of a non violent religious institute is clearly protected under the 1st amendment of this great nation. This clearly is not a black and white issue and having the federal government deem what can be legislated in the 50 states is a debate worth having but any ceremony within the realms of a religious institute is protected, and the role of the states and the role of the union must be clearly defined, and with some regret those roles are defined in the courts, as defined by the constitution and stare decisis.


  2. lgwestman

    I don’t seen any principled reason to think that just because this issue has caused division that said division should result in capitulation to the left’s desire to redefine marriage. Another element missing in the discussion in our political milieu, is what exactly IS marriage. We cannot talk about marriage without first identifying what it is, and when we identify what it is why the state should have an interest in it.

    With regard to the will and estate arguments, I think we could look at changing policy around those issues specifically, instead of changing the definition of marriage.

    I think federalism is the best solution. The body politic of some states have defined marriage traditionally, some of taken on a different definition. Living in one state vs. the other has trade offs. That is, in my view, the best way to deal with the situation at hand.


  3. phadde2

    I concur that I believe federalism is the best solution; however, both being fans of Hamilton I would say a great quality of Hamiltonians is being pragmatic and moving towards federalism if it can be down will be a slow process.

    Now, I can understand why one would think my approach would be capitulation, but I simply believe it’s caused a division in the populace that isn’t needed. Allowing the law to be more open in my mind doesn’t change or redefine the role of marriage to myself, but the way I see it in a practical matter it’s simply populist politics. I have often been okay with allowing the laws to change just to reflect wills and estates, but I will concede that the left wants the word; to in a sense control the language. The left will continue to sway the hearts and minds of the citizenry claiming to be the defenders of humanity; using such measures to vilify conservatism. All the while our fiscal policies, energy policies, education policies, all continue to erode to progressivism.


    • lgwestman

      Yes, pragmatism is important, and I think recognizing federalism is pragmatic enough. The left does not want to negotiate. They want to destroy their opponents.

      The division is caused by the left, since this is their political tactic – divide groups against one another and then pit them against each other as mortal enemies.

      In the case of marriage, allowing the law to be more “open” would most certainly require a redefining of marriage.

      I agree that the left has gained control and has eroded our fiscal, energy, and education policies…I see no reason to allow them to further erode policy and law when it comes to the family.


  4. phadde2

    I will certainly concur that other side is unwilling to negotiate; but my suggestions are not a surrender of principle or an attempt to negotiate; merely, it’s my suggestion to “retreat to Manhattan”, and thwart the tactic of populist politics that progressives wish to exhibit.

    However; my allegiance is certainly to that of our Union and the constitution of our nation which promotes principles of civil society which are life, liberty, and the general welfare as exhibited by John Locke with his, “Letter Concerning Toleration”.

    I take careful measure to protect these principles, and in regards to redefining marriage in regards to the laws of our great I shall view them not necessarily with my biases of traditional America, but with the biases of what is protected under the constitution of the United States of America, Federalism of course being one of those principal parts.

    Now I agree that as marriage is not defined by the constitution, and certainly not by the 14th amendment; however, “free exercise” of religion is and it certainly doesn’t give any other requirement on said religions’ origins or establishments; therefore, when the United Church of Christ sues the state of North Carolina for violating their own sacraments it is the minority of people not the state that is seeking to redefine the concept of marriage through the rights recognized in the Bill of Rights. Madison made known in his defense of the Constitution to the people of New York that the rights of the minority must be protected, and because of this It must be examined through the unbiased examination of the law.

    As constitutionalist I must ask myself; how best can protect the principles of liberty; governed by the rule of law that is the constitution of the United States. It’s certainly something that causes me more time shaking my head in constant thought than anything.

    Perhaps you have a better plan of action ?


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