“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