Marriage, Homosexuality, and Amendment 43

What is the government’s legitimate role in marriage? What distinctions may the government properly draw between unions of heterosexual and homosexual couples, if any?

Ryan Puzycki sent in the following comment on February 13 regarding my previous post:

I enjoyed your post on “A ‘Religious Foundation’ for Law,” but was intrigued by your conclusion that you’re “not convinced that Amendment 43 violates the establishment clause, as there may be some plausible nonreligious arguments in favor of it.” I have attempted, since becoming seriously interested in the issue of gay marriage, to find a secular reason against it. While other Objectivists have raised the possibility that there might be valid arguments against it, none have indicated what those arguments may be. To date, I still have not heard a valid secular argument. From this viewpoint, I do not think there is any way to reconcile Amendment 43.

If marriage is only a religious institution, then the state should have no business involving itself in any aspect of it whatsoever. Those who are married should practice it as a sacred rite, such as the Eucharist or holy orders, outside the authority of the state in the privacy of their homes and churches. The establishment clause would prohibit state interference in the matter, and it would be left to the churches, rightly, to decide whom they are willing to marry. The secular state would still have an obligation to protect those who are unwilling or too young from marriage and to protect the right of the consenting and legally-aged to practice the rite, but otherwise it should confer no special rights, privileges, or benefits.

In upholding the wall of separation, the State would Catholics to marry only one man to one woman, Unitarians to marry gays, and even Mormons to marry one man to several women — and it would prevent Muslims from marrying a man to a child. The state would have no business sanctioning marriage, as a religious institution, nor offering a secular, civil equivalent. Indeed, there could be no to secular equivalent to a holy union made inviolate by God. In the eyes of the secular state, marriage would be nothing more than a religious observance — but it would still have the obligation to protect those who wish to practice it. Of course, conversely, religions would have no right nor incentive to ask the state to interfere in religious affairs.

However, marriage is not only a religious institution. Indeed, in the secular realm, marriage is a contract between consenting adults. The marriage contract has a secular, legal, and necessary basis for the protection of, for instance, the transfer of property between spouses upon death and also the legal adoption of a spouse’s children. This is not an exhaustive list, but a full list would, of course, exclude tax incentives and other state conferred “benefits.” The state’s role is merely to enforce that the contract is between consenting adults by protecting the rights of either party if the terms of the contract are breached. And, as with other contracts, the state has no business delimiting the gender of the parties involved (or, even, how many parties are involved). Amendment 43, therefore, nullifies equal protection before the law (14th Amendment) by delimiting who is allowed to contract and who is not.

I think the unconstitutionality of this is made more clear by considering what Amendment 43 would mean if it were translated to other contracts. The state rightly does not dictate the gender or sexual orientation of parties contracting for mortgages, car sales, employment, or transfers of property. In that vein, Amendment 43’s potential allowance for “domestic partnerships” is entirely irrelevant. In the same way that the state cannot provide “separate but equal” services for blacks and whites, it is equally unconstitutional to mandate heterosexual loans, homosexual mortgages, and certainly separate classifications for marriages. On the wedding train, what is the constitutional basis for reserving a “civil union” car for Plessy and a “marriage” car for Ferguson? The concepts of “domestic partnership” and “civil union” denote a second-class status to gay marriages. “Separate” is inherently unequal.

Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional. But, even if the Amendment were not religiously inspired, there would be no constitutional or secular basis for a state mandate that discriminates based on sexual orientation. The 14th Amendment is a reminder that the government’s primary function is to protect rights equally for all individuals — not to confer to or deny them any. Insofar as the government has an obligation to enforce contracts, it cannot do so if it legally prohibits individuals from contracting. The state has a duty to recognize and protect the right of any and all adults to consent to a legal union. Therefore, if the state is to refer to such a union as a “marriage,” it should recognize only one marriage contract for all consenting adults.

I’d be interested to know your thoughts in response to this, and in light of your post.

Best regards,

Ryan Puzycki

I appreciate the subtle points that Puzycki brings up. I largely agree with Puzycki — except that I’m still not convinced that Amendment 43 should be overturned by the courts.

I emphatically add that I did not support Amendment 43. I voted against it. It was not one of my major issues of the year, though, for I was busy opposing increased wage controls (which passed) and supporting the partial re-legalization marijuana (which failed). I did write the following about an alternative measure (which also failed): “Referendum I would create domestic partnerships. It makes sense to assure legal standing for gay couples.”

I agreed with Diana Hsieh’s take on the two measures:

Amendment 43 – Marriage… My vote: No! This amendment is the darling of the Religious Right. … It must be defeated.

Referendum I – Domestic Partnerships … My vote: Yes. Voting “yes” on this referendum is perhaps the most clear way of rejecting Christian government in Colorado this election. I do worry that permitting gay marriage will usher in major subjectivism in marriage law, e.g. marry whomever you please, including two women, three men, and a goat. However, that’s not a problem with gay marriage (or domestic partnerships) per se, but rather with people’s failure to understand the proper grounds of marriage. Moreover, I regard that subjectivism as far less evil — and far less likely — than a return to a seriously religious conception of marriage. On that view, Paul and I aren’t really married since we’re not producing more children for God and community. For an example of that view, see this OpinionJournal op-ed by a Methodist Pastor. Oh, and don’t miss Augustine’s fantastically revolting views on marriage. Moreover, consider the main argument in our Colorado “Blue Book” against the referendum:

Domestic partnerships diminish the significance of marriage for society by reducing marriage to a list of benefits and responsibilities. The benefits given to married couples are intended to support child rearing by one man and one woman. The state has an interest in restricting recognition and legal protection to these married couples to provide stability for the individuals, their families, and the broader community.

In other words, marriage is a mysterious gift from God, not to be understood in words by man. Also, the sole justification for marriage is the demands of raising proper children in a stable family and community. People who choose not to procreate have no claim to the goods of marriage. In general, marriage is not two people committing to integrating their lives according to their own values. That’s obviously too selfish and too individualistic.

Unfortunately, this “domestic partnership” measure will impose more government-mandated entitlements (e.g. health care and worker’s compensation) upon businesses, but that’s a problem with the government-mandated entitlements, not domestic partnership per se.

So I’d strongly recommend voting in favor of this measure.

Last year, I also wrote an article titled, “A Defense of Marriage for Couples.” There is a “contractual basis of marriage,” I argued, and it is among the government’s legitimate functions to facilitate and uphold contracts. However, I saw no important difference between “gay marriage” and “domestic partnership;” I wrote that “gay marriage (or ‘domestic partnership’) rightly puts homosexual couples on equal footing with heterosexual couples…”

Puzycki writes, “Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional.” I disagree with this argument.

Take, for example, the abolition of slavery. Obviously that was religiously motivated. There may have been some abolitionists who were not Christians and who did not offer Christian reasons for abolishing slavery, but I am not able to name any. Obviously, we do not wish to re-institute slavery because its abolition was religiously motivated.

The important point, as I argued in my recent post, is whether the reasons for a law are separable from religion: “[S]ome laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason.”

The protection of individual rights, regardless of race, does not fundamentally depend upon any religious doctrine. It is entirely separable from religion. For example, Ayn Rand eloquently argued against racism on purely secular grounds, and she argued that rights arise from man’s nature as a reasoning being, which has nothing to do with race.

The spending of tax dollars to teach creationism is an example of a policy that is not separable from religion. Creationism promotes a distinctly religious view that a supernatural being or force created the world and life.

I’m still not convinced that Amendment 43, whatever its faults and problems, violates the establishment clause or the equal-protection clause. I wrote:

[T]here may be some plausible non-religious arguments in favor of it. If it’s true that Amendment 43 allows for “domestic partnerships” — an equivalent of the marriage contract for gay couples — then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.

Note that I did not claim that the non-religious arguments must be valid. I claimed merely that they must be “plausible.” (By the way, I know of no Objectivist who has claimed to make a valid argument against gay marriage, but I’d be interested in learning about such claims if they exist.)

I think that I can offer at least one such plausible argument: “The difference between heterosexual marriage and homosexual domestic partnership is that only heterosexual marriage can result in one partner impregnating another. Obviously female domestic partners can become pregnant, but the sperm necessarily comes from a party external to the partnership. Male partners can adopt children but not give birth themselves. Thus, while the domestic partnership contract is substantially similar to the marriage contract, it must accommodate the real, biologically-based differences between heterosexual and homosexual couples.”

I don’t think that argument ultimately holds up, because heterosexual, married couples can also adopt children and use artificial insemination, and the marriage contract seems to accommodate such situations.

Here is another argument that is less plausible (because based on philosophical nominalism) but still not religious: “By common understanding, practically everyone sees ‘marriage’ as the union of a man and a woman. Thus, we need some other name to describe unions of homosexual couples.”

I’m convinced that Amendment 43 was unnecessary, that it doesn’t belong in the state’s Constitution, and that it was largely motivated by bigotry rooted in religious dogma. Yet I am still not persuaded that Amendment 43 should be overturned by the courts based on the establishment or equal-protection clause. (I remain open to debate on this matter, and the argument about equal protection strikes me as more forceful.)

However, Puzycki’s main point seems to be that homosexual couples deserve comparable protection of contract law, and on this point I quite agree.

February 21 Update: Readers are welcome to read the further discussion on this topic.