Here is the premise, without government benefits attached, such as tax status, survivor benefits through Social Security, etc. there would be no compelling interest for the Supreme Court or government at any level to “define marriage.” A point that I have argued many times before. In fact, when the core of your argument for “equality” revolves around equal access to government goodies, then that should be a dead giveaway as to where the real issue lies. Granted, government got involved in marriage in the first place with the best of intentions, to support and strengthen marriage as a stabilizing force within society, but as they say “the road to hell is paved with good intentions.”
Kentucky Senator and Presidential candidate Rand Paul had a lot to say on this issue in light of the recent Supreme Court ruling.
“I’ve often said I don’t want my guns or my marriage registered in Washington.” Sen. Paul said in a Time op-ed piece yesterday.
If you look at the 10th Amendment to the Bill of Rights, you see that “The powers not delegated to the United States by the Constitution” which marriage is not, “nor prohibited by it to the states” which marriage is not, “are reserved to the states respectively, or to the people.” As Rand Paul points out;
“The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington, D.C.”
Sen. Paul goes on to say, “Those who disagree with the recent Supreme Court ruling argue that the court should not overturn the will of legislative majorities.” This refers to states that have set constitutional definitions of marriage via the amendment process reflecting the will of the people. As I pointed out, there is a 10th Amendment argument to be made by those who oppose the decision. He went on to say, “Those who favor the Supreme Court ruling argue that the 14th Amendment protects rights from legislative majorities.” Here we end up with a conflict between 10th Amendment state’s rights and 14th Amendment Federal overrides. The 14th Amendment clearly applies in other enumerated rights within the Bill of Rights, like the 1st or 2nd Amendments, but now the Supreme Court has applied it to a perceived “right” not specified in the Constitution or its amendments. Are you starting to see the complexity of this issue yet? Governmental involvement breeds complexity and conflicting interests.
The 9th Amendment is the catch-all for non-enumerated rights, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It specifically states that any rights that may not have been enumerated are “retained by the people,” not the state or the federal government. Marriage would be just such a right.
Sen. Paul added, “I acknowledge the right to contract in all economic and personal spheres, but that doesn’t mean there isn’t a danger that a government that involves itself in every nook and cranny of our lives won’t now enforce definitions that conflict with sincerely felt religious convictions of others.” This of course speaks directly to the 1st Amendment freedom of religion, with which this Supreme Court decision also creates a potentially conflict.
“Some have argued that the Supreme Court’s ruling will now involve the police power of the state in churches, church schools, church hospitals.
This may well become the next step, and I for one will stand ready to resist any intrusion of government into the religious sphere.” Sen. Paul wrote in his op-ed.
He also quoted from Justice Clarence Thomas’ dissent,
“In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” [emphasis added]
Here we are again, at the core of the issue being governmental benefits. The infrastructure is already in place to recognize civil unions among all who would wish to contract a committed relationship, regardless of gender, orientation, race or religion. The only real obstacles are the IRS and Social Security benefits, both of which have been in need of radical reform for decades. Flat Tax? Fair Tax? Privatize Social Security? Piece of cake, right?
At this point, the once well-intentioned benefits afforded by the government have become a destructive force, causing conflict and chipping away at the foundation of the government itself. As I wrote in Pandora’s Box: SCOTUS Same-Sex Marriage Ruling – What’s Next? This decision paves the way for future arguments on both enumerated rights as applied through the 14th Amendment as well as many other perceived rights. Further conflict and harm seem inevitable.
As Rand Paul said, “Perhaps it is time to be more careful what we ask government to do, and where we allow it to become part of our lives.”
Sen. Rand Paul’s Full Op-Ed Article can be read HERE.