Marriage

There has been a good deal of discussion about gay marriage in the news over the last few weeks, but two things seem to have omitted from the conversation.  The first is: a serious discussion on what is a marriage?  And the second, following from the first, is: given what marriage is, who, that is, which governmental body, decides who can and who cannot engage in such an act?

As one might suspect, there has been a good deal of posturing and opining by figures on all sides of the argument about marriage and, in particular, the rights of people to marry.  This misses the mark.  In fact, the question of marriage can be reduced to this: is marriage a right or is marriage a legal agreement – specifically, a contract?  If it is a right, that would suggest that marriage exists apart from government, that it is provided to us by God, or if you prefer, by nature.  But, it difficult to argue that it is a right when we consider that a marriage, under any circumstances, requires a whole host of things to be valid: both parties need to be adults, both parties need to be competent (the insane can’t get married), both parties have to be unencumbered – that is, free to enter into the marriage, and in some jurisdictions both parties have to be free of certain diseases. 

There is little reason to believe that anyone would suggest that any activity so circumscribed could be labeled a ‘right.’  The Bible, on the other hand, strongly suggests that marriage is a contract – the word covenant is used repeatedly in reference to marriage, and while in those cases a covenant is an agreement, a contract, between man and God, it is nonetheless a contract.  But the media insists that denying the gay community the “right to marry” is a violation of their civil rights.  Simply put, if marriage is a right, then government has only a very narrow ability to control my marrying.  But, of course, governments – all governments – have throughout history exercised a wide range of controls on marriage.  Further, it is difficult to imagine a ‘right’ that requires both the exercising of the right and the consent of two people.

It would seem, in fact, that to define marriage of any type as a ‘right’ is simply false.  But, it would be necessary to do so – define marriage as a right rather than a contract – if you wish to label denial of marriage to the gay community as a violation of civil rights.

On the other hand, if marriage is a contract, not a right, we need ask who has jurisdiction in the law?  Strictly speaking, commercial contracts and marriage contracts are not the same thing, but it may help in clarifying the problem if we begin with commercial contracts.

In the United States there is a federal code that addresses the bulk of all contracts: the Uniform Commercial Code (UCC).  It was drafted to bring commonality to the commercial codes across the various states and territories of the US.  Each state is free to adopt sections of the UCC, as well as to amend elements of it as they see fit.  This is what state legislatures do: they write and amend law. 

It is true that the marriage contract has always – for 6000 years – been viewed in a different manner than any other contract.  But it is a contract, just a unique form of a contract.  Thus, there are the various restrictions on valid marriages listed above (which is by no means a definitive and all-inclusive list).  Using similar procedures and concepts as with commercial contracts, states have drafted those laws that have defined who can enter into marriage and under what circumstances.

The basis for US contract law (at the Federal and state level), as with entire UCC (and much of the rest of US law) is English Common Law.  But legislatures have gone well beyond English Common Law and continue to define and refine the law in accordance with events of the day and the desires of the electorate.  And so, we have more than 50 different jurisdictions in the US (the 50 states plus Puerto Rico, Guam, American Samoa, Washington, DC, etc.) and each one has the opportunity to define various contractual relationships as they see fit.  Marriage is one of them.  It is worth noting, of course, that more than 30 states have passed legislation that defines marriage strictly in terms of it being ‘between a man and a woman.’  Among these is, of course, California, where 58% of the electorate voted for such a definition only to have several judges overturn their vote.  (That the President seemed and seems unconcerned by such an act, even though he recently professed some angst over the idea of the Supreme Court overturning an act by Congress is confusing, but doesn’t seem to trouble him.)  That the voters continue to vote in support of the traditional definition of marriage, while the President and the main-stream media (and their polling cohorts) continue to insist that the nation supports a different definition of marriage is to be accepted as one of the realities of politics.  But it is politics.

What is significant is that this is the appropriate action.  If the citizenry are concerned about a particular facet of the law, it is perfectly within their powers - as the source of all power in government derives from the people – to hold a referendum to define that facet as they see fit.  31 States have now done so.  What is not appropriate is that judges, in the face of a clear mandate from the general populace in the form of a referendum, seek to define something as a right which is clearly a contract.

The significance of the voters’ decisions is that democracy has produced a result that does not fit with the story of the President or the media.  The President can lobby for change, and the media can follow his lead.  But what the voters should insist, and this is arguably more important than any argument about the definitions of marriage, is that the President respect the vote of the people – the real government – and not seek to undermine it by calling for judicial activism when it suits his political agenda.