Green Room

re: The Supreme Court of Consensus

posted at 7:10 pm on March 27, 2013 by

Ed had an interesting and rather wide ranging column today which looked at the Supreme Court’s standing, ability and authority to tackle issues surrounding same sex marriage. I’ve written plenty about the subject in a broader sense, so there’s no need to rehash all of that here. But one point came up which, by coincidence, tied in very closely to a long debate that was taking place on Twitter last night, and it deals with the idea of licensing and government in general.

It references previous court decisions regarding subjects which are among “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.

True — but not relevant. The choice of sexual partners and practices is (with some exceptions) a very private matter, which was the basis of the Lawrence decision a few years back. Government recognition of those choices through the licensing of marriage is not an “intimate and personal choice.” Government licensure is a public act, which means that the public has the right to set those parameters within the bounds of the Constitution. (That, by the way, was why the Loving case succeeded, as it should have; the bar on interracial marriage directly contradicted the 14th and 15th Amendments.)

On one level, I can see how Ed’s argument has a lot of appeal, particularly if you support the idea that the government should be able to “define” the word marriage – and in a logical fashion to be sure – but I find a serious flaw with the argument. Going back to our public discussion last night, this line of reasoning requires you to start from an assumption that simply because there is currently a license required to engage in a particular activity, then there is an argument to keep it in the public sector. The problem here isn’t with Ed’s conclusion, but with the underlying assumption.

One thing which I think is long overdue in this country is a thorough review of the entire sphere of activities where government at all levels has seized the power to regulate and control actions by requiring a “license” – and an associated fee to put in their coffers! – before you can engage in them. If we were to assume that there is no legal and permissible human activity which government can’t prohibit by requiring a license and a fee, there’s little to argue with, but I reject that premise and believe that government has already grown too big for its britches in many areas. (“ll warn you in advance that this gets a little long, but if you’re interested in the subject, bear with me. And trust me, it ties back to the original premise.)

For any of these, I saw opponents citing completely unrelated arguments which miss the point, but I’ll start with a couple of the simplest ones, beginning with hunting. At what point did we collectively decide that the government should be able to charge a fee before you can feed your family by taking game “on the King’s land?” Didn’t we leave England at one point over things like this? Why do you need to pay a fee and obtain a license to feed your family? Here are a few of the incredible arguments I received against this premise and why they are wrong:

“So you should be allowed to fire a gun wherever you want?” – No. And not related. You can have public safety laws preventing anyone from firing a weapon within a certain distance of other buildings, etc and arrest anyone who does it whether they are shooting at a deer or a beer can. This has no bearing on licensing to hunt game. But it does drag the equally unrelated gun control debate into it to heat up people’s passions, so nice job at spin management.

“So you should be able to hunt any animal you wish to extinction?” – No. If we, as a society, collectively decide that we should ban the killing of a given species to prevent its extinction, (also rather dubious, in my opinion) then you can pass that law. It has no bearing on the taking of plentiful animals which you already say it’s okay to take providing you have a license.

“But the fees go to promote wildlife management and help hunters!” – That’s an excellent point which tugs at the heartstrings, but it also fails. Again… if we, as a society, decide that investing in such wildlife management is a good idea, (and I think it is) then we should jointly fund it by public agreement, not just levy the fee on one segment of the population, some of which may not agree with the idea. Also, people can donate to groups like Ducks Unlimited if they feel that strongly.

The same set of arguments can be made about fishing licenses, which are possibly even more laughable since they don’t involve guns. I don’t see anything in the constitution which should give government at any level the power to tax us and require a license to take a plentiful fish to eat.

Why do you need a license to take in a dog as your companion and pet at home? Why can the government demand that you license your dog? You can try to argue about dogs getting loose and biting people, needing shots, etc. but all of those situations can be outlawed in the name of public safety without requiring the individual dog owner who has yet to break any law or endanger anyone to purchase a license.

How about requiring a license for an individual to brew any amount of beer or distill liquor on their own property for the consumption of their own family. (Yes, you can brew 200 gallons of beer, wine or mead, but they still impose limits. And you can’t distill liquor at all without a virtually impossible to obtain permit.) There’s a marginal argument on distilling because of the danger of an explosion from an improperly ventilated structure, but local municipalities could require a codes inspection for ventilation. If you aren’t selling or distributing the product to anyone else (a different field of law) what empowers the government to demand you have a license?

The government – at all levels – has long been out of control in terms of the things it demands licenses for. I could continue this list for pages, but you get the general idea.

Now, to come full circle back to the original question.

If the previous questions were based on stopping the government from requiring a license and a fee to engage in activities which only involve ourselves or our families, where on Earth does the government derive the right to demand we “qualify for” and obtain a license and pay a fee to engage in a ceremony declaring to our friends and family that we are committing ourselves to a loving partner for the rest of our lives, whether that declaration be made before a priest, a rabbi, a Justice of the Peace or a mentor? Don’t bring up the “raising of children” issue here, because plenty of marriages don’t produce offspring and very nearly a majority of children are born to unmarried persons. We can talk until we are blue in the face about property division, etc but that comes into the contractual end of an agreement between any two parties. Caveat emptor. You can sign such a shared resources with any agreement or company, and if you don’t, shame on you. It has nothing to do with the fundamental premise of making a public promise to another person about your personal relationship. The government dares not – today – try to forbid you from living with, loving or engaging in consensual physical relations with another human being in the privacy of our homes, nor proudly proclaiming that relationship in the public square. Where does the government claim the authority to reach that deeply into your most personal relationships and insist upon your qualification for and purchase of a license along with the payment of a fee?

This is not an argument “in favor of gay marriage.” It’s a demand that the government stop exerting control and extorting fees where it has no right to intrude. That was obviously far too long of a diatribe, but if you really believe in limited government and personal liberty, you should be asking your elected representatives for a full review of all of these licenses – and many more – and demanding they explain precisely where they derive the authority to require them.

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It’s really too bad that we don’t have some sort of mechanism for the people to express consensus, like, say democratic elections. Relying on a bunch of old lawyers to have their fingers on the pulse of public opinion seems like a really lousy way to figure out what is and is not consensus. If we had a way for the people to actually contribute and make their thoughts known through, say voting, that would leave the courts to a more suitable role, such as protecting the rights of the minorities and the less vocal by relying on the rule of law rather than the heckler’s veto.

besser tot als rot on March 27, 2013 at 7:22 PM

This is not an argument “in favor of gay marriage.” It’s a demand that the government stop exerting control and extorting fees where it has no right to intrude.

You don’t have to have a marriage license to get married. You only have to have a marriage license to have your marriage recognized by the state, and for government benefits to attach to your marriage. Government recognition and benefits are not a right. Marriage licenses are only “intruding” insofar as people getting married want government recognition and government benefits. A limited government has a legitimate interest in promoting activities that have strong positive impacts on society, as opposite sex marriage quite unequivocally does. They do a really poor job of promoting it, but that doesn’t mean that it doesn’t make sense for them to actually promote it.

besser tot als rot on March 27, 2013 at 7:42 PM

besser tot als rot on March 27, 2013 at 7:22 PM

Voting is nothing more than mob rule. We are supposed to be a Constitutional Republic with democratic process being a part of of the picking of leaders.

The real problem with America today is that Washington has grown beyond the original intentions of the founders by multiple magnitudes.

The first such major growth was when Lincoln destroyed the concept that we are a freely associated United States of America, we are now the forced into United States of America.

The second and third major growth was when the states relinquished their power of the purse with the 16th Amendment and the power of control over the Senate with the 17th Amendment.

The fourth and final growth, which is also the final nail in the coffin for the United States happened under FDR when the Supreme Court, no longer being vested into power through the state selected Senate confirmation process was bullied into acquiescence to the will of the federal government.

astonerii on March 27, 2013 at 7:47 PM

besser tot als rot on March 27, 2013 at 7:42 PM

The idea that the government should be disbursing benefits to people based on whether or not they are married (not whether they have children or anything else) is absurd and patently unequal treatment. Hence why I also think the entire concept of marriage should be erased from the tax codes. Of course, that’s functionally impossible at this point, sadly.

Jazz Shaw on March 27, 2013 at 7:49 PM

The idea that the government should be disbursing benefits to people based on whether or not they are married (not whether they have children or anything else) is absurd and patently unequal treatment. Hence why I also think the entire concept of marriage should be erased from the tax codes. Of course, that’s functionally impossible at this point, sadly.

Jazz Shaw on March 27, 2013 at 7:49 PM

Tell that to Russia and other nations, including our own, where birthrates are so poor that they need an external population source for population growth.

njrob on March 27, 2013 at 7:54 PM

The idea that the government should be disbursing benefits to people based on whether or not they are married (not whether they have children or anything else) is absurd and patently unequal treatment. Hence why I also think the entire concept of marriage should be erased from the tax codes. Of course, that’s functionally impossible at this point, sadly.

Jazz Shaw on March 27, 2013 at 7:49 PM

Marriage actually provides a demonstrable benefit to society, unlike a great majority of the other things promoted in the code. I say we get rid of all that other stuff first and then we can have a discussion about whether or not it make sense for the government to promote marriage, and if so, how to do it.

besser tot als rot on March 27, 2013 at 7:56 PM

Pertinent, just-released data from the CDC:

There are now 110,197,000 Venereal Infections in U.S.

New STIs in the U.S. in 2008 included:

2,860,000 new Chlamydia infections;
1,090,000 new Trichomoniasis infections;
820,000 new Gonorrhea infections;
776,000 new Herpes Simplex Virus Type 2 (HSV-2) infections;
55,400 new syphilis infections;
41,400 new HIV infections; and
19,000 new Hepatitis B infections.

http://cnsnews.com/news/article/cdc-110197000-venereal-infections-us-nation-creating-new-stis-faster-new-jobs-or

Lesson learned:
Remain a virgin until (heterosexual) marriage, & marry a virgin.

Because morality can only be defined by God.
If there’s no God, there is no such thing as morality.

itsnotaboutme on March 27, 2013 at 8:04 PM

Marriage actually provides a demonstrable benefit to society, unlike a great majority of the other things promoted in the code.

besser tot als rot on March 27, 2013 at 7:56 PM

Of course.
And homosexuality is a huge drag (no pun intended) on society.

Homosexuality is an extremely unhealthy lifestyle, & society pays:

http://www.frc.org/get.cfm?i=Is01B1

BTW, homosexuals are far more likely to molest children than heterosexuals, too.

Why are we promoting it?

itsnotaboutme on March 27, 2013 at 8:08 PM

BREAKING:

Benghazi survivors being kept quiet because they’re gay.

BobMbx on March 27, 2013 at 8:32 PM

Jazz, youre confusing a marriage license with being in a committed relationship. No license is imposed for that. There are plenty who forgo marriage and are yet in committed relationship. A marriage license is not a permissive license like a gun license. And don’t pull out the “don’t even talk about raising children” objection. You’re right that procreation isn’t the be all and end all of marriage, but it is a pretty solid reason for the government to create its civil marriage system. A law need not be perfectly tailored for a single reason in order for it to be a valid reason.

Crispian on March 27, 2013 at 11:13 PM

Don’t bring up the “raising of children” issue here, because plenty of marriages don’t produce offspring and very nearly a majority of children are born to unmarried persons.

The only reason government has any legitimate role in “marriage” is that it is not, contrary to common argument “a contract between consenting adults”. When The Bride of Monster and I were wed, there were in fact four parties to the “contract”, two of whom (Monsterettes 1 and 2) were by definition too young to give their consent to the contract, having not even been conceived yet.

That some marriages do not produce offspring does not negate the fact that what a man and a woman make the “intimate and personal choice” to do can produce children, while any “intimate and personal choice” solely involving one gender cannot do so. One could argue that the state has no business in heterosexual marriages involving an infertile spouse. There are, of course, lots of cases of “infertile” people who somehow manage to become pregnant, so even knowing who would thus be disqualified for marriage would be difficult at best. And the only way the state could know about a medical diagnosis of “infertility” is to violate the couple’s privacy in ways that Griswold v. Connecticut would not allow.

Every argument in favor of SSM also is an argument for plural marriage. This isn’t a “slippery slope” argument. I challenge any SSM advocate to give a counterexample. Find one argument used to support SSM that allows a line to be drawn at the magic number “2″. If people have a “right to marry”, then that right is not limited so arbitrarily.

Of course, marriage isn’t a right. It’s a responsibility.

The Monster on March 27, 2013 at 11:42 PM

This argument for keeping marriage as is might be of interest to some folks:

You have to download the PDF file, but it is well-worth the read.

Othniel on March 28, 2013 at 12:07 AM

Finally; a post mirroring what I have been trying to get across on here. Now, if you could convince AP, he might then stop painting the front-page rainbow. Then I would be able to read more articles. Mention to him also, the politician-dominoes is a facade. Code word: narrative.

All above just needs to be conveyed as “a government is not a stand alone entity, but merely a person, or persons, lording over all others”. It is as if you knocked on your neighbors door and let them know they decide aspects of your life: allowing, prohibiting, and mandating; or, if you prefer, the occupants a couple blocks over; perhaps hundreds of miles a way. It’s not a deceptive narrative as “they” use, but is narrative of truth. Use their own stick against them.

John Kettlewell on March 28, 2013 at 2:29 AM

Of course, marriage isn’t a right. It’s a responsibility.

The Monster on March 27, 2013 at 11:42 PM

Well said this is.
The division of property can be worked out through the courts with laws already there.
But when children of a union are involved, this becomes the vested interest that the state has in defining such unions.
I still say this is a state matter & not a Federal matter.
Let states & their voters deal with these issues bcs it is up to them per the 10th Amendment, NOT the Fed.
The only rights we have are well stated.
The rest of those things get defined by the will of the people per state.
It really has never been that hard, but of course, people are naturally going to obfuscate issues they have a bias for.
This was why the Founding documents were so powerful. It took that obfuscation out of things.
But if people refuse to recognize & play by the established rules, then there are no rules & you have chaos, as we do now.

Badger40 on March 28, 2013 at 8:12 AM

where on Earth does the government derive the right to demand we “qualify for” and obtain a license and pay a fee to engage in a ceremony declaring to our friends and family that we are committing ourselves to a loving partner for the rest of our lives, whether that declaration be made before a priest, a rabbi, a Justice of the Peace or a mentor?

From history – specifically out of the western European practice of documenting these relationships to track inheritance and lineage (and, therefore, consanguinity). Especially in the western Empire, where the church and the government were so frequently entangled (or outright congruent). Do you think the government should be tracking consanguinity and inheritance? Do you think “licensing” marriages is necessary for that to occur? (I’m not arguing they are, simply setting the premises for the debate.)

BTW, be careful with the “you can already set up a contract for who gets your stuff after your death, so why does the government need to be involved” argument. Even in this age of LegalZoom.com and the fact you can make a totally free will and update it every week if you desire, with nary a blink of the eye, people still don’t do it! Right now, because the government is “involved” with marriaqes (and, therefore, with offspring), probate can resolve those issues. If they “un-involve” that becomes harder to do.

Don’t bring up the “raising of children” issue here, because plenty of marriages don’t produce offspring and very nearly a majority of children are born to unmarried persons.

First, the fact that some marriages don’t produce offspring is irrelevant to the issue of whether they normally can. Barring intervention (age, disease, willful action) a heterosexual couple can produce their own offspring – hence the ‘state’s interest’ argument. The fact that a lot of folks are doing the wrong thing (in the sense of popping kids out everywhere without a stable family to bring them into) doesn’t invalidate the right thing. You make this mistake a lot, Jazz.

GWB on March 28, 2013 at 11:20 AM

Interesting and thought provoking Jazz.

One quibble:

Why can the government demand that you license your dog?

The government? It’s far too common an error, and I make it myself. But there isn’t The government. There are lots of differing governing bodies. The US federal government doesn’t require my to license my dogs, the state of Ohio does, based, I’m assuming on a power granted by the Ohio Constitution (haven’t combed through it) and which could be changed by a voter initiative. Which lastly undid a public sector union labor law and defined marriage as one man, one woman.

As to marriage itself. It vastly predates any marriage license. In medieval Europe, where even kings and emperors were illiterate, there weren’t marriage licenses, simply public ceremonies. And it’s not just Anglo-American tradition, look at Japan & China: one man-one woman marriage. Ancient Greece had one man-one woman marriages, which is not to say that all of the sexual practices, which is different from marriage, would pass muster today. So it seems that one man-one woman marriage, with some exceptions (emperors’ harems, Muslim 4 wives) is the normal, across cultures and across time, definition of marriage.

Now, can we change that? Certainly. There is a democratic process and some states’ legislatures have done that. I’ve got no problem with that. But it seems that what’s at issue is estate taxes and income taxes. Which is another reason to abolish them and have a sales tax.

Suppose a Muslim man marries two women in Saudi Arabia, according to the law of that country, and then emigrates to the US. Does one of those marriages suddenly fade away, or does a state have to recognize them both, in a way a fundamentalist Mormon plural marriage isn’t recognized?

rbj on March 28, 2013 at 11:41 AM

First, the fact that some marriages don’t produce offspring is irrelevant to the issue of whether they normally can. Barring intervention (age, disease, willful action) a heterosexual couple can produce their own offspring – hence the ‘state’s interest’ argument. The fact that a lot of folks are doing the wrong thing (in the sense of popping kids out everywhere without a stable family to bring them into) doesn’t invalidate the right thing. You make this mistake a lot, Jazz.

GWB on March 28, 2013 at 11:20 AM

I’m curious here… please don’t take my question for outright argument for argument’s sake… I want to understand how we “square this circle” when it comes to the marriage/children aspect of this issue.

People often bring up that the state has a vested interest in the offspring of marriage, hence only heterosexual marriage should be state recognized as those are the marriages which produce natural offspring. However, doesn’t this argument assume that children, by the very fact that they become existent, instantly become wards of the state?

We conservatives/libertarians always rail against the concept of the left trying to make everyone a ward of the state or beholden and reliant upon the state for subsistence, and yet we attempt to argue in the SSM debate that somehow children the instant they are born are (when broken down to it’s most basic argument) wards of the state. If the state has a vested interest in ensuring children are raised in a specific household environment, then at what point is the line drawn in defining that household environment?

If we as conservatives/libertarians are to argue that the state has a vested interest in how children are raised then aren’t we shooting ourselves in the foot in terms of arguing against the whole concept that we are responsible for each other vis-a-vis things like Social Security, Medicaid or Medicare?

gravityman on March 28, 2013 at 1:03 PM

gravityman on March 28, 2013 at 1:03 PM

A provocative question. Nothing in that argument, however, presumes that children become wards of the state (progressives *do* extend this argument to that point, though!).

What it presumes is that there are behaviors that should be encouraged, and the state encourages the institution best suited for those behaviors – in this case, marriage. It’s actually a good barrier against the statist mentality, because it acknowledges that the state (among others) is not the best way to raise a child.

The libertarian argument for total government divestment in marriage is anchored, I think, partly in the slippery slope you point to. And, I think that is a valid argument. What isn’t a valid argument is to progress from “the state has an interest in children being raised well” to “the state should raise the children”. To argue the government has a responsibility to encourage an environment conducive to solid families is not the same thing as to assert that government has the responsibility for each and every individual child to achieve a certain outcome.

This is much the same as a referee in a game: he is there to ensure the best environment for the teams to compete, but not to ensure a “fair” outcome. The government should be the referee, not the scorekeeper. Note that a referee doesn’t punish a side for tossing the ball out of bounds, but simply awards possession according to the rules, and the game goes on. Only if you break the rules does the referee intervene.

GWB on March 28, 2013 at 1:38 PM

BTW, this argument is related to the “government should encourage charity” vs “government should be charity” argument.

Charity is a virtue, and the government should encourage it. It ennobles people to be charitable, and it benefits the recipients of said charity. Therefore, the government has seen fit to remove charitable giving from taxation. This is vastly different from saying that, because charity is a good, the government should take my money and give it to others. When the government practices what it thinks is charity, it inevitably does it poorly (not to mention that it does it with other people’s money).

GWB on March 28, 2013 at 1:44 PM

GWB on March 28, 2013 at 1:38 PM

Thank you, GWB. I can accept that as a reasoned argument.

However, I am left to wonder as I breifly hit upon in my prior question, where do we draw that line between the government being a reasonable referee and the government interfering the the game (to borrow your analogy)?

In this particular case, if we say the government can regulate that a proper household for raising a child is one man and one woman, then do we not set a precedent that would allow even deeper and more granular levels of interference and regulation that being to encroach on the liberty of the family? The is more a question of practicality and reality than of morality. We ahve seen that once you give government a foot in the door on an issue, before long you will most surely have a whole leg through the door, and it’s impossible to push them back out the door at that point. I fear that allowing what may seem like a sensible intrusion now will eventually worm it’s way into a massive intrusion that goes well beyond it’s intent. It is the way of government… any type of government throughout human history, not just our government.

gravityman on March 28, 2013 at 2:13 PM

GWB on March 28, 2013 at 1:44 PM

Interesting that you should bring up the encouraging charity vs. being charity thing. I actually very much agree that it relates to that distinction… in fact, I had that in mind when initially posing my question.

In spite of the fact that I am an atheist, I do believe that charity is a function of the church. I’m not an anti-theist… I believe churches and religions before valuable functions in society, with charity and the setting of a moral compass being chief among those things. I suspect where we diverge on things is just how much of a particular religion’s moral compass should be codified in law.

Getting back to the encourgaging vs being charity discussion though, I always go back to the concept of the Founding Fathers (being the Consitutional Originalist that I am). For the founders, it was clear that charity was not a function of the government. Almost every one of them wrote words to exactly that effect. They believed that providing for the poor or the sick was a function of the church through it’s charities, and that intrusion on that by the government created tension between church and state and pushed the boundaries of the separation of the two by stepping on the toes of the church (not to mention the issue of confiscating the fruits of a man’s labor to give it to others… which they rightly felt should be a voluntary act undertaken through their church charities).

Even as an atheist, I would be willing to give (and have done so in the past) to a religious charity if I feel they are doing good with those funds. It doesn’t require me to believe in the dogmatic aspects of a particular chruch in order to recognize and contribute to good charitable work that they do.

gravityman on March 28, 2013 at 2:26 PM

gravityman on March 28, 2013 at 2:13 PM

A very valid concern. If we restrict the federal government to its proper roles (Constitution), this problem tends to go away on its own, as they aren’t meddling. When questions like this get returned to the states, it’s much easier to maintain that line because you (as a citizen) have much more control at the state and local level. But, yes, it is a constant fight with those who see government as a tool to fix what’s wrong with the world.

GWB on March 28, 2013 at 2:41 PM

When questions like this get returned to the states, it’s much easier to maintain that line because you (as a citizen) have much more control at the state and local level. But, yes, it is a constant fight with those who see government as a tool to fix what’s wrong with the world.

GWB on March 28, 2013 at 2:41 PM

I’ll will add to the part above that I highlighted…

Even if it wasn’t a matter of how easy or difficult it is to influence on the state level (and you are correct that it is easier), the even more basic reason would be that it is how our Constituion is intended to operate. The Tenth Amendment grants the states the right to undertake any function that isn’t either expressly given to the federal government or that the state is barred from undertaking by the Bill of Rights and subsequent amendments.

There are SO many matters handled by the federal government that I firmly believe should be left to the states under any strict reading of the Constitution, SSM among them.

gravityman on March 28, 2013 at 2:52 PM