re: The Supreme Court of Consensus
posted at 7:10 pm on March 27, 2013 by Jazz Shaw
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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