From Marriage to a Mere Contract

Conn Carroll at Heritage Foundation's blog, The Foundry:

[The] Iowa Supreme Court became the fourth state supreme court to redefine marriage to include same-sex couples. Justifying his decision Iowa Supreme Court Justice Mark Cady invoked his court’s 1839 decision which struck down slavery laws. Heritage’s Matthew Spalding addressed the specious argument back in 2003.

Mathew Spalding:

The argument of these judges is that homosexual “marriage” is simply the extension of privileges to a discriminated class in the name of civil rights. The parallel is made to the Supreme Court’s striking down, as instances of arbitrary and invidious discrimination, statutes that had been drawn according to race, in particular laws against interracial marriage.

But this analogy does not work. The first court faced with this argument as the ground used to justify same-sex “marriage” made the obvious point: “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”

What is happening is no minor adjustment, a slight change in degree that just extends benefits or rights to a larger class, but a substantive change in the essence of the institution. It does not expand marriage; it alters its core meaning, for to redefine marriage so that it is not intrinsically related to the relationship between fathers, mothers, and children formally severs the institution from its nature and purpose.

Expanding marriage supposedly to make it more inclusive, no matter what we call the new arrangement, necessarily ends marriage as we now know it by remaking the institution into something different: a mere contract between any two individuals.

Below is an extensive selection of snippets from Mathew Spalding's 2003 article.

[read more below the fold]

A Defining Moment: Marriage, the Courts, and the Constitution.

Marriage and Constitutional Government are at stake

What was once an important debate over the nature, purpose, and legal status of marriage has emerged as a critical national issue, the resolution of which will shape the future of our society and the course of constitutional government in the United States.

[...]

These judicial decisions [...] seek to redefine the institution of marriage by judicial fiat and affirm homosexual "marriage" as a fundamental civil right that the federal government has a constitutional obligation to secure nationwide.

Faced with such a concerted legal and political effort to deconstruct and thereby undermine one of the most basic institutions of civil society, policymakers must now take immediate steps at both the state and federal levels to protect marriage, prevent judicial usurpation, and uphold the rule of law.

Overwhelming Consensus.

For thousands of years, on the basis of experience, tradition, and legal precedent, every society and every major religious faith have upheld marriage as a unique relationship by which a man and a woman are joined together for the primary purpose of forming and maintaining a family. This overwhelming consensus results from the fact that the union of man and woman is apparent and manifest in the most basic and evident truths of human nature.

Marriage is the formal recognition of this relationship by society and its laws. While individual marriages are recognized by government, the institution of marriage pre-exists and is antecedent to the institution of government, which in turn presupposes and depends on the institution of marriage. Society's interest in uniquely elevating the status of marriage among human relationships is that marriage is the necessary foundation of the family, and thus necessary for societal existence and well-being.

Responsible Procreation.

Only in the context of family built on the foundation of marriage can the sometimes competing needs and interests of men, women, and children be harmonized.

[...]

Based on existing studies comparing two-parent and single-parent households, social science overwhelmingly demonstrates that children do far better when they are raised by two married parents in a stable family relationship and that children raised in other household structures are subject to significantly increased risk of harm. [...] Although we have little information concerning children raised in households with same-sex parents, what we do know is that marriage between a man and a woman provides unique social, economic, and health benefits for children, adults, and society in general.

Form and Substance.

In the end, despite all the changes that law and cultural trends have wrought concerning marriage--despite the laws concerning prenuptial agreements, divorce, tax, and property that treat marriage as a contract--it has never before been, nor is it now completely, the case that marriage is a mere contract. Society has changed the form, but never the substance, of marriage; and it is the substance of marriage--its very nature, definition, and purpose--that creates and justifies its unique position as a social institution and continues to give lawmakers strong and reasonable arguments for upholding traditional marriage and protecting it in law.

[...]

Expanding marriage supposedly to make it more inclusive, no matter what we call the new arrangement, necessarily ends marriage as we now know it by remaking the institution into something different: a mere contract between any two individuals.

Consequences.

Changing the definition of marriage--or even remaining neutral as to that definition--breaks down the very argument that gives marriage its unique and preferable status in society. If marriage becomes just one form of commitment in a spectrum of sexual relationships rather than a preferred monogamous relationship for the sake of children, the line separating sexual relations within and outside of marriage becomes blurred, and so does the public policy argument against out-of-wedlock births or in favor of abstinence.

Based on current evidence and settled reasoning, it would be a terrible folly to weaken marriage either by elevating non-marital unions to the same position or by lowering the institution of marriage to the status of merely one form of household.

[...]

Imposed by the courts, the redefinition of marriage is the legal establishment of a new status quo. While it is not correct to say that homosexuality or the advance of same-sex "marriage" is solely to blame--traditional marriage measured in terms of divorce, cohabitation, illegitimacy, and fatherlessness has been in decline for some time--the judicial redefinition of marriage, forced by the push for same-sex "marriage," essentially codifies and affirms these trends.

Consider a few possibilities.

Churches, synagogues, mosques, religious schools, and faith-based charities, as well as secular organizations of every kind, would be subject to a new kind of government scrutiny [under new laws forbidding discrimination in hiring based on sexual orientation].

[...]

By definition, all dissenters will find themselves at odds with the new political ethos and are likely to be stigmatized as prejudiced and discriminatory. [...] The legalization of homosexual "marriage" will greatly accelerate these pressures to marginalize the nation's religious communities and the values that define them.

[...]

The deconstruction of marriage will affect what children are taught in virtually every subject at public schools. Students will be instructed that marriage, like slavery before it, is a vestige of America's discriminatory past that was overcome by the latest step forward in the advancement of civil rights. At the very least, heterosexual and homosexual relations will be presented in public schools as fundamentally equivalent expressions of individual autonomy.

Defending Marriage and Constitutional Government.

Under normal circumstances, the federal DOMA would survive constitutional scrutiny. Many thoughtful legal scholars, however, believe that it likely would not withstand activist judges using dubious interpretations of due process or equal protection to advance their policy objectives. Given what is at stake, it is risky to rely solely on the federal DOMA.

In any event, the federal DOMA does not protect the nation from state judges like those in Massachusetts who misconstrue their state constitution to establish same-sex "marriage." Nor does it address various local jurisdictions that openly ignore and violate state marriage laws.

[...]

If the options are either to allow a few activist judges to redefine marriage by fiat or to amend the Constitution to reflect the settled will of the people, the choice is clear. It is imperative, for the sake of constitutional government, that we proceed with the democratic process of amending the Constitution.

If not us, who? And if not now, when?

This is a defining moment for our nation. Americans are a greatly tolerant and very reasonable people. They did not choose this debate or force this issue on the nation. But now that the issue has been joined and the decision has been forced, we must act in accord with our basic principles and deepest convictions to preserve constitutional government and the foundational structure of civilization.