As you are reading this column the United States Supreme Court is hearing arguments on two cases involving same sex marriage. One case involves a California law which bans same sex marriage and the other which pertains the federal Defense of Marriage Act which forbids the federal government from recognizing same sex marriages that have been performed legally in the United States. And somehow the conservative point of view is that these laws should be upheld in order to defend the institution of “traditional marriage”. There is so much hypocrisy here it is hard to decide where to start.
We can start by knocking down the straw man of “traditional marriage”. In various societies, including Judeo-Christian societies, the concept of marriage has certainly evolved. Biblical figures such as Abraham, Isaac and Moses had multiple wives. Certain elements of the Church of Latter Day Saints have promoted men having several wives and the Catholic Church still considers divorce to be a mortal sin.
Despite these historical precedents and present day realities, a prevailing societal vision has virtually outlawed multiple wives while accepting and codifying divorce. There are Mormons and Catholics who would vigorously disagree with this legal structure and would argue that, in their moral universe multiple wives or the banning of divorce are right.
Somehow this prevailing societal vision slips and slides all over the moral landscape banning multiple wives, approving divorce and, in this current matter arguing that a legal and binding marriage can only be between a man and a woman. And the first question that has to be asked is how government can impose such a determination on the extremely intimate and private lives of citizens?
It can be reasonably argued that marriage is an expression of love and commitment between two people that provides the married couple with a range of obligations, benefits and governmental recognition. Property rights, insurance coverage, adoption and custody of children, spousal support obligations and inheritance protocols are all affected by marriage status.
It would seem to be a matter of elementary fairness to permit two people to make that commitment and accept those obligations if they choose to do so. To condition that commitment on the basis of gender makes as much sense as conditioning that commitment on the basis of race. And indeed, less than half a century ago there were laws in this country that prohibited interracial marriage, laws that are now properly in the trash heap of history. And it is almost a certainty that laws against same sex marriage are also headed to that trash heap.
But the issue of conservative hypocrisy slithers into the discussion because several states have now legalized same sex marriage. Article 10 of the United States Constitution clearly states that powers not granted to the federal government by the states belong to the states.
Since the ratification of the Constitution in 1789 states have not granted to the federal government the power to determine qualifications or standards for marriage. As a result there are no national standards for marriage and the rules for getting married vary state by state. In Alabama a fifteen year old can get married, in New York that cannot happen. But the state of New York will recognize an Alabama marriage in its courts.
In New York two women can get married. But currently the state of Alabama is arguing that it should not be required to recognize such a marriage. And the right wing of the right wing of the conservative party which wraps itself in the Constitution and worship every word and phrase in that document trample over the principle of state’s rights when it suits their agenda of imposing their presumed moral superiority on others.
That the conservative wing of political policy discourse in this country would wish to use the apparatus of the federal government to override the decisions of individual states with respect to standards for marriage is hypocrisy to the extreme. Because these are the same conservatives who argue against the federal government being involved in everything from health care to civil rights but do not see the absurdity of their desire to federally legislate who people can love.
We will all be awaiting the SCOTUS decision in June of this year. We can only hope that the ScaliaRobertsThomasAlito right wing cabal will follow their own philosophy and do the right thing.