Marriage, Same Sex Couples, And The Supreme Court.

The Supreme Court’s job is to apply the law to the case in front of them, not make law from that case. The Supreme Court’s ruling last week on same sex marriage was similar to the Roe vs. Wade decision from this stand point. It struck down the laws of all 50 states and replaced them with a one size fits all law.

The clear meaning of words is important if our goal is to communicate clearly with one another. If our goal is to fool people for political purposes, the clear meaning of words isn’t that important. If one thing is by definition different from another thing, are they the same? And can they be made the same by judicial decree? The answers are no and no.

The definition of marriage is a union of one man and one women. A man and a man being a couple or a woman and a woman being a couple is not by definition marriage no matter how much it is wished to be. Same sex unions are their own unique entity just as the union of a man and a woman is it’s own unique entity.

The same sex marriage debate was presented with only two options. 1) Same sex partners should be considered the same as married couples, or 2) They shouldn’t (and that is “discriminatory”). Civil unions were never really considered because how a debate is framed is most important if everything is fought in the political arena. Even the Court, which is supposed to be blindfolded when it comes to politics, has taken the blindfold off and has become a political entity. It is essentially a nine seat legislature that creates law when certain cases come before it.

I don’t understand why gay people want the Government to be involved in their relationship decisions. When the Government makes a law it is a one size fits all decision and it limits what you are free to do. It does not expand your freedom like so many think it does. Same sex couples should be allowed to make a contract concerning their obligations with each other however they mutually agree to do so. Each, (we’ll call it a civil union), would be unique to the two people involved in the decision and wouldn’t apply to any other couple. There would conceivably be as many civil union contracts as there are civil unions. When the Government decides what the rules are, it trumps all the possible decisions couples could make in a civil union.

I’m disappointed in the shallow thinking on both sides of the issue. It’s like both sides have their banners planted on their particular hill of truth, and as long as their rhetoric is flying high, they won’t try to analyze the issue any deeper than their rhetoric.

Marriage, Why Is It Protected By The Law?

I wrote a post titled, “We’re All Born In The Middle Of The Story“, in which I quote Thomas Sowell who said, “results observed at a given point in time may be part of a process that stretches far back in time.” This quote is the first thing everyone should think about when they are trying to understand any issue that is being discussed. Most people think history started the day they were born. They give little thought, or have no understanding of how the world that existed the day they were born came to exist as it did. Being born in the middle of the story automatically makes us ignorant, sometimes blissfully ignorant, about the beginning of the story. When it comes to the issue of marriage, we are all born in the middle of the story.

The issue of same sex marriage is not a question of understanding why gays don’t  have the “right to marry”, it is an issue of understanding why marriage, defined as a union between one man and one woman, was legally acknowledged in the first place. This issue doesn’t seem that complicated if you look at it logically and not emotionally, but that’s the problem in today’s society, emotions and feelings trump logic and reason in our therapeutic world.


Marriage existed as a private institution before Governments acknowledged it as a legally protected public institution. Just because Government acknowledged it as a legally protected public institution, doesn’t mean it is no longer a private institution. Government didn’t create the institution of marriage, as we who were born in the middle of the story might think, Government tried to intentionally protect marriage long after it had evolved spontaneously as a private institution. F.A. Hayek talks about spontaneous order in his three-volume book, “Law, Legislation, and Liberty.” In it he lists law, liberty, language, markets, morals, and money as social institutions that were not created by an individual or a Government, but evolved through the process of humans freely interacting with each other. If we understand how language was created, it will be easier to understand how these other institutions, especially law was created. Were the rules of English written down and then everybody started speaking it? No. People started to communicate with each other, and long after the fact discernible patterns of English language started to emerge, and these rules were written down. Children follow the rules of English long before they are taught the rules of English in school. Just as speaking English predated the rules of English, general rules of order and conduct existed long before they were codified into laws by a Government (the people).


Marriage is the union of one man and one woman. It has evolved this way in every culture and religion, and in every place across time. This is the beginning of the story, and the fact that it has been this way for thousands of years seems to put the burden of proof on the proponents of gay marriage as to why marriage, defined as the union of one man and one woman, should be redefined. But lets look at why marriage evolved as it did, and why Governments acknowledge and protect it.


The propagation of the human species and the maintenance of a civil society rests on the institution of marriage. These became apparent only after marriage came into existence. The fact that a child is produced by a man and a woman is the starting point of why marriage became a private institution in the first place. Men have a propensity to run around and spread their seed unless they are constrained somehow. The familial bond between man, woman, and child, which is based on love and responsibility, creates a strong incentive for men to stay with the woman and child. Men staying with their family came to be accepted as a general rule of conduct and order. Even with all of these incentives, men would still leave the families they created. A woman is at a disadvantage in a marriage for one simple reason, she gives birth to the child. She gives up part of her ability to earn a living because pregnancy, birth, and early child rearing takes time, time she can never make up. She has a right to be made whole if the man leaves the marriage because a tort has been committed against her. A tort is a legal term that means, ‘loss or harm suffered because of the actions of another’. The law allows the harmed party to recover their loss. This is another incentive for men to accept the responsibility of creating a family. Let’s review the reasons that Governments acknowledged and protected the union of one man and one woman. 1) It is how the maintenance of a civil society can be brought about with the least psychic, and monetary cost. General rules of conduct and order are passed on to the next generation through the family structure. This cuts down on the cost of dealing with the havoc uncivilized young adults can inflict on society after the fact. The monetary cost of raising a child is born by the parents and not by society in general. 2) Because the woman gives birth to the child, she is at a disadvantage in the marriage, and needs to be legally protected. Dowry, bride price, and alimony are examples of attempts to make the woman whole if the man leaves her.


The union of a man and a man or a woman and a woman doesn’t produce a situation where either party is at a disadvantage and needs protection. Each person is equal in these relationships. The union of two men can’t produce a child, and the union of two women can’t produce a child. If they decide to adopt a child, or in the case of the women, one decides to give birth to a child, they are free to make these arrangements.  The reason being, they are both equal parties before they make a decision. You can call the union of two men or two women whatever you want to call it, but you can’t call it marriage, because marriage is the union of a man and a woman. This relationship creates the definition, the definition doesn’t create the relationship, therefore marriage can’t be redefined as anything but what it actually is.


Same sex couples should be allowed to make any arrangement they want to make. Why would they want to be limited by a Government definition of marriage? Each gay couple can make their own unique contract, which can be added to, or subtracted from, as their personal situation changes. Why aren’t gay couples upset at Government? It’s Government that restricts their ability to order their partnership as they see fit. Gays are also upset that they are denied Government benefits that married couples get. If you look at the mountain of benefits the Government extends to married couples, my observation would be, Government is too big. Why has Government strayed so far away from the basic protection of marriage as a private institution? The answer, power and votes. Government always expands its power once it gets a foot in the door. Gay’s shouldn’t want Government anywhere near their decision-making about their relationships.


Marriage wasn’t created in order to discriminate against gays, but this fallacy of “marriage discrimination” is being used as a rallying cry to tear down the very institution that has maintained society for thousands of years. President Clinton signed the Defense of Marriage Act in 1996, now he and Hillary are against it. President Obama was against gay marriage during his first term, not now. Republicans are trying to walk the political tight rope between both camps. Playing political games with the institution of marriage is a dangerous play. We never ask where the road we are about to take leads us. If we do not understand why marriage was protected in the first place, we will be swayed by emotional pleas for “fairness” and “equality”, that all issues turn into, when they are played out on the political stage.


Marriage is a union between a man and a women, and should be acknowledged and protected legally as such, it should not be redefined. Same sex couples should be able to make their own contract about how they want to order their relationship, and this contract should be protected, like any other contract that people voluntarily enter into. That should be the  extent of Government’s involvement in this issue. When Government gets involved in any issue, there will be guaranteed conflict between competing factions, because Government leads to a one size fits all decision. When individuals are allowed to freely  make decisions, cooperation, not competition, will be the result. We will be swayed by political wordsmiths who have the power to take our freedoms away, unless we get everyone educated about the whole story. If we don’t, we will be stuck in the middle of the story, which guarantees we will be making decisions in a state of ignorance. If both sides had quit fighting each other, and teamed up to battle the true enemy of their individual freedom, which is the Government, a much more equitable and less contentious outcome could have been realized.

Explore posts in the same categories: Government and Politics

Tags: , , , , , , ,

You can comment below, or link to this permanent URL from your own site.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: