President Obama’s recent “outing” by Joe Biden on the same sex marriage issue along with North Carolina’s Amendment 1 which bans all non heterosexual marriages has bubbled this divisive issue back to the top of the lava lamp that is our political landscape. It does not matter what the President nor the voters of North Carolina think. Laws based on the mercurial moods of the public are a recipe for tyranny, i.e. the Rule of Men rather than the Rule of Natural Law. Natural law is the immovable bedrock that supports a stable framework that PROTECTS our natural rights, not abridges them.

Not so recently marriage licenses were used as a mechanism to prevent whites from marrying non-whites.

To understand the marriage issue we must first gain some perspective. The historical purpose of a state granted marriage license was to cause the applicants to plead to the state for permission to marry in order that they prove that there was nothing about the marriage the state might find objectionable. In other words you had to ask for permission from your master (the state) to partake in a natural right (right of association and speech). State prohibitions on marriage fluctuate with public perceptions of what constitutes a “valid” marriage. Not so recently marriage licenses were used as a mechanism to prevent whites from marrying non-whites. Today we view that as an absurd restriction, but the public did not view it that way a mere 50 years ago. If the majority is always right then does that mean the “rightness” of an action depends upon mass opinion? Surely such moral relativism has no place in a modern constitutional republic.

For those that suggest the Bible establishes inerrant moral edicts and therefore the ban on same sex marriage is valid, please recall that the Bible too was often used not only as justification against interracial marriage but as a justification for slavery as well. My point is not to disparage the Bible but rather to point out that whether it is the Bible or the US Constitution, humans will always find a way to interpret a complex document to fit their desired viewpoint. How do we know we aren’t doing that right now? Some are sure they aren’t doing so now, but people 50 years ago were sure they weren’t doing it then either. But even were we to agree the Bible is clear on this issue, do we truly want to live in a theocratic state where laws are based upon current religious viewpoints? As I have covered previously, morality that is imposed by law does not make one righteous. God gave us free will, our laws should not take away that which God granted (for victimless “crimes”).

Some have argued that if there are no restrictions on marriage this will lead to crazy scenarios with people marrying their cat or a potato. Please. Anybody crazy enough to marry their cat is already crazy… you can’t outlaw crazy, they’ll just find some other crazy thing to do. But even if they did marry their cat, so what? How does that in any way affect your marriage? Do you suddenly stop loving your spouse? Are matrimonial vows nullified? Others argue that children are best raised in a two parent male-female household. I’m not sure by what metric one objectively measures the outcome of child rearing but current evidence shows no deleterious effects. Besides, if we assume that two parent male-female households are best and “best” is the basis by which to outlaw that which is not “best”, then I suppose we must make single parent households illegal as well?

At the end of the day what I propose likely would make neither side of this debate happy, so that by itself should suggest it is the best course of action. In short, return marriage to the private realm. The state (government) has no place in regulating or licensing marriage (contractual associations). The right of association/contract implies we may associate with whomever we choose and in whatever manner we choose as well as giving public notice of such associations. Likewise, no individual or group (churches, health insurers, employers, etc.) can be required to formally recognize such associations. They can if they want to, but there should be no legally mandated consequences to not doing so. That’s what freedom is, freedom to do as you desire as long as it does not infringe on anyone else’s freedoms.