It Is Dangerous to Be Right When the Government Is Wrong (18 page)

For example, suppose you have a collection of rare coins. You've spent years acquiring these coins and have searched all over the world for them. In doing so, you've catalogued each and every detail of the individual coins and placed them in a special cabinet. Does the government have the right to observe and copy your catalogue and publish its own catalogue of your coins? Most certainly not! This is your
private
collection of coins, which you choose to keep for yourself. The government cannot view these coins without violating your natural right to privacy.

The Government's Intrusion on This Right: Marriage

The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.

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—J
USTICE
L
OUIS
D. B
RANDEIS

Why must we seek the approval of the government to enter into marriages? For centuries, governments never interfered with marriages, but rather they were based on religion, parental choice, culture, tradition, and the mutual love of two persons. It certainly is not the government's role to meddle in your most personal of affairs. If the decision-making process that leads to the free choice to marry another person is not considered private, then what can be considered private? Again, our right to privacy stems from our desire to keep certain matters out of the public eye and between another and ourselves. There are few decisions more personal than deciding with whom you want to spend the rest of your life.

Why is the government involved at all with the institution of marriage? The government should not be in the business of determining who receives the contractual benefits of marriage, such as medical visitation and decision-making rights, inheritance rights, property co-ownership, and so on. You and your soon-to-be partner should determine who shares in the benefits of that marriage. Marriage should not be an institution of the state, but rather a contract recognized by the contracting parties and solemnized by either a cultural or a religious procedure or no procedure at all. When you buy a house, who solemnizes the contract?

Despite the relatively simple concept of excluding the government from your most personal affairs, our government's history includes frequent meddling with this tradition. Before the Founders signed the Constitution, before colonial leaders signed the Declaration of Independence, they sought to prohibit interracial marriages. The first documented interracial marriage in our nation's history was that of Pocahontas to John Rolfe. The story of these two individuals was passed down for ages and culminated in a Disney movie dramatizing the love between these two. While they were fortunate enough to marry almost forty-five years before the first anti-miscegenation law passed in 1661, the fairy tale was not happy for many other individuals. The anti-miscegenation laws prohibited mixed-race marriages in Virginia and numerous other states for more than three hundred years until the U.S. Supreme Court heard the case of
Loving v. Virginia
in 1967.
¹³
Unfortunately, the period between 1661 and 1967 was fraught with additional government intrusions on the natural right to privacy.

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At first, the laws were not so restrictive. For example, in the early years, the colonial governments required colonists formally to register their marriages, but it soon became common practice to accept cohabitation as a form of registration. Yet, by the late nineteenth century, state governments began to nullify common-law marriages and exert more control over who could marry whom.
¹⁴
By the early 1920s, thirty-eight states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians” “Malays,” or Filipinos.
¹⁵
And, as if things couldn't get worse, in 1924, Virginia passed a law prohibiting whites from marrying any individual with a “single drop of Negro Blood.”
¹⁶
The Virginia legislature went as far as to prohibit marriages between a white individual and another individual who was 99-plus percent “white” and one drop “Negro.” Perhaps even more astounding is that this occurred
within the last century
. The government clearly felt no shame in meddling in the most intimate of affairs.

Congress, which has the power under the Fourteenth Amendment to nullify state laws that take life, liberty, or property away without due process, did nothing about these horrific laws. Congress allowed one law after another to pass without exerting any effort to protect natural rights. Fortunately, the Founders were wise beyond their years and created a government of checks and balances. In this case, the Supreme Court provided the “check.”

In the case of
Loving v. Virginia
(1967), the Supreme Court found Virginia's anti-miscegenation laws unconstitutional and recognized our natural right of privacy. The case involved Perry Loving, a white man, who married his African American and Native American wife, Mildred Jeter. The couple married in Washington, D.C., which had no racial restrictions on marriage. After their ceremony, they returned to Virginia in the hopes of living in matrimonial bliss; yet, the bliss quickly faded. One morning, police officers broke into their home and barged into their bedroom to ask them what they were doing in bed together. Mr. Loving pointed to the marriage certificate on the wall, which the officers informed him Virginia did not recognize. The two were then arrested and jailed. And the case only gets worse.

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At trial, the judge gave the Lovings two options: Either move out of Virginia for twenty-five years or spend one to three years in jail. The Lovings chose the former. Subsequently, the judge delivered an opinion, which can only be characterized as profound fundamentalist ignorance. He stated,

Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
¹⁷

It is unfathomable that a judge entrusted with the protection of our constitutional rights could write such a statement. Fortunately, on appeal the Supreme Court displayed far superior intellect and respect for natural rights and formally recognized the natural right to privacy in regards to marriage. Chief Justice Earl Warren stated, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
¹⁸
In other words, a natural right.

While decades ago the Supreme Court formally settled the issue of interracial marriages, the nation is currently engulfed in the battle over same-sex marriages. For the same reasons the government should not interfere with marriages between individuals of various races, the government should not interfere with marriages between individuals of the same sex. What effect do same-sex marriages have on other individuals? As Jefferson might have said, they neither pick your pocket nor break your leg. They do not harm anyone or violate your natural rights.

To Love and to Cherish, Till the State Do Us Part

In 1996, Congress enacted and President Clinton signed the Defense of Marriage Act (DOMA), defining marriage as “a legal union between one man and one woman as husband and wife,” and providing that states need not recognize same-sex marriages from other states.
¹⁹
Currently, thirty-seven states have their own acts similar to DOMA, and two states have stronger language defining marriage as only between one man and one woman.
²⁰
Additionally, Section 3 of DOMA relates to the unconstitutional federal benefits married couples receive. In fact, in January 1997 the General Accountability Office issued a report clarifying the impact DOMA has on federal laws. The report concluded that 1,049 federal laws are affected. These laws include those relating to welfare programs such as Social Security, health benefits, and taxation.
²¹
A subsequent study in 2004 found 1,138 federal laws “tied benefits, protections, rights, or responsibilities to marital status.”
²²
How has the institution of marriage, which governments traditionally never regulated, become an institution tied to more than 1,138 federal laws?

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In 2010, a federal district court judge in Massachusetts found the section of DOMA that permitted states to grant or withhold benefits based on the sexual orientation of one's marital partner to be unconstitutional because it violated the Equal Protection Clause embodied in the Due Process Clause of the Fifth Amendment.
²³
In
Gill v. Office of Personnel Management
(2010), Judge Joseph L. Tauro embraced the view that the states historically were in charge of requirements for marriage, and it is not a constitutional concern of the federal government; rather, the individual states are to make this determination. Judge Tauro held that DOMA encroaches on “a historically entrenched tradition of federal reliance on state marital status determination.” Moreover, in dismissing the government's justifications for the Act, Judge Tauro concluded only “irrational prejudice” motivated the classification of same-sex couples as separate from heterosexual couples. Thus, DOMA violates the Fifth Amendment's mandate of equal protection.

In the companion case to
Gill
, called
Commonwealth of Massachusetts v. United States Department of Health and Human Services
(2010), Judge Tauro concluded DOMA was also unconstitutional under the Tenth Amendment. The Tenth Amendment states in relevant part, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.”
²⁴
As noted previously, historically the states determine the necessary conditions for marriage within their boundaries because nowhere in the Constitution is there a granting of congressional power to make these determinations. Thus, a disparity exists when Congress enacts laws, such as DOMA, regulating behaviors that the states previously regulated.

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This case was brought by the State of Massachusetts because in 2004, the State decided to recognize same-sex marriages. In fact, as of February 12th 2010, Massachusetts issued marriage licenses to at least 15,214 same-sex couples.
²⁵
Unfortunately, because of DOMA, these couples' marriages are not recognized in all states, and individuals are unable to receive the unconstitutional, but federally provided, benefits granted to heterosexual couples. Despite the government's attempt to regulate local matters and interfere with your personal decision to marry whom you choose, Judge Tauro correctly decided the case. He first acknowledged that “family law, including ‘declarations of status, e.g. marriage, annulment, divorce, custody and paternity,' is often held out as the archetypal area of local concern.”
²⁶
Judge Tauro then concluded that by enacting DOMA, the federal government “encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment.”
²⁷

While these decisions are a great step forward for marriage equality and respect for the natural right of privacy in choosing a life partner, Judge Tauro errs in relying on the historical approach of recognizing state marital status determinations. The history of our nation does include state determinations of who may marry whom; however, just because a power is entrenched in history does not make it correct. Neither the federal government nor the state governments should interfere with private decisions to marry because those decisions are unique to individuals—they are made, figuratively and literally, in the heart of privacy. They are the essence of personal behavior immune from government—state or federal—intrusion or regulation. Without any interference from the federal or state government, you choose what college to attend, what career to pursue, where you want to reside; likewise, you should be free to choose whom you want to marry.

Another step forward has come with a recent federal district court's ruling that Proposition 8 in California is unconstitutional. California's Proposition 8, passed by voters in 2008, mandates that marriage can only be between a man and a woman. Judge Vaughn Walker struck it down on the basis that it violated the right to marry, or stated otherwise, that the right to choose a marital partner does not require the permission of your neighbors or the voters or the government. He enforced the right to be left alone.

94

Judge Walker stated that

the right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household . . . same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

Thus, there can be no legitimate reason for differential treatment. And as to the claim that such marriages were not procreative in function, Judge Walker noted that the state has never inquired into mixed-sex couples' capacity to reproduce in deciding whether to grant a marriage license. Such a world would be no less despotic or terrifying than the Third Reich, with its policies of eugenics and forced sterilization! This judicial giant reminds us that if it were not for an independent judiciary, which is committed to the Constitution, nothing would prevent a runaway majority from taking the liberty or the property of the minority. Government can't be trusted. And every once in a while, judges will stop the beast in its tracks.