The Marriage Amendment and American Tyranny

By Crispin Sartwell

If there is any zone of privacy that demands the respect of the state, then it includes marriage. Marriage is sometimes referred to as an "institution," but that's an odd application of the term. The Department of Defense is an institution. The University of California is an institution. A marriage is a private arrangement between parties committed to love.

A constitutional amendment can "define" marriage in any way it likes, but it can't keep people from making whatever commitments to one another they please. Or it can't, without assigning a police officer to follow each person around all day every day. Gay people have been getting married for decades in this sense, and ought to keep on getting married, whether or not the government asserts arbitrary powers over their most intimate arrangements and most fundamental rights.

The "marriage amendment," which defines marriage as an arrangement between one man and one woman and which President Bush is set to endorse in the face of legalized gay marriage in Massachusetts and San Francisco, asserts sweeping state power over the conduct of the intimate lives of all of us, gay or straight.

If some practical matters - health insurance, child custody, and property rights, for example -were not connected to government recognition of marriage, the correct attitude of gay people would be to snicker at the government's claims to control their contracts and their bodies, while making whatever commitments they like. The state has no interest in defining marriage, but it has a clear mandate to provide all the people under its jurisdiction with equal protection under the law. That is the basis on which the Massachusetts Supreme Court decided that gay marriage must be acknowledged by the state, and it could not be a better or clearer argument.

George W. Bush repeats like a mantra that liberty is a gift from God. Of course the movement to ban gay marriage is a religious movement. It is one of many illustrations that God as conceived by the Bush administration is dedicated to the destruction rather than preservation of basic liberties. All of us know that theocracy is not compatible with freedom, a fact which has been richly established by history if anything has been, and which was one of the basic insights of the founders of the American republic.

If God is the source of liberty, then God is a supporter of gay marriage. But even if God opposes gay marriage - a claim which cannot be rationally supported at all much less demonstrated - it does not follow that it ought to be banned by the state.

Amending the Constitution is required to ban gay marriage, because the document gives the Federal government no jurisdiction whatever over marriage. But the proposed amendment fundamentally contradicts other aspects of the Constitution. It contradicts the first amendment guarantees of freedom of religion and of association. It contradicts the ninth and tenth amendment limitations on the power of the Federal government. It contradicts the equal protection clause of the fourteenth amendment.

But more fundamentally, it asserts an absurdly intrusive power over the private lives of each of us, whether we are gay or not. Arguments parallel to those for the marriage amendment would justify government control over every aspect of our lives together - our friendships, our sexuality, our religious lives, our voluntary contracts.

The marriage amendment asserts government control of love. That is sad and impossible. And it is tyranny.

Crispin Sartwell's most recent book is "Extreme Virtue: Truth and Leadership in Five Great American Lives" (SUNY, 2003).