By Darin Chappell
In 1996, with President Clinton’s signing of the Defense of Marriage Act (DOMA), a breach of American federalism took place with little notice. A few of us objected to the Act, even though it codified what we believed to be accurate, that marriage is reserved as being between a man and a woman. The objection was not that marriage would be thusly defined but that the national government would be involved in the defining process at all.
Prior to that, the question of marriage and its boundaries was primarily left to the states. A notable exception was Loving v. Virginia (1968), which decided against the states’ ability to declare marriages between mixed-race couples illegal. However, that was a civil rights question that did not alter the core definition of marriage between a man and a woman. The matter of what constitutes a marriage was left untouched, and the states remained authoritative.
However, DOMA established the national government as the new authority on the issue, overriding the states after 220 years of precedent. While many on the right were happy with the outcome, not realizing what they had lost in the process, DOMA solidified the ability of the national government to change the definition of marriage as quickly as it had been set.
In 2015, the Obergefell case was handed down, deciding that same-sex unions were to be on par with heterosexual marriages via the Due Process and Equal Protection clauses of the 14th Amendment. Had DOMA not been in place, SCOTUS would likely have never ruled on the matter, as the question of marriage is entirely absent from the text of the U.S. Constitution. Indeed, the 2013 case United States v. Windsor, a predicate to Obergefell, found that DOMA was in violation of the Fifth Amendment via the Due Process clause in that DOMA precluded same-sex marriage in its Section 3 wording. In short, no DOMA, no Obergefell.
Herein lies the insidious nature of the long game played by progressives and (largely) misunderstood by the right. Be careful of that for which one asks! When conservatives ask the national government to “reign thou over us” in matters previously foreign to Washington, D.C., control, the states lose a degree of power in ways usually unforeseen. While we get to toss the pebble into the pond, we never control the direction or extent of the resulting ripples.
Enter the Respect for Marriage Act.
Wherein DOMA was the camel’s nose under the tent; this latest effort would have the creature entirely inside, crowding all others out into the cold. Progressives, and the Republican senators that joined them, would have us all believe that this Act would merely ensure that all rights are equally protected. However, without an amendment to protect religious conviction on a definition of marriage, religious organizations will be held accountable to the national government if they refuse to perform or recognize marriages that would violate their conscience on a definitional basis. At its very core, this Act violates the First Amendment’s prohibition of the national government establishing a religious mandate.
The question boils down to whether there is a right for one to be married. Progressives would have us believe there is, but the Constitution is silent on the matter. “Rights” are those concepts of life that are enshrined in the Constitution as a positively protected idea. Concepts the government will not let one do without. You have the right to an attorney and not to self-incriminate. However, there is no right to be married. If one is unable to attract a spouse for whatever reason, the government will not issue a spouse to fulfill that supposed right.
One is at liberty to be married (or not), but only within the legal parameters established. One is free to marry whomever one chooses, but only so far as laws of age requirements, laws against polygamy and other restrictions permit.
Marriage is not a right.
From a governmental perspective, liberty is a negative concept in that liberty is the absence of governmental control. Whenever government acts, unless it is to limit itself, liberty dies little by little. DOMA, Windsor, Obergefell and now the Respect for Marriage Act are all efforts to chip away at the liberty the states and their citizens have held for over two centuries. The only way to reverse this trend is to completely remove the government from the equation.
Laws concerning inheritance, medical access, shared assets and other civil questions may easily be put in place, if not already present, without forcing a one-size-fits-all definition of marriage upon a religious community with vastly different perspectives on what is doctrinally permissible. If people do not accept the doctrinal definition of marriage found in a specific church, they should go elsewhere to be joined. Compelling a religious body to embrace a union the organization finds intolerable is infringing on those individuals’ right to freedom of religion in favor of the non-existent “right” to marriage.
Let liberty thrive by removing government from the questions it was never intended nor equipped to answer! It’s time to divorce government from marriage.
Darin Chappell is executive vice president of Veterans in Defense of Liberty® and a Missouri state representative elect.
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