On May 8, the people of North Carolina opted to amend the state constitution (by a rather large 22-point margin) such that any union outside a marriage of a man and a woman would be unrecognized by the state. The amendment inspired a rather heated debate about the role of government in marriage. Many opponents of the amendment argued that ratifying the amendment would amount to an unprecedented government invasion of the bedroom. While it was kind of interesting to see the same people who, not too long ago, were rallying support for passage of ObamaCare oppose the marriage amendment on these “small government” grounds, I think the point deserves discussion.
First, I think it’s important to keep in mind the distinction between wanting a small government and wanting no government. Small government conservatives recognize that there is a legitimate role for the government in certain, specified areas. The State, in some form or fashion, has been involved in the creation (and dissolution) of marital relationships since classical times (and probably longer than that). So, it’s not as if government involvement in marriage is anything new. Indeed, if one takes the Aristotelian view of seeing the household as the foundation of the polis, the State has a vested interest in defining what the household is. I don’t believe that there is anything necessarily “un-conservative” about setting a definition for marriage.
Second, the amendment does not ban gay marriage. Rather, it simply withholds state recognition from such relationships. People are free to cohabitate however they like. Fortunately, North Carolina is not Iran. So, gay couples do not have to worry about having the morality police show up at their doors. However, if two people choose to live in that manner, they are not eligible for the benefits that a married couple can receive.
But it’s not as if gay couples are the only people subject to this “discrimination.” Polygamists also fail to qualify. Indeed, single people are not even eligible for these benefits. It is similar to a business that decides to incorporate versus the one that doesn’t. If the business entity fulfills the requirements set out by the state, it can incorporate and receive certain benefits as a result of that. There’s nothing inherently discriminatory about the state’s different treatment of the sole proprietorship and the incorporated entity. They’re just different. Of course, I have the sneaking suspicion that a few tweaks to the tax code could resolve even this problem. If the end game is equal treatment between heterosexual couples and everyone else, I think that adjusting the offending laws, rather than attempting a redefinition of marriage, would be the better way to go. It’s a little more honest and less likely to inspire the same response that marriage amendments provoke.
Some people have also argued that the amendment itself may be unconstitutional. However, I think that considering that the Constitution fails to mention marriage, this would seem to be an appropriate application of the Tenth Amendment. There is some interesting discussion concerning the “full faith and credit” clause. Theoretically, a marriage recognized in one state would have to be recognized in the other. However, the notion that North Carolina must adopt another state’s definition of marriage seems a little absurd on its face. Why should the government of Massachusetts dictate what the government of North Carolina must do? Interestingly, marriage is not the only area where this problem arises. Consider the issue of Concealed Carry Reciprocity. If I have a Concealed Carry Permit issued by the State of North Carolina, (some states recognize that permit while others don’t), I could carry my gun in South Carolina, but not in New Jersey. Actually, Illinois doesn’t even issue Concealed Carry Permits. To my knowledge, no court has declared this arrangement unconstitutional, and I think it could even set the model for a Gay Marriage Reciprocity regime.
I don’t think there is any sort of conservative objection to states’ setting marriage definitions. There is a legitimate role for the government in setting such definitions, and I believe it is infinitely more preferable for individual states to set these definitions than to have either Congress or the Supreme Court make these determinations.