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Marriage is Anything but Everything–Addressing the Argument of Separate but Equal

October 13, 2009


What  About Separate but Equal?

One of the most prevalent arguments I have seen in recent weeks against Question 1 in Maine is that the proposition is wrong because it would bar a whole group of people from marrying.  They argue that partner laws and civil union laws partially correct that situation but don’t go far enough. They claim that “separate but equal”, even with the most liberal of laws, isn’t enough. They argue that being able to “marry who you love” is a fundamental right, and the “separate but equal” treatment fundamentally violates that right.

This argument not only mischaracterizes the issue, but does so in a way that is calculated to put supporters of traditional marriage on the defensive. The right to marry has never been an unfettered right. Even today, we maintain important restrictions on the right of individuals to marry. (For example, not permitting marriage between close relatives or prohibiting someone from being married to two people at the same time).

There is nothing in the text of state constitutions or even the United States’ Constitution, that explicitly provides that same sex marriage is a “fundamental right.” Nor is there anything in our nation’s history or traditions that establish same sex marriage as a “fundamental right.” Only a handful of states even allow same sex marriage and all of them only recently “discovered” this right.

While, as a society, we may want to add individual rights, those rights are not necessarily “fundamental rights” and, in a democracy, weighty decisions such as creating new rights should be decided by a vote of the people—not judges.

The “separate but equal” argument is also misleading because marriage between a man and a woman does not treat people separately. If Question 1 passes, no one will be prevented from marrying. Individuals in Maine will be free to marry so long as they marry someone of the opposite gender and so long as the marriage does not violate other long-standing regulations governing marriage in Maine.

Those who persist in arguing for the “fundamental right” to “marry who you love” face an additional hurdle. If everyone has the right to marry who you love, why wouldn’t three women who love each other be allowed to marry? What about polygamous marriage? Shouldn’t consenting adults in these types of relationships have the right to marry?

If same sex marriage is permissible because an individual has the right to marry whomever he or she loves, the only intellectually honest reason for prohibiting these types of extreme alternative marriages is that they are not socially acceptable. But once you accept that society has a right to limit some marriage relationships , you recognize society’s right to also define marriage in a way that benefits society as a whole.

And that really is the crux of the whole argument.  Marriage can have limits.  Marriage MUST have limits, or it will cease to be anything but everything.

(hattip pomegranate apple blog)

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