Why is all marriage unconstitutional?

Answer 1

All marriage is unconstitutional -- whether it is traditional marriage, or same-sex marriage -- because it violates the equal protection clause of the 14th Amendment. Marriage in the religious sense is a sacrament. But as a matter of state and federal law, marriage is a legal and economic partnership formed between two adults.

Current laws allow married individuals to operate a single economic unit. For example, in community property states every dollar earned by either spouse is considered to be equally shared between both of them. Federal tax laws allow the couple to be taxed as if they were a single individual. Various other laws presume that a surviving partner should inherit some or all of their spouses belongings if that spouse dies without a will, and that if one member is ill or otherwise incapacitated their spouse is who they would choose to make decisions for them.

However the rights and privileges associated with marriage are currently unavailable to pairs of adults who are not either of the opposite sex, or who are not engaged in a sexual relationship. In order for the government to differentiate between citizens in this way the Equal Protection clause of the 14th Amendment dictates that there has to be at minimum a rational basis for the discrimination. That rational basis no longer exists.

Up until relatively recently there were at least two rational bases for the government to permit this discrimination. The first was the protection of women. Traditionally women were not permitted to hold most professions outside the home. They were unable to vote. They were even barred from owning property. Without the protection of a spouse or other male relative they were at an extreme disadvantage economically. Marriage guaranteed that a woman's spouse would remain financially responsible for her welfare.

The second rational basis for marriage laws was the protection of children. A child born out of wedlock was considered the child of no one. Their biological father had no responsibility to see their welfare. In many cases they were even barred from inheriting property from their own mother. Birth in wedlock, in contrast, provided legal protections and placed requirements on the father to provide for the child.

The protection of women no longer provides a rational basis for the government sanction of heterosexual marriage. Women can vote, own property and hold almost all professions available to men. Women no longer require the protection of a husband to survive economically.

Similarly, the protection of children also no longer provides a rational basis for discrimination. Most of the laws that barred illegitimate children from receiving the same benefits from their parents as legitimate children were overturned in the 1970's as violations of the equal protection clause. Further, courts currently decide issues of child support almost entirely on a biological basis. DNA testing has permitted the certain identification of biological fathers, rendering the presumptions of paternity provided by in-wedlock birth antiquated and irrelevant. To complicate matters further, modern infertility techniques have permit outcomes that were entirely unforeseen even a few decades ago: the birth of children to long dead parents, or to parents who have never met, the birth of a child to a woman who is not the child's genetic mother.

The only remaining possible rational basis for a defense of marriage is that it is "traditional." That argument is intellectually bankrupt. If we must continue to adhere to rules that have lost all rational basis simply because "it is the way we've always done things" then all hope of adapting to changing technology and social norms is lost.

Another argument favored by proponents of traditional marriage is that it provides the best environment for the rearing of children. While this may have some truth when the marital relationship is a functional one, it is rarely true when the marital relationship is dysfunctional. Divorce laws have been liberalized in recent years due to the recognition that nothing is gained for society by forcing families to remain in dysfunctional relationships. Thus the premise that individuals choosing a domestic partnership other than traditional marriage must be discriminated against to encourage them to enter into a type of relationship they find dysfunctional or suboptimal is similarly insupportable.

Opening the rights and privileges of traditional marriage to anyone who wished to form a domestic partnership would open a world of possibilities and finally end discrimination against a wide range of family types. Homosexual partners be able to form households free from legal discrimination. Many single mothers could formalize their economic partnership with their own mothers, providing more economic certainty for three generation households raising children together. Siblings, cousins or even platonic friends could form domestic partnerships that guaranteed, for example, that the individual who agreed to stay home to raise children had legal rights to the income and employment privileges of the working partner. Elderly women who wished to have an economic partner late in life but were unable to do so due to a lack of a sufficient supply of male partners could form partnerships with a similarly-situated sibling or friend. And so on.

Such relationships would not be entered into anymore casually than traditional marriages, as they would involve serious financial consequences. Arguably, such partnerships formed between partners not engaged in a sexual relationship might be entered into with more deliberation and care than those in sexual relationships, since there would not be as many endorphins interfering with the partners decision-making abilities. And the same legal mechanisms already in place for dealing with divorce or inheritance could be used to equitably dissolve such partnerships.

Traditional marriage would remain a religious sacrament (with the criteria for inclusion or exclusion being determined by each religious community) and the interference of government would be removed from the equation.