If it were not for all this money in play, I doubt that we would we have seen two cases argued in the Supreme Court last week. Marriage would remain in the realm of the religious roots where it began.
Why has government gone to the lengths it has to provide these incentives for marriage and the benefits that go with it? It is an unrefuted fact, based on several thousand years of experience, that marriage is an essential foundational framework for a well-functioning and stable society. To be self-sustaining a society needs to reproduce to sustain itself. This is only possible with a man and a woman. It is not necessary for a child borne of that union to be raised by these two parents. Many children do not have this advantage. However, it also seems to be well-documented that children in a family unit that includes a biological mother and father united in marriage, a male and female, do much better than those in single-parent situations, in cohabitation arrangements or in situations with one biological parent and a step-parent.
Marriage has also been shown to individually benefit both men and women and, in turn, this conveys additional benefits to society. There is more physical security and less violence against women in societies with high marriage rates. Marriage also benefits men and society in corresponding ways. Finally, there are significant economic benefits to couples and society as a whole as a result of marriage where both the division of labor and economies of scale result in the more efficient use of human and physical resources.
For all of these reasons it has made sense for societies and government to confer specific incentives and benefits to men and women who marry. Does this mean that in every case that marriage produces these benefits? No. Some couples will not have children. Some unions undoubtedly should have never occurred. However, the broader social good has been well served by the marriage covenant by one man and one woman for thousands of years.
This brings us to the issue of gay "marriage" and whether the argument can be made that government should recognize same sex unions to the same extent as a marriage between one man and one woman. It could be that these unions would have similar benefits to society. Research and study might show that children in a household with a same-sex married couple is vastly superior to a single parent or cohabiting arrangements. It might even show that it provides similar advantages and benefits as with a married man and woman.
This is simply impossible to know right now. Gay "marriage" is too new. Its benefits and advantages to society have not been time-tested over thousands of years. In fact, the first country (the Netherlands) that legalized gay marriage did not do so until the year 2000. It is utterly untested. If there were new-born children placed in that environment they have barely gotten to the teen years. It will be many years until the effects of gay marriage on children and society can be properly assessed.
The fact is that the very early evidence on gay "marriage" is that it has caused an accelerating decline in overall marriage rates in the countries where it has been made legal. In effect, it has devalued marriage and the number of out of wedlock births has increased fairly dramatically.
Therefore, why would government provide equivalent incentives and benefits for something that is really nothing much more than a social experiment at this point? In particular, the government of the United States of America that can't currently afford its current Social Security, Medicare and Disability programs which use actuarial assumptions that only assume heterosexual marriages. If you broaden the eligibility for these programs, you also increase their long-term costs compared to today. Where is this money going to come from?
I know that there are many who would say that individual rights should control over dollars and cents. It's a fair point. However, if those advocates really believe this then they should be prepared to scale back the existing benefits under Social Security and Medicare to pay for the extension in the definition of marriage to gays. Thus, for example, if the long-term costs of these programs will increase by 4%, benefits for those currently eligible should be cut by 4% to keep these programs in balance. If people really believe this is about equal rights it should follow that other monetary rights and responsibilities should be balanced as well.
Of course, gay marriage advocates argue that if the federal government provides "married" status to gay couples it would actually be beneficial to the federal government's budget. They cite a 2004 study by the Congressional Budget Office that it would actually lower the deficit. The study states that this is principally because of two-income gay couples being pushed into higher married tax brackets and fewer people on food stamps, Medicaid and other social programs. These "savings" offset higher Social Security and Medicare costs.
I think this study is highly suspect for the obvious reason that human beings rarely do anything against their self-interest. Those who would pay more in taxes will be less likely to marry and pay the "marriage penalty". Those who will benefit from government benefits will be more likely to marry. You can take that to the bank.
Look no further than the plaintiff in the challenge to the Defense of Marriage Act case to see what I mean. Elizabeth Windsor, 83, brought the case because she stands to recoup $363,000 in estate taxes that were paid on the estate of her deceased "spouse" when she died in 2009. Money talks and people walk to that talk.
What I find most interesting is the rush to judgment on this issue. In that regard I particularly liked the questions that Justice Alito and Justice Scalia asked in the Supreme Court arguments on the constitutionality of the ban on gay marriage in California passed by the voters in that state.
Justice Samuel Alito
Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future.
On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
Justice Antonin Scalia
When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the 14th Amendment was adopted?What is really important to remember here is that there is a U.S. Constitution and that document has a mechanism that allows it to be amended if it is necessary. In that Constitution there is also the power of the Congress to change the Defense of Marriage Act.
There is absolutely no way that the U.S. Supreme Court should be overturning a constitutional provision of the State of California (which, by the way, was passed by a vote of the people after the California Supreme Court had miraculously found a right to gay "marriage" in the state constitution that no one else had found for over 150 years.)
What is so wrong with following the Constitution? I wrote about all of this in 2011 in "Making Amends With The Constitution". There is a process in place in our Constitution if we want to change the rules. It is not easy but it was not supposed to be easy if we were to carefully protect the rights of the majority and also assure that minority rights are also respected. It is instructive to look at what I wrote at that time.
Article I, Section 8 of the Constitution provides that Congress has the power to lay and collect taxes. Nevertheless, the income tax law of 1892 was ruled unconstitutional because it was considered outside the power of Congress. The 16th Amendment was ratified in 1913 to allow it.
There was nothing in the Constitution signed by the framers that precluded women from voting. All references in the document were to people, not men. However, the culture and custom was generally for only males to vote. Nevertheless, it took the 19th Amendment in 1920 before it became the law of the land. Interestingly, 15 states (beginning with Wyoming in 1870) granted women the right to vote before adoption of the 19th Amendment. Since voter eligibility was an issue left to the states (in that it was not specifically enumerated in the Constitution by the Framers) women in these states voted in both state and federal elections before 1920.
The point here is pretty clear to me. There was a time when the Constitution meant something. It was respected for what it was. So were the limitations that were carefully crafted into the document by the Framers. Even when there was pretty compelling language in the Constitution to bend it to the "current times" it was ruled out of bounds. Has something been lost?
Was it designed to change with time? Of course. That is what the amendment process is for (Article V). The Framers in their wisdom also considered this carefully. They did not want it amended for some passing fancy. Nor did they want a small majority to change the key foundations of the governing document to the detriment of a significant minority. Therefore, 2/3 of both the House and Senate can come together and propose any amendment. They do not even need the President to concur. Alternatively, 2/3 of the states can come together and call a convention to propose their own amendments and bypass Congress completely. If the amendment is ratified by 3/4 of the states it is adopted as part of the Constitution.
If the American people want a federal government with expansive power they can have it. They can allow gay marriage. Or ban it in all 50 states. They can require everyone to buy health insurance or anything else. They can ban assault weapons or ban abortions from coast to coast. There is a way to do it.
It just does not seem that these types of powers exist with the President or Congress with any reasonable reading of the Constitution. At least, this has been the interpretation for most of our history. Nor does it seem to be within the power of a handful of judges to suddenly discover fundamental rights that have somehow been hidden in the Constitution for over 200 years and start applying them to 308 million citizens by fiat.
That is why there is an amendment process to the Constitution. It is hard and it was meant to be hard.
Look at this map and tell me if there is any way that the federal judiciary or the federal government should be doing anything about the subject of gay "marriage"? This issue should be completely out of bounds for the federal government right now. Each state can decide. That also allows us to see the effects of gay "marriage" on society. If it truly adds value, time will tell. However, the risk is too big should it devalue an institution that has been the cornerstone of successful societies for thousands of years.
I am all for equal rights. I have no problem with domestic partner legislation on the subjects of transfer of property, hospital visitation rights and the like. However, when it goes beyond "rights" and moves into "benefits" it is a different issue.
There simply is no "right" to government benefits or money. The government discriminates on this subject all the time. For example, ExxonMobil and Solyndra both produced energy (or at least Solyndra attempted to.) However, the federal government decided there were greater benefits to society from "green" energy than with fossil fuels. Solyndra and other solar and wind companies got benefits that ExxonMobil did not. That was discriminatory. Lehman Brothers went bankrupt and the Bank of America was bailed out. That was discriminatory. The same goes with the Internal Revenue Code. There is line after line where one person or corporation gets a benefit that someone else does not. The rationale is that there is a governmental or societal benefit in doing so. It is discriminatory to those that don't get the benefit but there is supposed to be a larger public purpose.
My view is that before gay unions are to be provided government benefits it must be shown that there are demonstrated benefits to society in order to justify these additional costs. We are not there yet from everything I have seen. If you look at the map of the United States this is also the overwhelming opinion of the vast, vast majority of the states in this country.
My personal opinion is that I am doubtful that a beneficial case will ever be made for gay "marriage" if if we look at the lessons of history. Any society that has openly adopted homosexuality has inevitably fallen apart. However, I am always open to new information and new facts. Just show me the facts before you expect to see any government benefits or money.
In the meantime, allow each state's citizens to decide. Not the courts. That means that California's ban on gay marriage should be allowed to stand. If the citizens want to amend that out of their Constitution and replace it with a new right, let them do it. At the same time, if a group wants to attempt to ban gay marriage in the United States then there is a way to do that as well through Constitutional Amendment. That is what America is all about. It is not supposed to be about nine Supreme Court justices finding things in the Constitution that no one else has found in over 220 years.
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