So deeply embedded in our society is this privilege that a thick network of legal rights and duties has been woven to reinforce it--over a thousand federal and 400 state laws by a rough count from the General Accounting Office. They comprehend everything from parents' duties to their children, adoption, estates and inheritances, survivor benefits, immigration rights, domestic violence protections, and divorce settlements, to customs claims, lease renewals, tax laws, judicial evidentiary immunity, and many other areas. No other privileged relationship has been so marked out by legal benefits and obligations to prove its centrality for free society.
As Stanley Kurtz demonstrated in Beyond Gay Marriage, the movement to redefine marriage to include homosexual unions brings in its wake demands to legalize polygamy, polyamory (group marriages), triple parenting, incestuous partnerships, and worse. Expanding marriage to include same-sex partnerships implies the abolition of the marriage privilege, as proponents of these various arrangements clearly understand. Andrew Sullivan and other gay activists are angered by what they say is the equation of gay marriage with other unnatural unions, but no one has claimed these differing sexual arrangement are the same. The real issue in common among these relationships is the principle that is supposed to legitimize gay marriage: personal affectional preference. But marriage is not capable of being radically redefined. Reason itself, fixed in the nature of the relationship, imposes limits. Transcend the limits, and, as Kurtz shows, the marriage union dissolves as a social and legal institution.
For most of its history, the Supreme Court held that traditional marriage forms a family unit which is the fundamental building block of free society. The forms of self-government could not survive without it, so any weakening of the marriage privilege undermines free government. To preserve republicanism, the federal government is obligated (Art. IV, S. 4) to strengthen its basis in the marriage union.
The states' power to enact marriage laws presupposes the purpose of securing the marriage privilege, not weakening it. By the terms of the Fourteenth Amendment, the states may not do so. Here is why.
MOST OF US KNOW the Fourteenth Amendment's Due Process and Equal Protection provisions. Constitutional jurisprudence is filled with cases involving state actions denying one or the other. In a landmark 1873 opinion known as Slaughter-House Cases, however, the Supreme Court refused to recognize the butchers' business in Louisiana as a federally protected "privilege" under the Amendment's Privileges or Immunities Clause. The Amendment had been ratified after the Civil War to allow the federal government to protect the civil rights of ex-slaves. The case had nothing to do with marriage as a "privilege." The consequence of Slaughter-House was to turn to the other great provisions to enforce civil rights and liberties.
