Wednesday, November 26, 2008

Gay Marriage Wins By Losing the Prop. 8 Battle

Wednesday, November 26, 2008 | Posted by Chris Waner | Edit Post
Over the last several weeks gay-rights proponents have been staging protests and rallies in opposition to the outcome of Prop. 8, the California constitutional amendment banning gay-marriage; these protests, from my standpoint, border on incomprehensible. Rather than protesting the outcome of the Proposition 8 vote, gay-rights activists should be dancing in the streets, and so called traditional married couples should be petitioning for their emancipation.

On the surface Prop. 8 appears to simply limit the rights of gay couples to marry; however, from another perspective the Prop. 8 vote in California actually limits the government's power of licensure, hindering its ability to extend marriage licenses. Keep in mind that the legal definition of a license is:

The permission granted by competent authority to exercise a certain privilege that, without such authority, would constitute an illegal act.

In other words, marriage in all fifty states is illegal unless the State grants its permission.

The truth is that the State and Federal government have gone mad with the power of requisite licensing. Without a license citizens of the US cannot fish, hunt, marry, drive, provide health services (even non-medical), or practice law; they cannot manufacture products, build structures, provide retail or wholesale goods, start a business, trade, or be a travel or real-estate agent; in some states even selling flowers, selling your services as an interior designer, or running a public pinball machine are strictly prohibited without a State issued license. The ugly truth is that in many cases licensure is a hidden tax on consumers and a boon to government at the citizens' expense; indeed, marriage licensure alone is a $100,000,000 a year industry--with 2.2+ million marriages per year at an average cost of $44 per license.

And what does the government provide in return? Two things: firstly, it provides the chaos which naturally arises as the state attempts to define the nature of a legally binding contract that it did not initiate but requires by law. And second, it provides subsidies in the form of tax breaks and benefits to married couples. The latter might sound good, but the details are troubling. These tax breaks and benefits are a form of wealth redistribution doled out according to the policy objectives of the State and Federal government and is paid for by everyone while directly benefiting only those who are married.

Further, a state marriage license embroils citizens in undue contractual relationships with the State and sometimes the Federal government. One of the best anti-licensure arguments that I've read comes from a rather unlikely source; Pastor Matt Trewhella writes in a thorough and well-thought-out article addressed specifically to Christians:

When you marry with a marriage license, you grant the State jurisdiction over your marriage. When you marry with a marriage license, your marriage is a creature of the State. It is a corporation of the State! Therefore, they have jurisdiction over your marriage including the fruit of your marriage. What is the fruit of marriage? Your children and every piece of property you own. There is plenty of case law in American jurisprudence which declares this to be true. [source]

Truly, nothing gives the State the right to make illegal the consensual contract of marriage, except for that which the citizens of the states allow. For this reason Prop. 8 was an overwhelming success. It rightfully limited the government's too-often-abused power of licensure.

If there was any problem with Prop. 8, it was that it did not go far enough. Certainly, another amendment is needed in California, and all states for that matter, that would deprive the State of the power to prohibit marriage without its consent. The right of contract is one that ought to belong to the free citizens and to no other. To the gay-rights activists I say, take to the streets, though not in protest, but in celebration; and thank the "traditional" married couples and religious organizations that funded the Vote Yes campaign, for there in lies your protection from overreaching State power.

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