by Steve Palmer, Pennsylvania Tenth Amendment Center
Introduction
One theory about the origin of the children’s poem, “Jack and Jillâ€, is that it was a stealth protest against actions by King Charles I of England during his reign from 1625 until his execution in 1649. Details about what happened are sparse on the web, but apparently, when the Parliament refused to allow a tax increase, Charles responded by reducing the volume of a standard unit of measure, “the jackâ€. In the measurement system of the time, two “jacks†comprised “a gillâ€. All other things being equal, this volume reduction would have increased revenue from the existing tax law.
The theory is that the people were afraid to complain openly on the topic, so they devised the poem, “Jack and Gill†as a stealthy form of protest. Sometime later, Gill became Jill.
(incidentally, it’s off topic for this article, but how different is Charles’ action from today’s dollar inflation by the U.S. Federal Reserve?). 
This story brings to mind two ideas which are relevant to the “same sex marriage†debate.
First is the idea that language evolves. Language is a tool for enabling communication among people. Over time, as our societies change, language evolves with them so that it can continue to accomplish its purpose. “Gill†becomes “Jillâ€. “Superhighway†changes from a slab of blacktop and concrete to a network of copper and fiber-optic cables. Consequently, efforts to control language are efforts to control thought.
Second is the propensity for government to meet its insatiable appetite for income and control by bending the rules and meddling in places where it doesn’t belong. Parliament had approved a tonnage tax, but it wasn’t yielding enough revenue. King Charles couldn’t get the people’s representatives to approve a tax increase, so he nudged the measurement system to make an end-run around the people.
Two Forms of Thought Control
For most of history, the word marriage meant neither a personal choice, nor a union permitted and controlled by the state. It was a financial arrangement between families. As our society evolved, the word marriage came to apply to an individual choice. Even in nineteenth century America, the word was used by some to represent polygamous relationships. In some cultures, unusual relationships are still included, today, in the definition of the word.
Somewhere along the way, in our culture, the word, “marriage” was captured by the state. Now, because the word has been captured, two groups of people are engaged in a massive struggle to forcibly control the word’s definition.
Etymology is the study of the history of words, where they are from, and how their form and meaning have changed over time. – wikipedia
Without interference from powerful institutions, it is the nature of words and language to change in meaning over time. The current debate over same sex marriage is an effort to exempt the word, “marriage†from that natural linguistic process.
Worse! It is an effort to dictate our thoughts to us. For some of us, the word, “marriage†means a union between a man and a woman. For others, it means a committed relationship between consenting adults. Like Charles changing the size of the jack, whichever belief we hold, there are people who are actively working to coerce — not persuade, coerce — us into changing our beliefs.
Normally, there is absolutely nothing controversial about words with multiple meanings. We manage to survive as a society with all sorts of multiple meaning words. We even have a name, homographs, for these words. For instance, do I play catch with a ball or do I attend a ball? I don’t need the state to tell me what I mean when I say, “ballâ€. If there is additional need for clarity, linguistic conventions might gradually and peacefully replace “attend a ball†with “attend a partyâ€.
Rather than let linguistic nature run its peaceful course on the meaning of the word, “marriage”, two groups of thuggish activists now want to short circuit that process and tell us all what to think. No matter which meaning they promote for the word, this attempt at thought control is objectionable. Personally, I will not have my thoughts dictated by force of law from either of these groups.
Marriage is a Private Matter, Between Individuals
In the debate over whether to legalize gay marriage, both sides are missing the point. Why should the government be in the business of decreeing who can and cannot be married? – David Boaz
The ninth amendment to the U.S. Constitution says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.†And the tenth amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.â€
In light of these two amendments, and the fact that regulating marriages is not a Constitutionally delegated power, it should be clear that the power to regulate marriage is reserved to the States, or to the people. It should also be clear that the right to be married is retained by the people.
As Boaz points out, if marriage were privatized, the government’s role would be limited to contract enforcement. Several standard contracts would likely emerge and people would be free to choose the contract of their preference. As Wendy McElroy wrote, “A legal marriage is whatever contract for a committed relationship is agreed to by those involved.â€
This model is the only one that accommodates freedom of thought and action. Beyond enforcing the terms of a voluntary contract, there is absolutely no reason why 
government should be enforcing or subsidizing anyone’s morality or attempting to control anyone’s thoughts.
As with all questions of law, there are two levels of government to consider.
Although I believe it is brutish, I must grudgingly admit that state governments are authorized by the Constitution to legally define and regulate marriage. Contrarily, the federal government has no Constitutional voice on the matter, whatsoever.
Conclusion
Same sex marriage is contentious, primarily for two reasons. 1.) State and federal governments have created financial incentives to promote marriage, including tax breaks and other subsidies; and 2.) Two powerful groups of people are aggressively trying to dictate our thoughts to us.
The position of liberty in this debate is clear. Marriage should not be a matter of interest to the state, except in the realm of contract dispute. Instead of working to establish thought control over one half, or the other, of our country, people should be looking for ways to stop subsidizing an individual’s private decision and to free the word, marriage, from institutional capture.
While the states do have the legal, Constitutional power to legislate on the matter, they are ethically wrong to do so. The people should be free to utilize contracts and language of their own choosing.
While I do not like the idea of state governments defining marriage, this issue demonstrates clearly another reason why the Tenth Amendment is important. Different states can legislate the matter differently, and the people can “vote with their feetâ€, withdrawing the consent of the governed, on issues which are important to them. In the winner take all world that would exist without the Tenth Amendment, this important capability would be taken away from us!
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
I agree with this approach but the problem is with social conservatives who can't let go of their perceived right to dictate the morality of other people and statist left (both sides are statist to a certain degree) who can't stand the idea that individuals make the choice for themselves about whether or not they should accept gay marriage in their own lives. They fear that most people will use their free choice and discriminate against it which will destroy gay marriage overnight.
I agree with this author that a marriage is nothing more than a contract where two parties agree to something. I think gays should do this but why not non-gays? I think it would be a great idea to skip the ceremony and just sign a contract agreeing to be faithful and if you break that then their will be financial penalties associated with that deed. This approach is very non-romantic which is why most women won't do it but is it any less unromantic than getting a marriage license that says you are blessed in holy union Marriage License C#GG11223?
I also agree that manipulating language is a form of thought control which is incredibly insidious because only a person of above average IQ can spot it and only if that person only has the time to think about it. Its scary when you think about how powerful word manipulation can be as a tool for mass manipulation.
You're missing the point! Marriage is a covenant relationship based on scriptural beliefs! This is where the concept of marriage originated and it's where it should have stayed. Ever since our government first began opperation there have been those who have worked to expand its power and influence. No where can this influence be expanded to a greater degree than in the home. By getting mothers out of the house and replacing them with television and "after school care" the kids are being raised with little or no family foundation. By eliminating home schooling and sending kids to government indoctrination centers starting at age 5 (soon to be younger) the kids are taught what the government wants them to know – that the government is all powerful, and not necessarily what parents would want them to know.
People should never have "tolerated" government getting involved in marriage. It was the dominion of the clergy. Had this principle been adhered to, there would be no debate today. Government has a responsibility to treat all equally but it has no business weighing in on the marriage issue!
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some good thoughts here – government has no business – agreed. Now what if a church or a religion you do not belong to decides to perform same-sex marriages….would you want the government to step in and stop them?
For you, yes it is but not for everyone else. While you may believe that people started with Adam and Eve and that marriage was started there, there are others who do not. Judeo-Christian values may point to one man or one woman, but there are and have been other cultures that have had "marriage" with different beliefs on what that entails.
I believe that each individual Church should simply decide what they are willing to recognize as a proper marriage and refuse to recognize what is forbidden against their beliefs. Get the government out of it, and allow people to make their own choices, as the article says. Allow people to have their secular marriages or perhaps a Christian marriage under a body that is much more liberal than yours. Then your church can simply say that they do not recognize it (nor should you have to.)
When you are trying to keep people with different values you are simply trying to dictate the meaning of the word. Marriage has become a string of characters that represent a committed relationship. Would you feel better if homosexuals (or any other abnormal marriage) did not use the word marriage?
At the same time other people who oppose gay marriage have the complete right to reject the concept outright based on their own beliefs. To say they can't interferes with the freedom of thought that they possess. This gives them the right to define marriage by those thoughts that they have. Surely you can't be opposed to that?
You correctly champion that people have choices but so do other people. They should not have to deal with something they feel is completely immoral. They have the right to use their property as they want and discriminate against them by this belief. Should you forced to deal with something you find immoral?
You can go directly to the court house and skip any religious involvement in marriage. Marriage licenses are registered in town halls not church halls. Even the church recognizes this. At the wedding preformed at a church the minister must say "by the power invested in me by the state of California" Marriage is a legal contract. That is why you must get a lawyer to get a divorce and not a priest.
That being said. The 14th amendment states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "
I think it would solve a lot of problems if we skipped the government aspect of our marriages and just did the legal contract theory this way anyone can get married and if it doesn't work out the contract will have its own exit clause which stipulates who gets what. It sounds more peaceful than a messy court battle.
That means that the state/government must treat gay and lesbian relationships with equal protections. If heterosexuals are afforded protections gays and lesbians must have the same ability to protect each other. The only way to deny same sex couples protections is to deny protections to opposite sex couples also.
The 5th, 9th,10th, and 14th amendment are a symphony. The only way to follow all of them is to allow gays and lesbians to get married.
The equal protection clause only applies to negative rights and not positive rights. The word protection implies any government law that stands between one person and the positive actions of another such as protection against murder. The law must be applied equally in those situations but that doesn't apply to laws that don't protect such as driver licenses. Should we actually demand that drivers license be given out equally to seven year olds in order to avoid age discrimination.
You make it sound so simple, but interpreting the 14th amendment is not so cut and dry. Allowing heterosexuals a marriage license and the extra privileges that go with that license, while not permitting homosexuals the same is unequal and discriminatory. When you give rights to one group but not to another, to avoid crossing the due process and equal protection clauses you should at the very least pass the “rational basis test.” If the law does not “reasonably relate” to a “legitimate” government interest, then it very well may be unconstitutional. So I suspect that the reason why people are not taking to the courts to allow seven year olds driver’s licenses has to do with this. The government has more of a legitimate reason to not allow seven year olds a driver’s license than to not allow homosexuals a marriage license, which is probably one of the reasons you see more sexual orientation court cases out there. This is in the courts not because the government wants to control your minds with 1984 Orwellian Newspeak thought control, but because there are legitimate constitutional questions arising.
Point out where it says you can't discriminate in the constitution. Their are only a few areas where it says discrimination is illegal such as voting discrimination and only over a few areas such as age or race.
Your reasoning breaks down because due process simply implies that any action the government takes must be done in accordance with the law. It can not act outside the law which is nice since it prevents the government from acting at will. Many NAZI and fascist believed due process was a waste of time and acted beyond the law which is why they called it a dictatorship.
I don't think it says a law is unconstitutional if it doesn't pass the 'rational basis test'. I've checked and their isn't one. The danger of the 'rational basis test' is how do we decide what is rational. Many different people have different points of view about what is rational so how do we decide? We can go by what the judge thinks is rational but that wouldn't be democratic since it would ultimately violate the democratic process that created the amendment. Maybe we should go by what the people who wrote the amendment thought was rational since it was their rationale that created it.
@TheUnknownAmerican – I’m not sure how to address you. You seem all over the place. You asked me to point out discrimination in the constitution, and then you conceded that there were instances where discrimination is recognized. Then you said my logic was flawed without really explaining how. You gave a definition of a term, but failed to really tell me how I was wrong. Finally, how or why you saw it appropriate to bring Nazis into this discussion as if they were relevant is beyond me. Let’s keep things germane, shall we? I do not like wasting my time.
@ Philosopherking – I have a lot more respect for you. As far as the rational basis test is concerned, it is sometimes referred to as “rational basis review,” or simply “rational basis.” Here is a link defining it http://legal-dictionary.thefreedictionary.com/Rat…
Now, while using this test to actually overturn a law is rare, it is not impossible. I do agree with you that people can interpret things very differently. But, I do not believe we can just ask whoever wrote the amendments how they felt about what they did at the time for very obvious reasons. Most of them are dead. So, interpretation on some level is a necessary evil. I would rather have a judge doing it than some random person. As far as that being undemocratic, well the very amendments (and maybe even judicial review on some levels) themselves were created to limit majority power. Are the amendments in their very existence undemocratic? Whether they are or not, I believe that they need to be there to protect us from the occasional hiccup of the majority.
Your 'law dictionary' is not in the constitution and to use it would be unconstitutional in itself since the only way you can amend the constitution is through the amendment process. The people are the sole deciders of the constitution and not judges. The powers that the judge have come from the constitution itself just like any other government official. They have no power to freely overturn the people when they feel the people have a 'hicup'. They can only overturn any law when it violates the constitution which is something the same people wrote. This puts the people squarley in charge of the entire process.
You actually have to think for a minute because not all forms of discrimination are illegal under the constitution so just to say discrimination of any kind is illegal would not be accurate. The constitution can intercede only in those specific areas where it says discrimination is illegal such as voter discrimination.
I felt the need to bring in NAZIs because their seems to be a lot of people who assume government can act beyond the law to do whatever it needs. Government who acts on its own authority versus just being confined to the enforcing the law is a dictatorship since the law in itself defines where the government can act. Assuming the govt. can act whenever it wants to end discrimination that is legal under the constitution would be a dictatorship since it would be govt officials personal authority and not their legal authority that they are acting on. They are two different things.
@theunknownamerican – please stop wasting my time. I think this may be the last time I acknowledge you. You are putting words in my mouth when you imply that I said all forms of discrimination are illegal under the constitution. Some forms are definitely. Some forms aren’t definitely; here I even agreed with the Philosopherking on the topic of age discrimination and driver’s licenses. Some forms are more ambiguous.
As far as the Nazi thing is concerned, I find it is often a tool brought in by those who do not have the ability to make a coherent and convincing argument. They say things like Hitler and Nazis in an effort to artificially strengthen their argument. They create a straw man, then relate him to a scary group most people fear and hate, and they think they made a valid point. What’s worse is that they can really stretch to make these connections and completely ruin the discussion by going way off topic. In fact, I’m not too happy that you’ve caused me to go off topic because of this. Example: “Did you know that Bob breathes air? Guess who else breathed air….HITLER!!! Bob must be a Nazi!!!” All right so that example was a bit of a stretch itself, but it was so to make a point. When you bring up unrelated or very, very, very loosely related things in an effort to tie them to something people loathe and fear, I will take you about as seriously as anyone who would voice the above example. I think it is more plausible to believe that people use talk of Nazi’s in an effort to control people’s minds and manipulate their actions more so than the definitions of a legal contract like marriage. If you are going to discuss something with me, I need you to comment directly and specifically on what I am saying. If you believe I am one of these people "who assume government can act beyond the law to do whatever it needs," then prove it based on what I say.
@PhilosopherKing – Look there were sources for that term at the bottom of that page if you really doubt the existence of that test. I’m not here to mislead you. It wouldn’t be worth my time or yours to do so. But if you still doubt that the test exists, you can read this http://caselaw.lp.findlaw.com/scripts/getcase.pl?….
You will clearly see that the justices involved considered rational basis.
The people are not the sole deciders of the constitution (well, you could argue that indirectly, and in some cases very indirectly, they are). Judges do not just freely overturn the decisions of the people. These rules and precedents have been built up so that judges do not abuse their power. It is definitely constitutional for judges to use these precedents. Would you rather them ignore the past and decide on how they feel at the time? That could easily lead them to abuse their power. At least now they have to make a darn good argument for anything they do.
You mention the people a lot. And while they are important and certainly the founding fathers thought so, they are not always right. If you read about the founding fathers, you will find that while they believed in democracy, the feared the tyranny of the majority. This is the reason they put limits on our democracy. They were genius for doing so, because the people can be easily led astray by things like mob mentality and demagogues. You mentioned in an earlier post that this whole thought control thing is “incredibly insidious because only a person of above average IQ can spot it and only if that person only has the time to think about it. Its scary when you think about how powerful word manipulation can be as a tool for mass manipulation.” If you can say something like this, surely you know and can understand how a raw, unlimited democracy can lead to terrible atrocities committed by the people. Democracy is great, but the limitations placed upon it by our founding fathers were necessary. I’ll leave you with this quote by James Madison from the Federalist Papers, “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” Even the “many” can be a tyranny. The people should not be “squarely in charge of the entire process.”
You are using another tactic of thought control by saying that my particular thought about the 14th amendment was to simple to possess and then you handed me your more complex thought of what you thought. By implying that a thought is more complex than another you give it more legitimacy but what you don't know is that the truth gives a thought more legitimacy and not its complexity. The sky is blue is a very simple thought but does that make it untruthful?
Although all libertarians, that I am aware of, agree with this rational proposal–the problem is that is not going to happen anytime soon–meanwhile there are some people hurting in a very real way–including economic.
There was a proposal in California last year to privatize (and was even suggested by a California Supreme Court Justice) The initiative got absolutely nowhere–both gays rights and social conservatives rejected it–it was even rejected by Outright Libertarians–a group of gay and lesbian libertarians.
The problem with libertarians always promoting this as a solution is that it is , in real time, just a cop out. Since privatization is not going to happen any time soon –they can still hang with their homophobic friends while at the same time being sorta hip about the whole thing. It is rather disingenuous to tell gay folks that they have to wait until the dawning of the Age of Libertopia inorder to obtain their full rights as first-class citizens.
I hate to tell you this but gay marriage is not legitimate. You may call me all the nasty names you want and that is your freedom of thought but did you know that that freedom only extends as far as your own skull. In other words, telling other people what is right or wrong for them not only violates the christian faith of not being judgemental but also violating other people's freedom of thought since you are declaring a right to determine what other people should believe. This is a right you do not have.
Now lets say you privatize marriage completely. The problem with this is that people would have the individual right to either accept or reject those marriages in their own personal life. This would be to much of a dilema to let the natural democratic process take over in society so the left, who is a great believe in individual liberyt, would then tell every individual that they can't make that choice all because they believe in individual freedom.
so…you want to use the government to prevent them from being married or together? Sounds kinda thuggish to me.
The essential point for TAC, of course, is that the constitution does not authorize the federal government to be involved in this issue. Now if you want to make rules in your own state on marriage, so be it. Keep in mind, though, that people in other states – or even yours – might want something different. It’s the beauty of federalism.
I hate to get into a side topic, but I resent everyone who opposes homosexual marriage or morally disagrees with homosexuality being referred to as homophobic, but for a different reason than you'd expect.
Both my mom and my wife have lived with severe arachnophobia. Other friends and relatives of mine have lived with other phobias as well. To equate disagreeing with something with a phobia is to minimize the horrible suffering that genuine phobics go through every day. Such manipulation of the language to marginalize those who disagree with homosexual marriage has its own casualties, I guess.
That is exactly right. Its not a fitting description since phobia, like you said, implies an irrational fear boarding on a psychological disorder. This person calls it 'homophobia'. IS she implying that it is a psychological disorder that needs to be treated? Its almost like turning it into a thought crime where people's unpopular opinions can be treated by the proper professionals.
While I agree with the article's main point that the federal government has no business definining the nature of marriage, the author neverthless has made one colossal mistake. He claims that the cultural debate is simply over the definition of a word. Words change meaning, he says, and it is wrong for any group to try to prevent this inevitable process. "Marriage" is a word, but marriage is a thing, and defining the word is an attempt to define the thing. The debate is about what marriage is, not about the meaning of a word, and as long as folks persist in this egregious error, we will make no progress culturally. Mr. Palmer's stance on this topic actually capitulates to one side of the debate by agreeing with the social progressives that marriage (the thing) is no more than a social convention, that it does not have a definable essence. He has adopted a nominalistic stance about marriage, which is to say, that he has (perhaps unconsciously) adopted a particular philosophical view of the matter that is consistent with one side, and inconsistent with the other. He has NOT taken the neutral stance between these views that he purports to do.
Good, thought-provoking article and conversation. I too think there is a minor error in the author's analysis. He seems to concede that because the Constitution does not delegate the power to define marriage to the federal government then, under the Tenth Amendment that power must fall to the states. He expresses regret but concedes the point. I'd encourage him not to give in so easily. The full text of the Tenth Amendment says that powers not delegated to the central government are "reserved to the States respectively, OR TO THE PEOPLE." I would submit then that just because the power is denied the federal government does not necessarily mean it is the role of the states. Some things are not the government's (ANY government's) business.
BTW, I have to agree that I also resent the use of the term "homophobia". I disagree with the lifestyle. That doesn't make me afraid of anything or anyone. But I can see where it probably makes you feel better to decide that everyone who disagrees with you is afraid or mentally ill. Even better is to assign them a slanderous name and get it to stick in the popular media. I have to salute the tactic. I just don't like being the victim.
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