Introduction

One theory about the origin of the children’s poem, “Jack and Jill”, 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 jack”. In the measurement system of the time, two “jacks” comprised “a gill”. 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 “Jill”. “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, “ball”. If there is additional need for clarity, linguistic conventions might gradually and peacefully replace “attend a ball” with “attend a party”.

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.”

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.”

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 feet”, 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

Massachusetts, which legalized same-sex marriages in 2004, claims that the federal definition violates its authority under the Tenth Amendment of the Constitution to define marriage as it sees fit.

Click here for the full complaint.

Attorney General Martha Coakley’s suit argues that DOMA violates the Tenth Amendment to the United States Constitution, which reserves all powers to the states except those expressly given to the federal government, and it points out that until DOMA’s passage in 1996 states had unchallenged authority to regulate marriage.

It claims DOMA violates the Constitution’s principles of federalism, and it also violates constitutional provisions that prevent the federal government from withholding money to states as a means of forcing them to violate the constitutional rights of their citizens.

The suit asks the court to find DOMA unconstitutional as applied to Massachusetts and to grant an injunction preventing the enforcement of DOMA against Massachusetts.

The suit alleges that not only does the law violate the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds.

The suit states that DOMA, termed “overreaching and discriminatory,” interferes with the state’s “sovereign authority to define and regulate marriage.”

“We view all married persons equally,” Coakley said at a press conference today.

The judicial branch sees Congress’ ability to attach strings to funds as quite broad, and if the definition of marriage is linked to that enumerated power and is not seen as commandeering the state legislative or executive branches, it would likely not be seen by them as a violation Tenth Amendment.

MANCHESTER, New Hampshire (Reuters) – New Hampshire on Wednesday became the sixth U.S. state to authorize gay marriage, deepening a New England niche for same-sex weddings and the spending that comes with them.

New Hampshire’s Democratic-controlled House of Representatives endorsed gay marriage in a 198-176 vote, hours after the state Senate approved the legislation 14-10 along party lines, making the state the fourth this year to back gay marriage in the United States.

Governor John Lynch, a Democrat, signed the bill, which goes into effect on January 1.

“Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities, and respect, under New Hampshire law,” Lynch said in a statement.

The law also recognizes out-of-state gay marriages and civil unions, which are legal in just a handful of U.S. states including New Hampshire. Same-sex couples who have civil unions in New Hampshire will automatically be married January 1, 2011.

Last month, the New Hampshire House rejected a similar bill. But Senate and House members met last week to approve new language giving clergy and religious institutions opposed to gay marriage greater protections, including the legal right to decline to marry same-sex couples.

Opponents, mostly religious conservatives, see gay marriage as a threat to the “traditional family” that is ordained by God and the foundation of civilization. Supporters often compare it to the path blazed by the civil rights movement.

PROTECTING RELIGIOUS BELIEFS

New Hampshire’s bill says religious organizations, associations or societies will have “exclusive control” over their religious “doctrines, teachings and beliefs”.

Organizations affiliated with religious groups that operate for charitable or educational purposes can deny marriage services to gay individuals, it adds.

“The (changes) strike the appropriate balance between two important values we believe New Hampshire residents support: equal rights for all and the rights to religious freedom,” said state Senator Deborah Reynolds, a Democrat.

Senate Republicans said the amendment did little to change a bill they oppose. Republican state Senator Sheila Roberge said Democrats should support Republican calls for a referendum so voters can decide the issue.

Only a few countries, mostly European nations, allow gay marriage. Forty-two U.S. states explicitly prohibit same-sex marriage, including 29 with constitutional amendments.

Last week, California’s supreme court backed a ban on gay marriage by upholding a voter-approved proposition defining marriage as between a man and a woman.

In stark contrast, gay-marriage laws are expanding swiftly on the East Coast, especially in New England where Massachusetts became the first state to allow gay people to marry five years ago.

CLICK HERE TO READ THE REST OF THE ARTICLE

The measure, from Assemblyman Daniel O’Donnell, passed by a margin of 89 to 52, including the backing of five Republicans.  in the state’s lower house, where Democrats have a comfortable majority. A similar bill passed in the same assembly by an 85-61 vote in 2007.
As reported by the NY Times:

Despite the conservative pressure, two Republicans spoke on Tuesday about why they dropped their opposition to granting same-sex couples the right to marry. Three Democrats who voted no in 2007 switched their votes to yes.

“There’s that little voice inside of you that tells you when you’ve done something right, and when you’ve done something wrong,” said Fred W. Thiele Jr., a Republican who represents the Hamptons. “That vote just never felt right to me. That little voice kept gnawing away at me.”

Mr. Thiele’s district overlaps with the Senate district of Kenneth P. LaValle, whom gay rights advocates consider to be among the half-dozen or so Republicans open to a yes vote.

Assemblywoman Janet L. Duprey said a lesbian couple who live on her street helped change her mind.

“They are asking only for equal protection under the law,” said Ms. Duprey, a Republican whose district along the Canadian border in the North Country overlaps with the Senate district of Elizabeth Little, another Republican who gay rights supporters believe is within reach.

“They deserve no less than to have the same rights and ability to share their love,” Ms. Duprey added.

Local advocates of the measure didn’t expect much resistance in the Assembly, but many say winning over the Senate remains a much steeper political mountain to climb despite its Democratic majority.

Five states – Vermont, Connecticut, Massachusetts, Iowa and Maine – have exercised their sovereignty and have legalized gay marriage. In New Hampshire, a gay marriage bill awaits Governor John Lynch’s signature to become law.

From the official press release:

Governor John E. Baldacci today signed into law LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom.

“I have followed closely the debate on this issue. I have listened to both sides, as they have presented their arguments during the public hearing and on the floor of the Maine Senate and the House of Representatives. I have read many of the notes and letters sent to my office, and I have weighed my decision carefully,” Governor Baldacci said. “I did not come to this decision lightly or in haste.”

“I appreciate the tone brought to this debate by both sides of the issue,” Governor Baldacci said. “This is an emotional issue that touches deeply many of our most important ideals and traditions. There are good, earnest and honest people on both sides of the question.”

“In the past, I opposed gay marriage while supporting the idea of civil unions,” Governor Baldacci said. “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”

“Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’”

“This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State,” Governor Baldacci said.

“It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government.”

“Even as I sign this important legislation into law, I recognize that this may not be the final word,” Governor Baldacci said. “Just as the Maine Constitution demands that all people are treated equally under the law, it also guarantees that the ultimate political power in the State belongs to the people.”

“While the good and just people of Maine may determine this issue, my responsibility is to uphold the Constitution and do, as best as possible, what is right. I believe that signing this legislation is the right thing to do,” Governor Baldacci said.

These people are concerned about their values, their traditions, their lifestyle and their beliefs.  So, many of them are calling on the federal government to “step in” and fix this “problem.”

One thing that these people are definitely NOT concerned with, though, is the US Constitution.

The Constitution was written under what’s called “positive grant.” What this means is quite simple. The federal government is authorized to exercise only those powers which are positively granted to it by the Constitution. If a power is specifically listed in the Constitution, the federal government can do it.

And, of course, the opposite holds true.  If the federal government isn’t given a power in the Constitution, then that power is “reserved.”

This principle was so important to the founding fathers that they codified it in law as the 10th Amendment:

“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.”

The is not one single word in the Constitution about marriage – of any kind.  The Federal Government isn’t given the power to regulate, approve, deny, or anything else in regards to people’s marriage choices.

Period.

And if we someday decide that politicians in Washington D.C. should have the power to determine what is and is not a valid marriage, this country will be in even more danger than it is today.

The best “solution” this “problem” would be to get the government out of the marriage business altogether.