Under the Constitution the government is not obligated to grant us benefits. However, the Constitution prohibits the government from interfering with our fundamental rights. Is marriage a right or a benefit? The question obviously has legal significance, but it also has important political consequences. Nate Silver of FiveThirtyEight points out that public attitudes towards same-sex marriage seem to be determined by whether people think that the government is refusing to extend a benefit to gays and lesbians or whether they think that the government is taking something away from them.
In this recent post Nate Silver remarked that the results on public polling on gay marriage varied depending upon how the question was asked (duh!). Nate's observation is astute, though – he noticed that there is considerably more support for same-sex marriage when respondents are asked:
whether the decision to marry [someone of the same sex] should be strictly a private decision or whether the government has the right to pass laws to prohibit or allow such marriages
In response to the foregoing question Gallup/USA Today recently found that 63 percent of respondents favored same-sex marriage. In contrast, Nate states that when people are asked whether the government should permit gay marriage the average level of support drops to only about 41 or 42 percent. He speculates that the framing of the question reflects the difference between positive and negative rights – that Americans conceive of constitutional rights as freedom from government interference, not as affirmative duties on the part of the government, and that when the question implies that the government is taking away a liberty rather than simply refusing to confer a benefit people are more sympathetic to gays and lesbians who wish to marry.
So is marriage is right or a benefit? In numerous cases the Supreme Court has declared that marriage is a fundamental right, most famously in Loving v. Virginia (1967) where the Court struck down a state law that prohibited interracial marriages. The strongest language that is helpful to gay rights advocates appears in the case of Zablocki v. Redhail (1978), where the Court ruled that the state could not prohibit a man from marrying simply because he was behind in his child support. Writing for the majority, Justice Thurgood Marshall stated that
the right to marry is of fundamental importance for all individuals.
On the other hand … what if the government suddenly decided not to recognize marriage? What if marriage was no more than a religious sacrament? What if there were no more divorce laws, no more dower rights, no more joint income tax filings, no more spousal survivorship benefits – no legal recognition whatsoever of the marriage relationship? The word "spouse" would have religious and social connotations but it would have no legal consequence. Does the government have an affirmative duty to recognize marriages and grant all these benefits to married couples? I don't think so. In theory the government could repeal the marriage laws and simply treat every person as an separate individual and ignore the commitments and promises that they make to each other, or at most the state could treat these commitments as "contracts" which might be different (and difficult to prove) for every couple.
I am not advocating that we should eliminate the legal institution of marriage (although the Libertarian Party does), but I am suggesting that there is an argument for the concept that the legal recognition of marriage is in general a benefit and not a constitutional right. The real question then becomes whether the marriage laws are constitutional under the Equal Protection Clause. Is it constitutional for the government to withhold the benefit of marriage from certain categories of people?
There is another way of looking at this – that the marriage laws regulate not only the relationship between the spouses but that these laws also define and establish the family as well. It can be argued that the institution of marriage is a fundamental right because it is the foundation of the family, and when we deny the right to marry to people who are behind on their child support or to interracial couples or to same sex couples we are in reality denying them the opportunity to create a family. It is the right to family, not simply the right to marry, that is fundamental. What do you think?
{ 3 comments… read them below or add one }
The courts seem to have avoided this question when they were handling polygamy cases.
There are some similarities here. Societal morality and trying to 'hold the line' on traditional marriage.
Taking all that into account maybe the most accurate poll question would be something to the effect of, "Do you think gay couples should be given the same access to adopting children as heterosexual couples?"
I'm not sure you'd get that same 63 percent number, however.
RE: "In theory the government could repeal the marriage laws and simply treat every person as an separate individual and ignore the commitments and promises that they make to each other, or at most the state could treat these commitments as "contracts" which might be different (and difficult to prove) for every couple."
AND "There is another way of looking at this – that the marriage laws regulate not only the relationship between the spouses but that these laws also define and establish the family as well."
Hmmm…I think you may have reached a backdoor solution to several issues of 'marriage' that could fall under the separation of church and state!
Revise the 'marriage' laws to be completely under the domain of the various religions. Government need not be involved with personal issues at that level.
Establish 'family' legislative rules, in the form of contracts, that govern the relationships/benefits/privledges/responsibilities of couples who choose to contractually join their lives and assets as a unit.
At best, this could defuse the debates over who gets to be a family, and at least, it could open up many employment opportunitites for U of A Law grads.