How should the Supreme Court decide gay marriage? The real issue is the establishment clause.

The Supreme Court is taking up the issue of gay marriage today, pushing us just a little bit closer to civil war. A government of men and not of laws? Not hardly. We are by now a delphic kleptocracy, divining inscrutable pronouncements to learn what new larcenies are to be imposed upon us.

Here’s my quick take, just to get it out of the way: State-sanctioned marriage is rent-seeking, socializing the costs of married people and their children onto people who make other choices. Hence, while the (Marxist) philosophical objective of gay marriage is to undermine the family as a redoubt against the state, the immediate practical political intent is simply more rent-seeking: “It’s not fair that some people get free goodies but others don’t!”

That suggests the real solution to this problem: Get rid of the whole wretched mess. People can enter into whatever private arrangements they like — paying their own damn costs if they run into disputes! — and the state takes no part in any of it.

Marriage itself is not an issue over which the federal government has any authority. The legal pretext for marriage and family laws is the welfare of children, which is provided for in state constitutions, not the federal constitution. In fact, statist impositions upon families have been disastrous for children, effectively destroying the private institution of marriage. But it cannot possibly be the case that the Supreme Court has any business poking its nose into any of this.

Equal protection? What about people who are not married now, or who have never married, or who for whatever reason cannot ever marry? Why are couples, straight or gay, who anoint themselves with the state’s holy water entitled to goodies that are denied to couples who don’t join the rent-seeker’s cargo cult? What about people who conjoin themselves in marriages you would rather not contemplate?

People either really, really want gay marriage, or they really, really don’t, and the logical implications of their own positions are opaque to them. They can always spot the mote in the other guy’s eye, but they can’t ever manage to catch sight of the beams in their own.

Here’s the real truth of the matter: The debate we’re having now is about religion. Opponents of gay marriage want to maintain one kind of state sanction for the marital relationship, while proponents want a different kind of sanction. All of these folks are jealously interested in the free goodies to be looted from unmarried and childless people, but the currency they are most interested in is the state’s approbation — the sanction itself.

And that suggests a place where the Supreme Court, as it is presently constituted, can plausibly usurp a power to act: State-sanctioned marriage of all sorts is a violation of the establishment clause. It is religion de facto and hence none of the government’s business.

Of course, I am in favor of none of this, nor of any sort of statute law, but you can rest easy. This won’t happen. What we will get instead will be new and better reasons to hate each other. This is the only possible outcome from trying to resolve disputes by force.

This entry was posted in Love and marriage, Splendor!. Bookmark the permalink.