Marriage: A 1st Amendment Issue

Apparently, tis the season to get married.  Sense the beginning of September I have had a wedding, I felt obligated to attend or was in, almost every weekend up until now.  For those of you who have not been a best man or maid of honor, at the end of the wedding you are required to sign the marriage license as a witness.  This got me thinking about the government’s role in marriage and how it negatively impacts our civil liberties.

Most of us don’t question the requirement to obtain a license to get married.  Just like several other requirements from the government, this one generates unnecessary problems.  Just look at where we are today; constantly bickering over the definition and legality of marriage.  I’m sure by now you most of you realize I am talking about gay marriage.  I would like to settle this debate by making it a First Amendment issue.

The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition Government for a redress of grievances.”  What is the most important word… “the,” because it shows that the right to “the free exercise,” or “the freedom of speech,” presupposed the existence of congress.  It is a natural law that comes from our humanity.

Now that we know what the First Amendment says, we can now address some of the ways the government has violated your rights to marriage.  We have seen arguments from people on both sides of political spectrum.  We have seen our Congress, at the Federal and State level, pass laws barring the freedom of marriage (Defense of Marriage Act, state amendments to constitution defining marriage, Anti-miscegenation laws, etc).

Under our system the Federal Government was given no authority over marriage and in fact prior to 1996 the federal government did not define marriage; any marriage recognized by a state was recognized by the federal government.  I would like to take a minute to propose that had this philosophy and the constitution been followed several of the issues we currently have, would not exist.  I propose a hypothetical situation as to why.  If California decided to recognize gay marriage, so to would the federal government recognize the marriage.  Now on the flip side, if a gay couple decided to get married in Kansas, and the state, as is currently defined in the Kansas Constitution, does not recognize the marriage, nor would the federal government.


This allows for another very important right: the right to choose, to decide, to travel, to move, and any other rights regarding choices you can think of.  A gay couple in Kansas could get married in a state that recognizes gay marriage and then come back to Kansas.  Benefits, at least before 1996 and for the most part today, come from the federal government anyway; only a few come from the state.

We have seen in the very heated recent debates, how as the government gets involved, tolerance goes down because both sides now feel they have to use the law to protect themselves by restricting others.  I for one recognize marriage as a union between a man and a woman; but I also do not believe that my opinion should be forced on others.  Given the fact that I have argued and am arguing for the First Amendment rights of everyone, I recognize that several definitions of marriage exist amongst the many cultures and in the dictionary.

Buddhism for example, defines love and marriage differently than do Christians, Muslims, Hindus etc.  Buddhist monk and historian A.L. De Silva, explains that “homosexuality is not explicitly mentioned in any of the Buddha’s discourse, so we can only assume that it is meant to be evaluated in the same way as everything else the Buddha teaches.”

gay marriage

Silva goes on to say that “the Buddha questioned the typical assumptions of society and based his upon reason and compassion.  For the Buddha, love and sex is inseparable, and as long as there is mutual consent and the act of sex is an expression of love, respect, loyalty, and warmth, it does not violate the Buddha’s teachings.”

While not relating to gay marriage, but nonetheless a violation of the First Amendment, the banning of polygyny has also violated the rights of many people.  In the Muslim culture it is often expected of a man, even if already married, to marry the widow of his brother in the event of his death.

The same can be said about Mormons, who up until 1904 practiced polygyny.  It was first condemned by the Church in 1890, not because the practice was immoral, but rather because of the refusal by federal Congress to allow a state into the union which recognized polygyny.  A complete violation of the constitutional rights of the people, but it was argued that because Utah was not a state the rights did not apply to the people of Utah.  My argument would be as soon as they became a state they should have reinstated their right to define marriage.

Or how about the people of no religion, who believe that gay marriage, polygyny and monogamy are ok, or that being a swinger (aka “adultery”) is ok?  They too should have the right to get married in the manner of their choosing.

I think I have laid out my argument very clearly.  The federal government should have no say in marriage, because they were not given the power.  People have a right to practice and define marriage however they choose: gay, straight, polygamy, monogamy etc.  Churches should not be forced to marry nor ban a gay couple as that too violates their rights.  In states that recognize gay marriage, the courts will be able to offer them the same licenses as a heterosexual couple married at a church.  I hope that this explains a little more to those of you not understanding the libertarian movement, and to sum up all my beliefs I will use a well-known phrase whose ideal gave birth to nation; “Don’t tread on me.”



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