14th Amendment Doesn't Give Right to a Three-Way? - Granite Grok

14th Amendment Doesn’t Give Right to a Three-Way?

man woman marriage bride groom heart

CATO has submitted an amicus brief to the Supreme Court in which it makes the case that the 14th Amendment prohibits states from denying anyone the right to marry, regardless of gender.

It is a compelling argument.  There are ample references to legal opinions and plenty of implications of the spirit of equality under the law, but there is one spirit that fails to appear.  The one that says any three people also have the right to marry.

I wonder why that is?

If the 14th amendment affirms that states have no right to deny people, regardless of gender, the right to marry, why does it not also prohibit them from letting three, five, or even fifty-thousand people “marry.”

The problem with making any equal protection argument about anything is that you are probably making an argument based on something you want, not something that makes sense. Allow me to elaborate.

I have often made the case that the state has–contrary to the opinion of some of my Libertarian friends–a vested interest in marriage, not as the union of any two people, but because marriage establishes a right to property. The people joined share property. They have a right to share it. They have a right to labor for the purpose of accumulating it, divesting themselves of it, passing it down to their children or to a surviving spouse or some other friend or relative, whomever, and the state has an interest in protecting that right so that interlopers and evil-doers do not intercede for the purpose of manipulating or denying them that right.

Unmarried people also have this right. They can choose to enter into a contract for the purpose of sharing property, passing it on or down to any person or persons of their choosing, and the state has the exact same interest here as it does with regard to the contract of marriage. The state exists to protect natural rights, one of which is property, another association, of which marriage is both, but which is not limited to marriage.

In the latter case, the “happy couple” could be three business associates, a dozen venture capitalists, or 50,000 investors in a corporation. In the purest sense of the law, or in this case, equal protection under the law, the state should not view the rights of the married couple any differently than the rights of a stockholder, as far as the property is concerned, other than the niggling details of the contract itself.

The state’s obligation is to ensure that the person’s right to their person and their property–which are essentially inseparable, are not violated. To this end, the people empower the state to establish and enforce laws for our equal protection.

So, I do not agree when CATO suggests that the 14th Amendment protects gay marriage or that it should empower the federal government to prohibit the states, through the 14th Amendment, from ‘managing’ marriage in this way. Marriage is not in the constitution. There is no right to marriage. There is, however, a right to property and the right of associations, of which marriage is but one.

The Tenth Amendment gives the power to the people of the several states to decide what kinds of contracts they will use to protect property equally under the law.

Some will suggest that I have just come out against gay marriage. Well, yes, and no. Marriage is, in my mind, a religious contract, not a civil one, for the purpose of binding men to the mothers of their children because it is better for all concerned, so formally, at least, I would expect the state to leave the word marriage alone except as noted. In practice, however, churches are free to decide whom they will marry (as long as you only marry one other person), and the people of the several states are free to define civil contracts that operate in a similar fashion for the purpose of defending property rights as I outlined previously. So civil unions should provide that protection for any two persons who wish to contract through an emotional and physical union (sans alter) where they will also share property–or not, as the case may be, with the full faith and protection of the 14th Amendment’s equal protection clause.

So, are states also free to define marriage as between any other number of people?

What about the threesome at the civic altar of public opinion? Can the state decide that churches and synagogues can or should allow three people to marry each other? Can they decide the JP’s, Ship captains, or circuitous court judges can “marry” five folks who claim to love each other (and are old enough, something else the 14th amendment seems to remain silent on).

You can, of course,  get a contract for that “threesome,” but it won’t be called a marriage.   Why?  Good question.  Why doesn’t the 14th Amendment protect your equal right to marry two people if it must, in fact, protect your right to marry one? Well, that must be some freakish, outdated social convention, the spirit of which never crossed the minds of the amendment’s drafters.  Or maybe, like the rest of the constitution, it doesn’t say a damn thing about marriage at all. Though I’m sure, there is a shadow of a penumbra lurking in there, just waiting for some un-elected justice to see it in their crystal ball of extra-constitutional jurisprudence.

All things in their time.

Until then, you hippies will have to cohabitate without that oppressive piece of paper no one ‘really needed’ until the gay lobby and democrats discover a new victim class to promote, and you are, of course, free to share your property with whomever you choose sans the cranky old Elizabethan marriage limitations.

If you want to “marry” a corporation, you may have to settle for the title of stock-holder (fiscal life-partner?), bond-holder, or if you’re really enthusiastic “member of the board” (A twelve-some for one-percenters), and the state should not care about anything but that the contract itself is deemed legal, has been or continues to be executed within the laws of the state, and is dissolved or dispensed (at such time as you or your “spouses” deem necessary) within an equally legal and recognized manner.  It should not care who you think you love, be it a person or property, or why, as long as that “love” does not violate the law.

As for CATO and the 14th amendment, I can’t begin to be as smart, informed, or clever as they are, but as far as I can tell, all the post-civil War amendments sought to allow former slaves to be people, just like everyone else. And as people, they were free to enjoy the natural rights to which all Americans were said to be entitled. As for marriage, it is still a rite and not a right, and the Constitution, with or without the 14th Amendment, is still silent. As such, the states are free to do with that what they will.

 

>