The Ballot at the End of the Rainbow

Apparently there’s some sort of vote coming up that involves gay marriage or something. Though, if one only read the Daily Tar Heel, you’d think it was a settled matter. There’s overwhelming opposition to this amendment and, anyone who opposes it is some sort of Medieval bigot who hates gay people. Not to mention, there are some really compelling propaganda films out there. In the interest of creating a more intelligent debate (and without necessarily taking a side), I just thought I’d raise a few questions. So, let’s being, shall we?

1. What exactly changes if this amendment is ratified?

Current North Carolina law prohibits the marriage of anyone but one man and one woman. Amendment One largely seems to just take what is a statutory matter and make it a constitutional matter. Not much more seems to change. I suppose, in theory, it’s more difficult to change the state constitution than it is mere law, but that’s not exactly a compelling argument either way.

2. What effects will passage of Amendment One have on business in the state?

As mentioned previously, state law already prohibits gay marriage I don’t seem to be able to find a source pin-pointing the exact year of that particular law’s enactment, but I’m informally told it was 1997. Assuming that’s the case, this law has been on the books for about 15 years, which raises an interesting question. For weeks, people have been running around in a big panic about how “writing hate into the constitution” will drive businesses out of the state and we’ll all die in poverty because everyone will think that North Carolinians are just a bunch of homophobic barbarians.

If this claim was true (and I don’t think I’ve exaggerated it too much- indeed, the DTH even tried to argue that there would be some sort of foreign policy impact from the amendment’s ratification), then you’d think we would have seen something like this happen over the course of the last 15 years, because “hate” is already written into state law. But we haven’t. Businesses still come here and set up shop (admittedly, not as much as they used to, but that’s what happens when you let Democrats run the place). Gov. Perdue herself claims that North Carolina is “one of the best places in the nation to locate or expand a business.” So, what’s the big deal? If there were some sort of economic impact to be had from laws of this sort, we would have seen them already. This just seems to be nothing more than scare-mongering.

3. Should the government be involved in the private lives of its citizens?

I’ve been reading a lot of arguments to this effect from more conservative-leaning commentators on the subject, but there are still some unresolved issues. For instance, a lot of people say that they don’t think the government should be involved with the whole marriage shin-dig because it’s ultimately a private matter. However, considering that marriage is ultimately a legal contract between two people, I think that the state is going to be involved on at least some level. The state effectively creates a definition for the contract (like it does for any sort of legal relationship, i.e. LLCs, corporations, etc.) and provides system for the enforcement of the contract (until its dissolution). So, it would seem to me that the state is free to define this contractual relationship anyway it pleases. You can, of course, debate the merits of one definition over another, but there’s nothing inherently bigoted about defining it any particular way. You ultimately have to draw the line somewhere. In the same way that there are certain requirements you have to fulfill in order incorporate a business, so too there are certain requirements you have to fulfill in order to create a marital relationship. I don’t think there’s any philosophical problem here. One only has the right to incorporate a business if one meets the requirements, likewise, two people only have the right to marry if they meet the requirements. And no one’s really up in arms about the state’s involvement in incorporation.

There’s also nothing to prevent two people from getting “married” outside the legal system. Churches are free to recognize whatever they want to, and people are free to live together. There’s nothing to prevent people from getting married. They would just lack legal recognition (which ultimately would be a government-free alternative to a traditional marriage). Note the last line of the amendment (which curiously always seems to be left out whenever people criticize it): “This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

But let’s be honest. Ninety percent of the opposition to this amendment would be eliminated under a Flat Tax system. Sure, people are out there talking about how it’s all about civil rights, etc., but there’s nothing to prevent these people from loving each other however they want. It’s not like the morality police are going to break down the door if two gay men move in together (this isn’t Saudi Arabia after all). The only thing their relationship would lack compared to a traditional marriage is a couple of tax breaks ( a benefit of the legal recognition). Not to completely change the subject, but I think our overly byzantine tax code is really one of the root causes of this debate.

4. Lastly, why are so many of the anti-Amendment One crowd so nasty?

After four years at UNC, the vitriol of this campaign really shouldn’t surprise me, but it’s still pretty bad. Many opponents of this amendment just causally call the opposition “bigoted,” “hate-mongers,” “backward,” “homophobic” and all the rest. Personally, I find it to be kind of a turn off. Now, I realize that not every opponent of amendment is like this (I know several people who have been able to discuss it in a refreshingly reasonable manner), but there’s enough of it to give one pause before deciding to associate oneself with this group. A re-tooling of tactics would be a nice, as would the recognition that two people can have a political difference without necessarily hating each other.

That about does it for now. Though, I may, of course, come up with some more questions later, should the discussion prove stimulating enough.

7 thoughts on “The Ballot at the End of the Rainbow

  1. Constitutionalist Reply

    "it would seem to me that the state is free to define this contractual relationship anyway it pleases."
    But it can't. It is bound by the 14th Amendment to view all citizens equally before the law. Some have argued that discrimination based on sexual orientation would be subject to the lowest possible scrutiny, but when the only arguments against recognizing homosexual marriage are religious, then the state (which must stay separate from religion) has no basis for denying those relationships equal standing.

    • mseelingerjr Reply

      There’s nothing that says the government must treat all relationships (among people) equally. To take an example, single and married people are treated differently by the tax code. The same tax law treats different groups of people differently.

      I think part of the issue is that the 14th amendment guarantees “equal protection of the laws,” specifically within the question of whether the state is depriving a person of life, liberty, or property, which is a slightly different thing than “viewing all citizens equally before the law.” I think it’s clear that no one is unjustly being deprived of life or property here. You could argue that maybe liberty is being infringed, but again, nothing’s stopping two people from living together if they want to.

  2. anonymous Reply

    aren't they being unjustly deprived of property by means of the tax code? if the government recognized their relationship as valid, they would be able to gain tax benefits, as well as spousal insurance coverage. they are being unjustly deprived of these and other benefits.

    also as far as "what would change" with this amendment — it would not only further ban gay marriage, but also ban all civil partnerships. my apologies that i could not find the original article just now, but i read a very interesting piece recently written by two members of so-called "pro-family" organizations who campaign against gay marriage. even they acknowledged that it's marriage specifically they want to "protect," and that to argue against civil unions or other similar domestic partnerships is ultimately to be discriminatory towards homosexual individuals.

    and wait… are you really arguing that we shouldn't "view all citizens equally before the law"??

    • mseelingerjr Reply

      You can say the same thing about any other number of groups of people in the tax code, dependent filers vs. independent filers, single filers vs. married filers, etc. It’s not as if homosexual couples are the only group of people denied certain tax breaks because of their legal status. If equal treatment is the end-game, you could just aim to change the offending laws (personally, I think something along the lines of a Fair or Flat Tax would do the trick), rather than attempt a re-definition of marriage. You’d achieve the same result, and you’d probably find less forceful opposition.

      The amendment does allow for contractual relationships between private individuals (in the second half of the amendment). I’m not exactly a lawyer, but the way I read it, that would seem to allow for a situation where a homosexual couple could effectively have a non-state recognized marriage. I don’t think the legitimacy of a relationship between two people should necessarily rest on the legal recognition of that relationship by the state. Of course, such legal recognition does convey some benefits, but I would refer to you my point above.

      I said that the 14th Amendment lacks a section specifying that the government must “view all citizens equally before the law.” That particular amendment does, however, guarantee “equal protection of the laws.”

  3. anonymous Reply

    the tax code is just ONE benefit though. what about insurance? what about adopting kids (or even having biological children)? if a couple is unmarried (or otherwise legally unrecognized), one parent must give up their parental rights. is that what we want to force unmarried couples, both straight and gay, to do? no private legal contract can make up for these issues. a "non-state recognized marriage" really isn't good for much, except maybe inheritance. there would be an awful lot of "offending laws" that would have to be changed on both a state and national level before this conversation would be moot.

    and good luck convincing married couples to give up their tax benefits, even in some crazy world where it would do the trick.

    • mseelingerjr Reply

      But isn’t gay marriage already prohibited by state law? I think this is what I really don’t understand. If gay marriage is already illegal or unrecognized, how is it that by simply importing this prohibition into the state constitution, all of these hypothetical suddenly come to bear? You’d think, with existing law being the way it is, that the anti-crowd could actually come up with some real-life examples of people who have already been affected by this prohibition. But all I’ve seen is a bunch of arguments to the effect of “It might do this” and “It might do that.” They’re very flimsy arguments and not terribly persuasive. Marriage is already strictly defined as being between a man and a woman. So, what changes?

      • anonymous

        what changes is that in addition to banning gay couples from getting married, it also prohibits domestic partnerships and civil unions between all couples, gay or straight. though i disagree, i can see why some argue that they want to keep "marriage" as a strictly heterosexual practice. but i cannot understand the arguments against civil unions that extend the same benefits to all couples, regardless of sexual orientation. what is the problem with allowing gay couples to hold the same rights but under a different institution (civil union vs. marriage)?

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