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Same-Sex Marriage and the Entitlement Problem
by David Marhoffer
18 February 2004

There are only two possible legal solutions to the problem of "entitlements." Either everyone gets them or no one gets them. Anything else is odious discrimination.

The recent ruling by a narrow majority of the Massachusetts Supreme Court was only the last of five consecutive and humiliating losses suffered by cultural and political conservatives. The United States Supreme Court graciously supplied three of the setbacks in the areas of diversity and affirmative action in college admissions, federalism and states' rights in sodomy cases, and the McCain-Feingold campaign financing law and its impact upon the First Amendment.  The fourth injury was self-inflicted by President George W. Bush and his pledge to address the status of the multitude of foreign workers who entered and work in this country in violation of its existing immigration laws.
The latest in the quintet of defeats was a 4 to 3 opinion which insisted that the Vermont "civil unions" were separate but unequal rights. The Court found that nothing short of granting gay people full marriage rights equivalent to heterosexual couples will pass constitutional muster. It is only a short matter of time before gay individuals will be able to obtain marriage licenses in Massachusetts.
This is only the beginning. The crystal ball is now clear and the future is obvious.
Normally, the U.S. Constitution's "Full Faith and Credit" Clause requires each state to honor, among other things, a sister state's marriages, judgments, and official acts. However, the Federal Defense of Marriage Act was signed into law on September 21, 1996 by President Bill Clinton to prevent the Full Faith and Credit Clause from forcing one state from recognizing the same-sex marriages entered into in another state. Now known as 28 USC §1738c, the Act had been approved by a vote of 85-14 in the U.S. Senate and by a 342-67 vote in the  House of Representatives. Lest there be any doubt, 38 states passed their own state law-based Defense of Marriage Acts. Thus far, the United States Supreme Court has refused to weigh on the constitutionality of either the federal act or its various state counterparts.
Nevertheless, once gay people are able to obtain marriage licenses in Massachusetts, it is reasonable to conclude that 12 states are prepared to recognize them. Before long, the United States Supreme Court will have no choice but to accept certiorari and review the constitutionality of same-sex marriages. If Lawrence v. Texas is any indication, it is very likely that the United States Supreme Court will declare that the house of the United States divided on the issue of same-sex marriage cannot stand and that the laws of  the 38 dissenting states are unconstitutional.
Conservatives will lick their wounds for a while, but will then mobilize to pass the 28th Amendment which will attempt to define marriage between a single individual of suitable age, mental capacity, and possessing an XX chromosome to another single individual of suitable age and mental capacity, but possessing an XY chromosome. Enormous political pressure will be brought to bear on 15 states and the proposed 28th Amendment to the U.S. Constitution will fall just short. The United States will join the Netherlands and Belgium in their legal recognition of same-sex marriages.
Same-sex marriages are inevitable and conservatives would be wise to anticipate them. This is a realistic statement that expresses neither approval nor disapproval. Personally-speaking, I am a heterosexual male who will soon celebrate ten years of marriage to a member of the opposite gender. Further, the particular religion into which I was born does not recognize same-sex  marriages and does not ordain gay clergy. However, rather than wail that the death of civilization is near, I believe that the issue contains valuable lessons that should be approached from an objectivist or libertarian perspective.
In a constitutional republic like the United States, all citizens are equal before the law. Government must not prefer one citizen over another, based upon meaningless characteristics like race, ethnic origin, gender, religion, and the like. Of course, a government can treat the law-abiding differently from criminals and reserve rights to its citizens over non-citizens. However, between two citizens, the government cannot show favor to one while discriminating against the other.  
To understand this issue, we must first focus on the concept of rights. What we call rights are actually restrictions on the power of government.  My right to property does not mean that the government must provide me with property to own. Rather, it means that the government is prohibited from taking from me the property I already own (without due process of  law). My right to my property is no different from the right of Bill Gates to his properties and the right of Warren Buffett to his. Obviously, the magnitude of properties differs considerably, but the right is the same. Government is a police officer who protects Hobo Joe's one dollar of assets, Bill Gates' billions, and everything in between with the same zeal.
On the opposite end of the spectrum, there are government handouts. These should not be confused with rights. Handouts have been called by courts "entitlements," which falsely presupposes that one person is "entitled" to enjoy the tangible fruits of another person's labor when the government extracts them from the latter through the coercion known as taxes. In any other context, "entitlements" are nothing but the receipt of stolen property. Nevertheless, in the past four decades, courts have found that people have a "right" to their proportional share of the loot.
Under the law, all people, including gay people, are entitled to the same exercise of their rights and the same share of government handouts which the government looted from their producers. The reality is that gay people are being denied some rights and some "entitlements" which married heterosexual people receive. To an extent, gay people want the same rights as anyone else. On the other hand, they want their proportional  share of the government loot that everyone else is getting. Gays want the same "bennies" that married heterosexual people receive.
There are only two possible legal solutions to the problem of "entitlements." Either everyone gets them or no one gets them. Anything else is odious discrimination. There is no other way and piecemeal approaches of drawing lines here and there is doomed to failure. Laws cannot be written by the legislatures that attorneys and judges cannot find their way around to derive a legal interpretation that would constantly blur and redraw the lines toward all-inclusiveness.
Now, consider the following situation: what if the government completely abandoned its practice of issuing marriage licenses. People would marry according to the dictates and traditions of their own respective religions. No one would receive a governmental benefit from either getting married or getting a divorce. By removing the possibility of gain and any special "entitlements," gay people would not have an incentive to demand equal treatment and their "fair" share of government loot. Removing government and the corrupting effect of monetary gain on marriage would correspond to the restoration of the institution of marriage back to the realm of religion. People would marry for love, their religious convictions, and for the blessings of their faith. True moral and social approval does not require government involvement or financial rewards.
Incidentally, the same analysis applies to immigration. A country may certainly regulate its borders in the interests of national security and to prevent entry of criminals and carriers of communicable diseases. The solution to the problem lies in eliminating any "entitlements" and loot that immigrants receive from the government trough. However, no system of government can provide "entitlements" and "bennies" to some people and not to all; there will always be massive fraud. The only possible solution is to eliminate everyone's "entitlements." Trafficking in stolen property is morally wrong whether one is a citizen or an immigrant.
The choice between principle and "entitlements" should be an easy one.

David Marhoffer practices business, corporate, and real estate law for the Scottsdale, Arizona law firm of Marhoffer & Rosenfield, P.L.L.C.

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