The Wall Street Journal reported today that a woman named Beth Urschel has filed a wrongful death suit against the state of Indiana over the death of her partner, Tammy Van Dam, in the tragic stage collapse at the Indiana State Fair on August 13. The problem for Urschel is that same sex marriage is illegal in Indiana.
“The lawsuit, filed Friday, gives Indiana courts the opportunity to rule on gay marriage, which is illegal there. In Indiana, the beneficiary of a wrongful-death suit must be the next of kin or spouse of the victim. The couple was married in Hawaii, which recognizes same-sex marriage.” The Journal wrote.
Same sex marriage has been in the news a lot over the last few years, and has been increasing in profile as a result of the large GOP presidential field and their differing views on the subject. Regular readers will not be surprised that I agree with Ron Paul’s view that governments should get out of the marriage licensing business altogether, and the Indiana case provides me with an excellent example of why both conservatives and liberals—but particularly conservatives—should support the libertarian viewpoint on this matter. Indeed, this is one instance where libertarians have a compromise solution that could put the same sex marriage issue to rest for good.
If you buy my premise that the dysfunctional left/right or liberal/conservative political paradigm should be replaced with an individualist/statist model in our political discourse, it is clear that conservatives are further to the statist side than libertarians when it comes to social issues. How far down the statist path any individual conservative goes depends on how much morality the given person thinks should be legislated. Ironically, many conservatives unwittingly end up further to the statist side of the spectrum than liberals when it comes to marriage, who would grant marriage licenses to a larger number of individuals.
This all begs the question: Why do we license marriages at all? George Washington didn’t have a marriage license, but I don’t think anyone questions the validity of his marriage to Martha.
As Wayne Allyn Root points out in The Conscience of a Libertarian, marriage licenses became popular as a tool to prevent mixed-race marriages. So, roughly speaking, the definition of marriage was “between a white man and a white woman” or “between a black man and a black woman,” and so forth. It wasn’t until 1968 when the Supreme Court held in Loving v. Virginia that these miscegenation laws were unconstitutional. (See here for more on the use of the intersections of marriage licensing and social policies.)
I point out this historical tidbit for two reasons. First, advocates of heterosexual-only marriage licensing should be aware of the racist roots of marriage licensing in America. Second, look at the fearsome power holds over the lives of individuals when cultural morality is used as the basis for government action.
This brings me back to the Indiana case, and the larger political point that has been made by social libertarians for years. If you want to regulate social issues based on your own personal moral views, you had better retain control of all legislative bodies in the country, as well as all of the courts, because if you lose any of them, you will end up with a government-sponsored moral code that you oppose. Thus, if the recently-filed wrongful death suit ends up at the Hoosier state’s highest court, and the court holds that the state must license same sex marriages, that which you believe to be immoral will be legally sanctioned.
So I ask the question again: Why do we license marriages? Speaking specifically to social conservatives, isn’t God’s blessing adequate? Indeed, I found this article in which one Pastor Matt Trewhella specifically urges Christians to not seek a marriage license, under the theory that state licensing is a usurpation of God’s jurisdiction over the matter!
So, if states across the country had done as Ron Paul, Wayne Allyn Root, and thousands of other libertarians have argued, we wouldn’t have to listen to GOP nominees discuss their views on same sex marriage at a time when the country is bankrupt and facing much larger problems. Conservatives and liberals in Hoosier-land wouldn’t be fretting over a wrongful death suit. The issue would be over, period.
Perhaps that’s a compromise that conservatives and liberals can agree on.
This article is also posted at The Country Thinker.