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The Same Sex Marriage Issue Rises in Indiana—And How to Put it to Rest for Good

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.

About Country Thinker

Ted Lacksonen has written 97 posts in this blog.

I am a proud mem­ber of the Coun­try Class — the roughly 75% of Amer­i­cans who have been effec­tively dis­en­fran­chised by the minor­ity Rul­ing Class. As a law stu­dent and lawyer, I trav­eled (uncom­fort­ably) in Rul­ing Class cir­cles. As an HVAC installer, sheet metal fab­ri­ca­tor, and ship designer, I trav­eled (com­fort­ably) in Coun­try Class cir­cles. My expe­ri­ences in these two widely diver­gent uni­verses have given me a dual per­spec­tive that is uncom­mon among writ­ers and thinkers.

  • http://www.wwtft.com/ Martin

    Well, as usual, you’ve argued persuasively. However, (and this is why I differ from libertarians) your position would seem to purport that there is no place for morality in government. This is not, and can never be true. It is a fine line, and determining that line is something that society has to do for itself and apply to the government it selects. It is, at the same time, the greatest strength and the greatest weakness of our political system. Those who argue to legitimize same sex marriage and homosexuality, seek to redefine that societal morality, and then make the system of government reflect that change. The problem is, the more we remove morality and attack the values upon which the country is founded, the less viable our government becomes.

    It is hard for a lot of people to swallow, but our system of government is based on the premise of a moral people.

    “We have no government armed with power capable of contending with human passions unbridled by morality and religion . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams

    “Religion and morality are the essential pillars of civil society.” George Washington

    Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.” James Wilson, Signer of the Constitution

    “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” Benjamin Franklin

    “”[F]or avoiding the extremes of despotism or anarchy . . . the only ground of hope must be on the morals of the people. I believe that religion is the only solid base of morals and that morals are the only possible support of free governments.” Gouverneur Morris

    There are countless other quotes from the country’s founders saying the same thing. Our government was formed on the basis that it would govern over a community with a shared sense of morality. They did not seek to dictate a state religion … but neither did they seek to undermine the religious principles on which the country was founded.

    This dispute is not about having the government legislate a moral issue, it’s about who’s morals the government is going to support.

    I could support taking the government out of marriages, in terms of licensing. I cannot support giving the stamp of legitimacy to the perversion of an institution which forms the core of our society. Logically, what differentiates movements like this one from the past and continuing movements to legitimize homosexuality and bring it mainstream? Nothing. It’s simply a moral scale.

    The reality is, you have to put a stake in the ground somewhere and stand for a code of morality. You have to make a call. The common ground of moral understanding has been constantly shifting ever leftward, and the consequences are obvious.

    • http://countrythinker.com/home/ Country Thinker

      I agree that our nation is founded upon the need for a moral people. The question is whether a moral people can be created by laws.

  • http://the-classic-liberal.com/ theCL

    your position would seem to purport that there is no place for morality in government

    I beg to differ. Washington, DC, proves that there is no place for morality in government. After all, it’s a bipartisan Sodom and Gomorrah on steroids!

    Government is a secular institution defined by it’s monopoly on violence and sustains itself via theft. Having faith that it will protect that which belongs to God, as marriage does, is like making a deal with the Devil to get to Heaven. Ain’t gonna happen.

    A thought experiment … IF you were gay and pro-marriage and wanted to force society to accept your “marriage” as equal to all others, which would you prefer?

    a) marriage is a private institutions governed by church and social norms

    b) marriage is defined and governed by the state

    We both know the answer, don’t we? We do leftists want anything (which is everything) in the hands of the state? It’s the only way to force everyone to live the way the want. They can’t enforce their edicts on that which is private.

    • http://countrythinker.com/home/ Country Thinker

      We have been given a choice between two different forms of social engineering based on two different sets of norms.

  • http://capitolcommentary.com Harrison

    This was Ron Paul’s point during the GOP debate.

    I say let gays be just as unhappy in their marriages as so many straight people seem to be in theirs and get the government out of the marriage business.

  • http://westernhero.blogspot.com/ silverfiddle

    Amen! Yes, our form of government is for a moral people, but the founders specifically left the enforcement of any religious morality out of the constitution.

    Country Thinker’s answer is the only constitutional one.

    CT: You make some great arguments for libertarianism. The roots of marriage licenses is a good one. How immoral is that? Also, in a libertarian world, slavery would be anathema. How immoral was slavery? Libertarianism isn’t as nutty as some make it out to be.

  • http://www.ldjackson.net LD Jackson

    I have very mixed feelings about this. On the one hand, I see the attempts by homosexuals to obtain the right to marry as their way of legitimizing their perverted behavior. That is what they are after, more than anything, they want their behavior to be accepted as normal. That makes me want to draw a line in the sand and say enough is enough. It makes me want to ask the question, how close to the brink do they want to pull our society?

    On the other hand, I recognize that morality can not be legislated. We have seen example after example of how that fails. Martin has a good point, in that our system of government was designed to govern a moral people. Once the morality is taken out of the equation, one has to wonder what is next.

    • http://countrythinker.com/home/ Country Thinker

      It is the forced legitimization that is troubling about marriage licensing. If the licensing system goes away, the only legitimization issue is resolved on an individual basis.

    • http://the-classic-liberal.com/ theCL

      to obtain the right

      But … and this is important. Rights – genuine rights – are inherent and therefore cannot be “obtained.” If we concede that government grants and/or creates rights, we might as well raise our white flags and enjoy the boots stomping on our face.

      I doubt very much that that’s what you had in mind in your comment, but language affects everything, including the way we think. The more we deal with issues on leftist terms, the more ground they gain. Because if government grants rights, our rights are not inherent (via nature or God). Which can only lead us to one destination … the state replacing God.

      more than anything, they want their behavior to be accepted as normal.

      Agreed.

      That makes me want to draw a line in the sand and say enough is enough.

      Are you sure the federal government is the proper institution to draw that line? Correct me if I’m wrong, but it seems to me that government has been actively working against you for a long time now.

      A scorpion happens across a frog along the river bank and asks the frog to carry him across. The frog says “no way, you’ll sting me and I’ll die.” But the scorpion replies, “if I sting you, I’ll drown, so out of self-interest, there’s no way I’d ever sting you.” The frog thinks for a minute and says, “that makes sense, go ahead then, climb on my back.” About halfway across the river, the scorpion stings the frog, who asks in his dying breath, “why did you sting me, you’ll die too?” To which the scorpion responded, “I’m a scorpion, it’s what I do.”

      Government is what it is, and nothing can change that fact. Let government decide marriage and your worst nightmares will come true. Take marriage away from the government … and they can’t “legitimize” a thing. The best way to protect marriage is to take it out of the government’s hands.

      • http://www.ldjackson.net LD Jackson

        I understand your point, CL. However, my comment was made with the realization that at this point in time, it is the government that will give homosexuals the right to marry. I think there is an almost 100% of that happening, at some time in the future.

    • http://capitolcommentary.com Harrison

      Some people, I believe, are simply born gay. If so, love is love.

  • http://www.wwtft.com/ Martin

    I’m not sure I was as clear as I should have been. I agree with CT’s thought on getting the state out of licensing marriage. But, where does the line stop and should it?

    The nuclear family is the basis of our civilization. If the government is going to redefine what marriage is, from a tax standpoint, from a policy standpoint, and from a legal standpoint, then it is engaging in the social engineering which you decry.

    Should 55 year old men be permitted to marry 6 year old boys?

    Now, before you you suggest I’m linking unrelated things, consider that there is a dedicated group of psychiatrists and other mental health professionals who are actively seeking to remove pedophilia from the American Psychiatric Association’s bible of mental illnesses — the Diagnostic and Statistical Manual of Mental Disorders (DSM), set to undergo a significant revision by 2013.

    B4U-ACT is an organization representing these maggots that recently met in Baltimore. Their director of operations understands that it is about moving the ball down the field and adjusting public perceptions:

    “The first thing they do is to get the public to divest from thinking of what the offender does criminally, to thinking of the offender’s emotional state, to think of him as thinking of his emotional state, [and] to empathize and sympathize,” Reisman said. “You don’t change the nation in one fell swoop; you have to change it by conditioning. The aim is to get them [pedophiles] out of prison.”

    “Just as has been the case historically with homosexuality, society is currently addressing the matter of pedophilia with a balance that is far more heavily weighted on the side of criminal justice solutions than on the side of mental health solutions.”

    The “live and let live philosophy” breaks down at a certain point. What people are more less comfortable with today, would have been considered lunacy 20 year ago. Think about all of the deviant behaviors the government is trying to legitimize in the schools, on their forms, and with legislation.

    Some things are just plain wrong – and guess what? They are wrong because they are morally wrong.

    Too often, in our efforts to be open-minded we’ve let our brains fall out.

  • http://the-classic-liberal.com/ theCL

    If the government is going to redefine what marriage is, from a tax standpoint, from a policy standpoint, and from a legal standpoint, then it is engaging in the social engineering which you decry.

    Getting government out of the marriage business means getting them out of all of the above.

    What people are more less comfortable with today, would have been considered lunacy 20 year ago.

    I think you misunderstand the “live and let live philosophy,” which has nothing to do with this topic anyway. Taking marriage away from government leaves you free to discriminate (in real terms, not in leftist class war terms) as you please, and leaves gays powerless to “legitimize” as traditional.

    Too often, in our efforts to be open-minded we’ve let our brains fall out.

    I’ve seen no argument presented here about being “open-minded.” The argument is about the fallacy of turning to government as a “solution.” Because when you do, yo ultimately “end up with a government-sponsored moral code that you oppose.”

  • http://www.ldjackson.net LD Jackson

    Just as a side note to this discussion, if the Fair Tax were to be implemented, it would eliminate some of the argument for the government to be in the marriage licensing business. Would it not place everyone on the same footing when it comes to federal taxes, thus removing the complaint by the homosexuals that they aren’t being treated fairly, when it comes to taxes?