Like many, I am decidedly not happy with the Supreme Court’s ruling on marriage. While I hoped and prayed for a different result, I had been anticipating this most recent decision for years. Over the last year or so, I’ve been thinking about what we could do if we lost. Right now I have more questions than answers.
Since the ruling, I have been hearing a lot of talk about a special session. Many citizens are demanding that there be one. They naturally and understandably want the legislature to “do something”—either to “stand for marriage” or “stand for the Constitution and state’s rights.”
Taking a Right Stand
I’m all for taking stands and have been doing so for years. But I’ve learned that in politics, as in life, the best course is to do the following:
- Evaluate a situation fully to understand all the issues,
- Consider all the possibilities for addressing those issues and their pros and cons in terms of short-term and long-term consequences/implications,
- Figure out who is on my side and who isn’t,
- Inventory the “resources” needed for and available to get the job done once I’ve determined what “the job” is
- Develop a wise strategy to get it done.
That kind of process is exactly the opposite of what has the appearance of a “fire, ready, aim” approach. Generally speaking, it seems that many of the people calling for a special session not only do not appreciate the dynamics of a special session as distinguished from a regular session, but they don’t know yet what it is they want their legislators to do when they arrive for that special session.
I don’t blame them for not knowing what to do, because I’m not confident I know what to do either.
Getting Out of the Marriage Business
Of course, some do think they know what they want our legislators to do. What I keep hearing about is “getting the state out of the marriage business.” That sounds good, but I still don’t know what it means or what a law that “gets us out of the marriage business” looks like.
Surely, they don’t mean that every law on the books dealing with marriage and children will be repealed. If that’s what they mean, then we’ll have chaos. It may get the state out of marriage issues on the front end, but it will not get the state out of family issues on the back end.
If they only mean that the state won’t “officially” sanction a marriage, then is there going to be no definition of marriage? If that’s what they mean, then they need to understand that polygamists will be signing up tomorrow, and the state has no argument to make against it. I’m not for that.
But if there is going to be a definition of marriage, then what is it going to be? It will be either one the Supreme Court will like, which legislators won’t want to vote for because it will be genderless, or it will be one that a federal judge will enjoin the minute it passes. This will effectively accomplish nothing other than giving folks the satisfaction of “making a statement,” subjecting taxpayers to paying the attorney’s fees of the ACLU, and getting a County Clerk arrested by U.S. Marshals for disobeying a federal court order.
I want to do something, but I want to see the legislature do the best thing possible that will actually accomplish something positive.
One thing that might be possible and have a positive effect long term is to look at legislation that would begin to reconstruct marriage by re-instituting the elements of marriage that heterosexuals took out of the definition years ago, for example, the notion of permanence we removed with no-fault divorce laws.
But I don’t hear anyone talking about that. That kind of bill would be hard work, and it might not be liked too much by heterosexual voters who view themselves as having a “right” to walk away from a marriage if they are no longer in love or are unhappy
We’ve not had a discussion about that aspect of marriage for a long time. But if we’re going to talk about marriage, why not talk about all aspects of what constitutes a marriage?
Taking What the Court Gives
Interestingly, the Court has left the aspect of marriage dealing with permanence open to the states to talk about and act on. I have to guard against my tendency to want to attack the Supreme Court for completing the journey to the deconstruction of marriage and to avoid talking about any complicity I might have in initiating that journey or in allowing it to proceed unabated for decades. The former is an easy conversation and the latter not quite so pleasant.
We’ve got a long, slow journey back to a right understanding of marriage, and in my opinion, we need a much deeper, broader, and serious discussion about how to get there than the ones I’m hearing now.
For an excellent series of articles by Jennifer Roback Morse of the Ruth Institute on whether “getting out of the marriage business” is possible or practical, check out the following links:
- Privatizing Marriage Is Impossible
- Privatizing Marriage Is Not the Answer to the Same-Sex Marriage Debate
- Privatizing Marriage Is Unjust to Children
- Privatizing Marriage Will Expand the Role of the State
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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