By Roger F. Gay
It appears as though a bizarre decades long conspiracy between those who openly support the end of marriage and a group of fake social conservatives will reach its goal. According to news reports, the dry parochial comedy that took place in the nation's highest court was like a section of cliff notes for the lengthy propaganda campaign. Marriage as we knew it, they say, is merely the invention of sick white male heterosexuals aimed at domination and privilege and enshrined in religious tradition. Ruth Bader Ginsburg spoke of the struggle of women against the institution while advocates compared equal rights for homosexuals to the civil rights of people of color. Those pretending to defend marriage played stereotypical straight men. (I see the pun here.)
This article will explain why it doesn't matter which side claims victory. At the heart of the matter is that marriage has already been redefined. The current case is a show trial – a scam. Let me put it in context.
You can peruse an optimistic view from a “traditional marriage” supporter here. The author takes comfort in “conservative” arguments on the long-standing recognition of marriage as a union between a man and a woman with a religious freedom argument tacked on. If you've been paying attention, you should already see a problem. This is yet another repeat of the DOMA effort that has failed in every instance. How many times must courts reject these arguments before common sense prevails? If the USSC declares marriage to be a state issue, allowing conservatives to imagine victory for a day, these arguments will lose again in state courts. Checkmate.
More to the point of this article; Why is it that those arguments cannot win?
The feminist spin on the history of marriage cited by Ginsburg was actually more telling; although it simultaneously derails the truth with a bold-faced lie. “Marriage today is not what it was under the common law tradition, under the civil law tradition,” she said. Quite right. Marriage has been redefined. From a legal perspective in the US, now, it is not treated under common law or civil law “tradition” (her word). In so saying, she's pointed out that marriage has already been removed from the previously established context of Western civilization. The redefinition was not trivial. It was fundamental and profound. There are no civil or individual rights related to the current definition of marriage. That's exactly what it means to remove common law.
The argument then throws in some Nancy Pelosi style misdirection. “Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down.” In this familiar view, all men are evil and Western Civilization was just a conspiracy by some old dead white men and deserves to die. The end of common law “tradition” (civil rights) is a good thing. But no matter how you feel about the prattle, marriage has already been redefined and it's current definition is not legally touchable with traditional civil rights or even rational arguments. Marriage is no longer a private institution. As a matter of law, it is an arbitrary politically controlled state entitlement.
How did that happen, you may well ask? At least two major transforming events have taken place during the last half century.
The first was the introduction and national acceptance of so-called “no-fault” divorce. First introduced by Ronald Reagan in California in 1970, it meant the end of the view of marriage as a civil private contract. Following on the heals of 1960s social and political upheaval, it brought an end to personal responsibility in binding relationships, followed soon after by the decision in Roe v. Wade. Philosophically, it can be argued, the end of personal responsibility fundamentally undermined the value or credibility of the individual and devalued interpersonal relationships. What replaced it was the power of the state to dictate terms, “saving individuals from themselves,” it has been phrased, by making a person's word or promise relatively meaningless in the eyes of the law. It should cause one to think down the road to Strelnikov's chilling comment to Dr. Zhivago. “The personal life is dead in Russia. History has killed it.” Since then, it has become extremely common for women to abandon their husbands (or fathers of their children) and send them the bills, which are not avoidable even in death. “No-fault” was a marketing term for arbitrarily assignable obligations. It was the opposite of the established rules of traditional marriage, a private “institution” in which court ordered obligations were derived from circumstances, necessities, and promises, and individuals were given protection from arbitrary state interference.
The second event struck a death blow that needn't be the subject of philosophical dialog. Ronald Reagan (again) introduced a more direct redefinition of marriage as part of a perfectly meaningless and politically profitable effort labeled as “welfare reform.” If you watched television news (especially CBS), or talk shows on TV or radio, or read a newspaper or magazine, or were exposed to any form of mass media in the mid-1990s, and actually thought about what you heard, the words of Hamlet might have come to mind. “The lady doth protest too much, methinks.” The subject was “deadbeat dads” in one of the most dramatically overplayed propaganda campaigns in history. It was really in fact only a copy-paste effort, directly comparable to The Russian Effort to Abolish Marriage described in a 1926 article in The Atlantic. That in itself should shed some light on the character of the people who promoted it. Ironically, despite all his patriotic talk; the red, white, and blue Big Government defense industry friendly former union president turned “conservative” icon issued a death warrant for traditional marriage, traditional American values, Constitutional rule, and most likely Western Civilization on the whole.
The only meaningful effect of late 20th century welfare reform was the federal takeover of marriage and family law which included its formal movement from civil law in the states to welfare policy. The transition from civil law to social policy meant that marriage was politically redefined from a naturally rooted necessity of civilization as we know it to an arbitrarily defined state entitlement. (accepted by federal court P.O.P.S. v. GARDNER, 998 F.2d 764 (9th Cir. 1993); USSC refused to hear appeal) As such, the only Constitutional consideration possible is equal treatment. Is the conspiracy clear yet? Fake social conservatives (Reagan Democrats) pushed heavily for these reforms and have since continued to play the losing DOMA game. DOMA has never survived an equal treatment review and that's the only game in town. Absent any argument for returning marriage to state jurisdiction and restoring its place in civil law, the ultimate conclusion is already clear. There is no real defense of traditional marriage, or any support of civil rights without it, and neither side has shown even the slightest interest.
While both parties fought for credit during the early Clinton years, mass media sources had still not let on that everything they'd told the public about the reforms was a lie. The cost of the welfare program increased with rampant cronyism and missing funds. New benefits were added and billions of dollars each year still go to “child support enforcement” without any public benefit; not at all surprising when you stop to consider the argument – all men are wealthy and poor single mothers only exist because men don't care about their children. Reagan himself topped it all off with the most poignant oxymoron of the era – politicians were finally defining and legislating enforcement of personal responsibility.
It took Newt Gingrich to end the relationship between marriage and family propaganda and classic literature and bring us into the era of Darth Vader. His “Contract With America” (1994), included the continuing battle between Republicans and Democrats to gain acceptance of an imaginary pseudo-personal relationship between the people and government, defined by a pseudo- voluntary contract rather than fundamental rules restricting government intrusion. It is clear that this relationship would have one dominant partner capable of redefining the terms of the contract at will.