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April 30, 2013

KING: Marriage in the dock: Indiana vs. the world?


Despite this increased favorability for same-sex marriage, 41 states disallow same-sex marriage, including Indiana, either constitutionally (30 states) or statutorily (11 states). The issue is not going to be easily resolved, or wholeheartedly accepted, whatever the court’s decision if one can judge from the strong support of various groups and individuals who congregated outside the Supreme Court building to vocalize their opposition to or support for same-sex marriage during the Court’s hearings last month.

Both proponents and opponents have their various reasons to explain why governments should, and even must, sanction marriage, including personal, cultural and procreation. A growing defense against government sanction of marriage, however, is privatization. This argument is generally supported by libertarians, who maintain that removing government from the equation will solve the problem. Still others argue the issue should be devolved to the states with little to no federal government intervention.

Let’s look at the privatization question. It takes two different positions: Remove government from strictly regulating marriage, whether at the federal or state level, thus allowing any couple to marry for any reason; or treat marriage as any other contract, and allow government to enforce the terms of the contract, just as it does in any business relationship.

Proponents of privatization contend that it reduces government regulation and rules. In addition, it resolves the same-sex marriage dilemma by placing such relationships on the same level as traditional marriages without requiring government support. Others even argue for using different nomenclature: civil unions for homosexual couples and marriage for heterosexual couples, but with each benefiting from all government benefits.

Supposedly this is a win-win situation. But is it?

A 2002 law-review essay supports the Indiana position in concept and specifically argues against a “privatization” of marriage to include homosexuals. Two Regent University scholars, Lynne Kohm and Mark Yarhouse, contend that the constitutional fundamental-rights doctrine does not apply to marriage of same-sex couples. In order for the doctrine to apply to any group or issue, whether it is the right to bear arms or marry, the participants must meet basic requirements. To marry, for example, the minimum requirements are: 1. the parties be of the minimum age; 2. marry only one person at a time; 3. are unrelated by blood or marriage; and 4. are of different sexes.”

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