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Marriage defined long before battle of legal rights

Nov. 9, 2004

By SKO EMBRY, reporter

I don't know why I'm so excited that 11 states banned homosexual marriage last week. All they did was legally reinforce some ancient news -- marriage is between one man and one woman. Maybe I'm excited because homosexual marriage advocates lost on their own ground. If marriage is to be redefined as a convention of the state, that convention isn't legitimate until the state says so. Last week, 11 states said no.

Traditionally, marriage has not been a state function, but an institution recognized by the state because it is inherently good. Only recently have some pushed for state reinvention of marriage. But long before rights were viewed as a government action, long before the U.S. Supreme Court had the power to hand out rights like candy at the homecoming parade, men and women were getting married in the church without concern for legal rights. The religious procession that historically accompanies marriage testifies that its legitimacy lies in a transcendent order, not in the courtroom.

To legally recognize homosexual marriage legally is to sever marriage from its metaphysical roots. Radical liberals have not disputed this for the most part. Their arguments aren't about the nature of marriage itself, but about what homosexual people deserve -- equality, benefits, legitimacy and so forth. No longer anchored in the belief in a transcendent order, marriage becomes an arbitrary convention. Marriage would then be as contrived as the legal driving age.

If marriage is merely a convention, like the driving age, then there can't be anything wrong with denying it to anyone. The most that can be said is that such a denial is inconvenient, like not driving until 16 years old. If, on the other hand, marriage is real and between a man and a woman, then no man is denied anything when told he can't marry another man. I'm not being denied my rights when told I can't marry my pet tarantula. I'm merely being taught what marriage is and isn't. Besides, marrying a tarantula would be wrong, and it doesn't make sense to say that I have a moral right to do a moral wrong.

The homosexual marriage argument is about legal rights and the state's function, not moral rights. As such, the playing field for the argument is in the state and national legislatures and, unfortunately, in the courtroom. This is where homosexual rights advocates win or lose the battle for homosexual marriage.

Last week homosexual marriage advocates lost their battle fair and square. By their own definition of marriage rights -- rights are created by the state -- homosexual couples don't have the right to marry. This is probably only a setback in their crusade for legal license. That's the sort of beauty of legal arguments. If a moral argument is lost, it's over. If a legal argument is lost, get better lawyers and try again.

But the precedent has been set in those states, and it will probably take an act of the U.S. Supreme Court to declare the ban on homosexual marriage unconstitutional. Considering the history of the Supreme Court, I don't expect that to take long. But President George W. Bush might get to appoint several Supreme Court justices this term, which could presumably create a majority that isn't judicial-activist friendly. If it's too long before the court gets a chance to strike down the ban as unconstitutional, it might be a lifetime before liberals get the majority and before homosexuals get another shot at commandeering an ancient tradition.