Gay Marriage:ConstitutionWell, I’ve done it again. I’ve written something that—as we like to say in Texas—has gotten the tail up on the skunk.

My article “Religious Liberty: One Casualty in the War Over Marriage” has caused a stink among some of my readers. One claimed that if I liked traditional marriage so much I should move to a country where women are treated as property, since, as he argued, women were considered property in the Bible. Another basically told me to take my religious views and peddle them in hell. Most, however, said that government should just keep its nose out of marriage—that marriage is a religious institution, not a societal or political institution.

With all the flack coming in, I take comfort in the old World War II bomber saying: if you’re being shot at you know you’re over the target.

What I find most interesting is the libertarian critique that the state should butt out of marriage. This is the view of Jay Caruso, who in “Conservatives, the GOP and Gay Marriage” argues that the federal government should stay out of the “marriage business,” as he calls it, and leave it up to the individual states to determine whether to grant marital status to same-sex couples. This appears to be a nice Tenth Amendment argument, but it is fraught with pot holes.

Caruso wants us to consider: “One can be opposed to gay marriage, but still show a willingness to understand it more as a public policy issue rather than simply a social issue” (emphasis mine). And then asks: “if two men have a marriage recognized by the state, what impact does it have on my rights?”

Good question. The answer is plenty—as I pointed one out in my article. But there’s an answer more basic, more fundamental to Caruso’s question, and I think Sherif Girgis, Ryan Anderson, and Robert George answer it beautifully in their book, What Is Marriage?

The only way to account for the remarkable fact that almost all cultures have regulated male-female sexual relationships [is marriage affects the common good in structured ways that warrant legal recognition and regulation]. These relationships alone produce new human beings. For these new and highly dependent people, there is no path to physical, moral, and cultural maturity without a long and delicate process of ongoing care and supervision—one to which men and women typically bring different strengths, and for which they are better suited the more closely related they are to the children. Unless children do mature, they will never become healthy, upright, productive members of society; and that state of economic and social development we call “civilization” depends on healthy, upright, productive citizens. But regularly producing such citizens is nearly impossible unless men and women commit their lives to each other and any children they might have. So it is a summary, but hardly an exaggeration, to say that civilization depends on strong marriages.

When it comes to marriage the thinking on the Right and the Left is too shallow . . . and too callow. What impact would redefining marriage and sanctioning same-sex unions, even if only by individual states, have on our rights? Well, what rights does anyone have in a crumbling civilization?

But Caruso, a confessing Christian, doesn’t think same-sex marriage will cause the civilization to crumble. He advises:

As for my fellow Christians, let’s take a step back from the “gay marriage is ruining marriage” rhetoric for one second, shall we? Over the last 4-5 years, quite a few well known Christian leaders (pastors, speakers, writers, etc.) would suddenly announce their marriage was breaking up. There would be vague explanations as to why, with references to “sin” and then a few months later would come the announcement they were getting married.


The Christian community, contrary to the facade so many attempt to erect, is filled with stories of abuse, addictions, neglect, divorce, affairs, and other sorts of dysfunction. The Bible basically says to check yourself (Matthew 7:3) before worrying about others. Try it before behaving as though same sex marriage will be the downfall of society.

Let me just say this about the judge not lest you be judged statement: Caruso completely misunderstands Jesus’s teaching in Matthew 7. Jesus isn’t saying don’t judge; He is saying be careful how you judge, especially when judging follow believers (read verse 2 carefully). Besides this, Christians have a right and responsibility to judge what God has already judged. And He has judged homosexuality (and every other form of sex outside the bounds of man/woman marriage) sin.

Caruso’s judgement of hypocrisy among the Christian community (does he violate his understanding of Matthew 7:3 by pointing out such hypocrisy?) is correct. Let judgment begin in the household of God (1 Peter 4:17). But hypocrisy doesn’t invalidate the truth. And the truth is homosexuality is sin . . . and sin isn’t good for society.


Neither sin nor marriage, nor what we might call sinful marriage, is purely individual; it is societal. And “if something would serve an important good,” as Girgis, Anderson, and George argue, “if people have a right to it, if private groups cannot secure it well, everyone suffers if it is lost, and the state can secure it without undue cost, then the state may step in—and should.”

Marriage is an important good, to individuals and society. But it isn’t something that private religious institutions can secure well—if for no other reason than that marriage isn’t strictly a private matter. And since marriage is a societal good, for the whole society or nation and not just a particular society or state, its loss causes everyone, nationwide, to suffer. For this reason, the federal government has a right and responsibility to butt into the “marriage business.”

The purpose of the Constitution, as laid out in the Preamble, is to, among other things, “promote the general Welfare”—sometimes called the “common good.” The general welfare (or common good) concerns what is inherently good for all citizens, for all times, and not individuals in the majority or the minority who happen to have opinions about the nature of marriage at this specific time. So, if marriage is redefined and same-sex couples allowed to marry, then the common good becomes something less common and less good.

But more than logic and the Preamble supports the federal government’s involvement in regulating marriage. The full faith and credit clause in Article IV, Section 1 reads:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

In other words, since the ratification of the Constitution a legal, contractual marriage in one state must be recognized as legal and contractual in another state. So, if my wife and I moved from Texas to Oklahoma (God forbid!), Oklahoma must recognize my marriage as legal; I can’t be compelled to file a marriage license or get remarried in Oklahoma. Here’s where it gets sticky, however: Massachusetts, for example, has made same-sex couples marriage legal. Should Texas recognize the “marriage” of a gay couple that moves from Massachusetts to Texas? Or what if a Texas lesbian couple travels to Massachusetts to marry and returns to Texas? Who’s law takes precedent? What is Texas’s obligation under the full faith and credit clause in the Constitution?

Something similar happened in 1993 in Hawaii, which led to the Defense of Marriage Act (DOMA) in 1996. For federal purposes, DOMA defined marriage as the union of one man and one woman and expressly exempts states from recognizing same-sex unions performed in other states. DOMA and California’s Proposition 8 are now being challenged constitutionally, which opponents have a right to do. But they, and my libertarian friends who want government to butt out, do not fully comprehend the consequences if the high court redefines marriage and allows same-sex couples to marry. Personally, I’m in favor of a constitutional amendment defining marriage as only being between one man and one woman. Such an amendment might be superfluous or more necessary depending on how the Supreme Court rules on DOMA and Proposition 8, but federally recognizing marriage as it has been recognized by every human society since the history of humanity is the only guarantee of fulfilling the Founders purpose of the Constitution—to promote the general welfare.

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8 Responses to Why the State Must Regulate Marriage

  1. Thanks for this, DJ. I would love to see the more positive side of your argument (man-woman marriage as a unique societal good) more often in the public discussion. In such a context of discussion, I’m not sure “homosexuality is a sin” will get Christians very far. The more positive angle at least has the potential to move the conversation forward in productive ways.

    That said, I am still thinking through the issue myself. In part I’m still grappling with the notion of conservatives making robust arguments for government intervention into the lives of people. 🙂 One question I have along those lines: Given marriage’s status as a common good, do you think the government should also regulate divorce (i.e. make it harder to get one in an effort to rescue/protect more marriages)? More than a simple yes/no, I’d be interested to hear the reasoning behind your answer.

    • Hey, Johnny Sunshine! Great to hear from you. I have some initial thoughts, but before I get to those I appreciate your careful comments. (I expect nothing less from you.)

      You make a great point about making positive arguments regarding man-woman marriage as a societal good. I’ll write something on that and try to post it next week. But, at this stage, let me say that we often need to make “negative” arguments to clear away the brush. And as I said in the essay, I believe the thinking, from both sides of the argument, has been too shallow and too callow in regards to the nature of marriage and whether same-sex marriage would be a human good. But leaving the argument where it currently is, is probably not enough.

      I find your comment about homosexuality and sin not getting “Christianity very far” interesting. At first blush I’m not sure we’re called to “get Christianity very far.” But knowing you, I know the spirit in which you made the comment. Obviously — and I’ve said this many times — Christians should never strive to be offensive or off-putting, even if the truth is. If people are going to find offense I’d rather it be by the truth and not my presentation of the truth. Having said that, however, the Scripture is clear on this point (as you well know): homosexuality is a sin, as is every form of sex outsides the bounds of marriage — which, by the way, I included in the immediate context. Clearly, if I’m trying to move a conversation forward with someone who practices homosexuality and doesn’t believe it to be a sin — or perhaps a non-practicioner who also believes not sin — I might take a different tact. But given that I was addressing a misunderstanding (of Matthew 7:3) from a fellow believer within the context of same-sex marriage I think we ought to call homosexuality what it is, what God calls it, sin.

      What especially interests me is that you’re “grappling with the notion of conservatives making robust arguments for government intervention into the lives of people.” I’m not a libertarian. I’m a Constitutional conservative. That is to say, I believe, as the Founders did, in “ordered liberty” — limited government and near unlimited liberty; liberty within the bounds of law. Perhaps James Wilson (signer of the Declaration and Constitution) will better explain my position, and give you something to chew on: “Without liberty law loses its nature and name, and becomes oppression. Without law, liberty also loses its nature and name, and becomes licentiousness.” Government is good and useful … when confined to the language of the Constitution.

      This gets me to your question about divorce. The simple answer is yes, government should regulate divorce, for many of the same reasons I articulate in the essay. No fault divorces have ravaged marriages and families, but a detailed reasoning will be best served in a separate piece. I’ll see what I can put together for you.

      • Thank you for the response, Derrick. I appreciate you answering my question.

        Just to clarify, I actually made reference to getting “Christians very far,” rather than “Christianity very far,” as you mentioned. My point was not really about advancing the faith, but rather about Christians who hold to a traditional view of marriage being a part of a solution in this conversation. I do believe that is, or should be, the goal of any conversation over public policy–to move the discussion toward productive solutions.

        Also let me say, when I wrote about Christians getting far in the conversation, I wasn’t thinking about the brief reference to the Bible and homosexuality in your piece, but more generally about the way the some Christians use the Bible as a hammer or a conversation closer in political conversations. I think we get ourselves in bad places when we use that strategy.

        • My bad, John. I miss read your comment — “Christians” not “Christianity.”

          Yes, I agree, which is why I said in my original reply I’d use a different tact if in conversation outside the bounds of the immediate context of what I was responding to. Now, I realize that even bringing it up in an open forum (like my blog) has the potential of closing the conversation with some readers. This is a tension not easily resolved, for there are times when good Christian folk, fearful of offending, become meek and mild in addressing what the Bible forcefully declares. On the other hand, there are times (no doubt more times than not) when good Christian folk use the Bible as your proverbial hammer — whacking anything and anybody who doesn’t square with Scripture. My hope was — but perhaps it was forlorn — that anyone could read the argument and not get lost in the tangle of the word “sin.” This is why I qualified the comment about homosexuality with other sexual practices outside the bounds of God’s intended design for human sexuality and tried to assert that pointing out Christian hypocrisy is a needed corrective, ergo the reference to 1 Peter 4:17.

          I’ll try and make a better and more positive case in the next piece.

  2. […] has always been sanctioned in American law. Because this is true, and for reasons articulated in “Why the State Must Regulate Marriage,” I believe government has a right and responsibility, not to redefine marriage from its […]

  3. Ben McLean says:

    The answer to all this is same-self marriage. We demand full marriage equality for bachelors, spinsters and other non-committed persons NOW!!

    ^ for the lulz

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