Marriage and the Rule of Law

Here's the thing with Governor Linc Chafee's executive order: It simply isn't possible to support it and plausibly believe that government should represent an even playing field with divided powers, agreed-upon definitions, and consistent rules for changing policy toward one's own preferences.

Look, I was arguing against same-sex marriage before the topic was hot. And for a few months before that, I was arguing for same-sex marriage before that was cool. I state that merely by way of claiming some authority for the assertion that the arguments really haven't changed much.

What has changed — or rather, what never materialized — is a lack of concern among either vociferous or passive supporters of same-sex marriage about the means of its implementation. I do believe that a society that denies itself the ability to treat responsible procreative pairings as something special has increased its likelihood of deterioration, but if it undermines the rule of law in doing so, it's surely doomed.

Back in 1904, the Rhode Island Supreme Court made a much-cited ruling in a case called Ex Parte Chase that a marriage performed in Massachusetts was valid in Rhode Island. Specifically, the marriage involved a couple that had crossed the border in order to evade Rhode Island's guardianship laws. The non-consenting parents were not able to undo the license.

Nobody questioned that the relationship was a marriage. Indeed, the pair could have been married in their home state if their parents had been more permissive.

That's a long, long way from insisting that one state can change the very definition of the relationship that marriage is meant to indicate, forcing others to recognize them as something that they do not believe them to be. Yet, in February 2007 RI Attorney General Patrick Lynch took the opportunity of a request for an advisory opinion to do just that.

While offering his office's legal opinion on the narrow matter of a government agency's providing employee benefits on the basis of a Massachusetts marriage, Lynch let his thoughts wander to much broader legal matters. In the final paragraph, though, the scope of his project returns to its actual (though still objectionable) authority: "we advise the Board of Governors that it should accord marital status to its employees who were lawfully married in Massachusetts."

Basically, it was a legal CYA memo that the official legal counsel for the State of Rhode Island would defend a particular side of the argument in court. If anything, though, Lynch's reasoning has less force now, because the state has enacted civil unions as something explicitly different from marriage. In a rational world, it would be acknowledged that same-sex marriages are against the state's public policy.

But we don't live in a rational state.

Instead, we have a governor returning to his regular practice of pushing executive authority to (and past) its limits. His executive order on same-sex marriage goes well beyond the in-house distribution of employee benefits:

All executive state departments, agencies, and offices shall recognize the lawful marriages of same-sex couples as valid for any purpose arising with the execution of its duties.

Gay & Lesbian Advocates & Defenders (GLAD) lists a few of the instances in which the governor's order will change policy, but their compilation is surely too limited. The "duties" of state agencies are pervasive and reach well into the private sector. State agencies license; they regulate. What the governor issued today was an invitation for the filing of lawsuits.

I'd be surprised if local activists don't already have some targets in mind. Are agencies tasked with investigating discrimination now required to "execute their duties" when private parties don't recognize Massachusetts marriage licenses? Are bureaucrats that promulgate regulations now to enforce a new definition of marriage?

Be a little creative, and possibilities come quickly to mind. And with the route by which advocates have pursued the incremental imposition of their policy preference outside of the democratic process, it is less likely that their opposition will win protections that might otherwise have been carved out during legislative negotiations. Continued tolerance of private citizens with a different view will be reliant upon the benevolence of those imposing the definition.

Thus, the whole project comes back around to recasting our government as one governed by pure power.