Marriage and Free Association

The current debate over gay marriage brought on by United States v. Windsor is an important one, but it is important to look at how the government treats people who are married compared to those who aren't, and the role of marriage in society.

I could argue that gay marriage is  not a priority, compared to laws that discriminate based on marriage.  The current tax system and immigration system do more to violate rights than anything.  Under the current tax code in the US, Canada, and most industrialized nations, a person is taxed differently based on their marital status. Not only does this  discriminate against single people, and families with two working adults, it violates the right to be secure from unreasonable search, since it requires taxpayers to report their marital status, and those who report their status inaccurately can face jail time.

If we look at United States vs. Windsor we see that the tax code discriminates against people who are not legally married for any reason.  As such the Supreme Court should rule that the United States violated due process by simply asking Edith Windsor her marital status. Her 4th and 5th rights were also violated by the IRS and DOMA since they put her in a position of committing fraud based on how she reported her marital status.

David Brooks supports gay marriage because he believes it will place gays in such an arrangement.  There has been a long effort since Stonewall to turn what was a crime in all 50 states and a mental illness, into something that is considered normal.  This is a tremendous victory for liberty, still it is not fair to extend freedom only to those things that are considered normal.

Brooks seems to think a minor deviance is acceptable, but that everyone must follow the same path.  Gays were not acceptable so long as they were associated with bathhouses and nightclubs, does that mean that strait people who look for love in nightclubs are as acceptable compared to those who have met someone to share their life with (or a portion of their life).

Marriage as it exists now is always exclusive, and lifelong; marriage is seen as an equal relationship, but the laws around alimony. and taxation presume a dependent partner.  This does not reflect the reality of homes with two working parents, or of .  The presumption that marriage is lifelong means any marriage that ends in divorce is a failure.  If two people marry raise a family then separate after their children grow up, it isn't fair to call them a failure.  A person isn't a failure if they leave a spouse who is abusive or cheats.  It isn't a failure when two people who married breakup after being together for less time than many couples who did not get married.

Certainly gay marriage does not restrict the freedom of those who wish to not marry gay or otherwise, and a person should not oppose recognizing the right of gays to due process because they oppose to the licencing of marriages.Recognizing gay marriage equally would at least give one group of people freedom they haven't enjoyed before.  Tax law would still discriminate based on marital status, but would no longer consider same sex marriages illegitimate, at least for gays who live in states that recognize same sex marriage. The debate over gay marriage does offer an opportunity to reevaluate the nature of marriage in our society and it would be a mistake to leave to view the debate over gay marriage as simply being over extending marriage as it currently stands to gays.