Alexander's Column

End the Wedlock Deadlock

Mark Alexander · Feb. 6, 2004

The Massachusetts Supreme Judicial Court has introduced an issue that must be dealt with seriously and soberly during the coming days – in declaring on February 4th, to clarify its narrow 4-3 vote from November 2003, that marriage in the Bay State must be redefined to include same-sex pairs. (The Massachusetts legislature had asked if creating a “parallel institution” of “civil union” might suffice to carry out the judicial mandate to go into effect this May, and the SJC answered that it would not.)

The November SJC decision turned on various falsehoods and misinterpretations, chief among them the view that the courts treat equality before the law as a condition not merely of individual citizens but of couples and groups. “The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the one-vote majority opinion read. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” Please note the easy sleight of hand in the language switching between equality lodged in terms of couples and equality of individuals. Marriage, properly construed under Massachusetts law heretofore as a relationship between one man and one woman, is not denied to any individual who wishes to marry and has a willing opposite-sex partner. What is denied is redefining marriage to include any other relationship. Persons with a preference for homosexual relations may prefer not to marry, but they surely are not prohibited from finding a member of the opposite sex and marrying, the blather of the SJC notwithstanding.

These jurists continued in their November ruling, “Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily [italics ours] deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.” We find nothing arbitrary at all about defining marriage as only a relationship between one woman and one man. Indeed, the state constitution does not regard homosexuality as normative – the precept upon which the ruling depends – and the precept that makes the court’s ruling unconstitutional.

Again, nothing but the individuals’ choice not to marry but to enter instead into a homosexual relationship is barring their access to marriage; the state is not making the decision for such same-sex individuals. Respecting individual autonomy is thus consistent with traditional marriage but inconsistent with these judges’ decision. And under this ruling, an individual with a homosexual preference not only possesses the right to marry (a person of opposite sex) but also to enter into a new legally recognized same-sex pairing – an inescapable and grim inequality the court chooses to ignore.

The issue here is, in large part, the legality of a state judiciary ordering the state legislature to take a certain action; namely, amending the state’s constitution. Clearly, a legislative function for the courts does not exist. At the same time, in keeping with the U.S. Constitution’s Tenth Amendment, it would be permissible (though incalculably foolish) for the state legislature to accommodate “civil unions” of its own accord, or even to codify “gay marriage.” The only means to prevent either action, seemingly, is an amendment to the federal Constitution. This, of course, has the potential consequence of granting the central government a heretofore unacknowledged jurisdiction over marriage.

“We have recognized the long-standing statutory understanding, derived from the common law, that ‘marriage’ means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question,” the SCJ went on. But refusing to treat as settled questions “long-standing” laws and common law is rare – and especially so if the common law was predicate to the constitution in question.

The court majority further wrote, “The marriage license grants valuable property rights to those who meet the entry requirements, and who agree to what might otherwise be a burdensome degree of government regulation of their activities.” Sorry, but again this is simply wrong. The marriage license grants no property rights; property rights inhere in individuals. Instead, marital property rights merely recognize property rights that a husband and wife, and possibly their offspring, create and share within their family. “The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death,” these Massachusetts jurists continued. Wrong again – far from being “enormous,” few if any benefits conveyed by a marriage license cannot be arranged through private legal agreements between individuals.

And a final bit of folly: “Without the right to marry – or more properly, the right to choose to marry – one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed commitment to an intimate and lasting human relationship’.” As observed above, same-sex couples have precisely chosen not to marry because of their preference for homosexual relations; they could choose otherwise, and the state of Massachusetts would not condition access to a marriage license on the basis of whether either or both in the heterosexual couple in question had a homosexual preference.

That this wrongly reasoned decision has been followed with a judicial mandate to redefine marriage to include “gay marriage” is serious on two levels.

First, redefining matrimony to include so-called “gay marriage” splits into opinions based on worldviews. Is homosexuality a behavior that an individual can – indeed, must – control, as moral common sense holds? Or does homosexuality convey an identity that government must recognize and force citizens who disagree to accommodate, as the politicized “gay agenda” demands? Simply put, is homosexuality properly a public matter of government policy, or is it a private matter of individual morality?

Second, who in our constitutionally-based republic properly gets to decide whether marriage ought to be redefined in this way? Is this correctly the purview of a single judge in a small state of our nation (remembering that the Massachusetts decision arrived on only a 4-3 vote)? Is it even rightly the proper role of the judiciary, under our Constitution’s republican separation of powers, to institute such a massive social change? And, as our view is that the Constitution rests completely on the natural rights worldview of Our Founders, including the natural right of one man and one woman to form a natural family (that is, one that arises without state interventions), does this Massachusetts decision not overturn all our laws binding our nation together, by asserting a “positive rights” evolution of legal understandings? And thus we not come right back around to the worldviews at loggerheads….

Why, you might ask, if natural family formation occurs without state intervention, should our government recognize and support even natural rights marriage at all? A central reason is that the natural family, sharing labor and dividing tasks according to their particular needs and circumstances, acquires property rights in common, and creates assets to provide for the family’s offspring. The state thus has a legitimate role, incidentally supporting the stability of that family relationship, in assuring its laws cover proper transfer of those family property rights on death of a parent or dissolution of the marriage through divorce. (Must we make explicit the obvious, that same-sex cohabitants cannot by themselves produce natural offspring? The key point is not that married couples can be infertile, so that some natural families will be childless couples; what’s essential is rather that no same-sex couples can naturally conceive children.) Moreover, the family is the incubator of the next generation of citizens, who should be brought up in a culture of liberty to assure their future stewardship of our constitutional system of ordered liberty.

Our view, of course, is in defense of the natural rights marriage, and an amendment to the Constitution now seems to be the only way to recover that aspect of the natural rights foundation of our system of laws. We are sympathetic to those who oppose creation of “gay marriage” by such judicial fiat as the Massachusetts SJC’s but are also unsupportive of righting the wrong through the constitutional amendment process. The Patriot Post is generally likewise opposed to festooning the Constitution with amendments; we consider most such proposals frivolous and possibly dangerous. (A constitutional convention, please recall, could be used to revoke portions of the document that are essential to our national liberties.) However, if we believe the Massachusetts high court’s action to be unconstitutional and to have no basis whatsoever, and yet we take no action to respond, there is a substantial likelihood the rest of the nation’s courts will impose “gay marriage” nevertheless, and what will have been wrought then, other than further subversion of our constitutional system and violation of the freedom of conscience of those with moral and religious objections?

Indeed, Congress has already acted to stave off imposition of same-sex marriage as a newly invented “right” crossing interstate borders, in 1996 passing the “Defense of Marriage Act” (H.R. 3396), which President Bill Clinton signed into law, allowing states to refuse recognition to another state’s grant of same-sex marriage licenses. Those pinning their hopes on the 1996 DOMA to survive an appeal of the SJC ruling to the Supreme Court may be planning to invoke it in tandem with a portion of the Constitution’s “full faith and credit clause” requiring states to recognize each other’s laws in Article IV, Section 1: “…And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceeding shall be proved, and the Effect thereof.” But if DOMA did not restrain the Massachusetts SJC from inventing a redefinition of marriage (and what other redefinitions may soon follow?), even with acknowledgement it was overturning traditional legal understandings and common law and setting up a clear legal conflict, a federal marriage amendment to the Constitution seems the only recourse remaining.

But what form should that amendment take? We have been persuaded by the suggestion that a federal marriage amendment have three prongs: first, reserving the term marriage for a relationship of one man to one woman; second, barring the central government and state governments from creating a “civil union” institution predicated on sexual relationship; third, prohibiting courts from overturning any legislative decision reserving certain benefits to married couples only. Please note what this would and would not do – and what would be taken out of the debate. If, as the politicized homosexuality advocates claim, this is just about access to benefits, state legislatures could create a “civil union” that would cover homosexual couples – but without excluding any other two persons not in a sexual relationship from equal access to those benefits. Thus, the bedroom behavior of any couple would not be the government’s business, as that would not be part of access to benefits. If, though, this argument is really about forcing those who disagree to accede to the Leftist view that homosexuality is equivalent to normal marriage, the “gay agenda” lobby will oppose it. Care to guess which course the Leftist activists will take?

And on a pragmatic note, the mere act of bringing forward a federal marriage amendment may avert further potential judicial activism on the matter. But the debate over redefining marriage to cover homosexual couples, now forced into the campaign mix, is one that both the Republicans and Democrats would rather have avoided. Team Bush (and the earlier Campaign Bush) have studiously tried to keep contentious “social issues” disagreements out of the public discourse. (Hint: They derived the wrong lessons from the 1988 and 1992 Bush(41) campaigns.) However, the Democrats understand that they will lose such debates – if those are conducted publicly with the Right side being given fair hearing. That’s why we often remind that not only does conservatism work every time it’s tried, but also that conservatism wins whenever it’s adequately defended.

And if the Democrats’ current front-runner, John Kerry, the junior U.S. Senator from Massachusetts, is the eventual Democrat presidential nominee, how is he going to straddle the “progressive rights” stance of his state’s high court, while appealing to the broad national majority favoring retention of the natural rights view of marriage as a relationship between one woman and one man? His first try was the politico’s typical “both sides” dodge, saying that he favors government granting “full and equal rights” to homosexual couples while opposing “gay marriage.” By the way, Kerry in earlier comments has let on that he really believes in instituting “gay marriage” eventually … just not now while majority opinion is opposed, so that the outcome must be achieved by stages and by stealth.

A few facts that ought to add to the judiciary marriage-remakers’ consternation: A New York Times poll from a few weeks back discovered that across nearly all segments of the U.S. public, homosexuality is disfavored more than it is favored. About half of those queried (49%) preferred laws making homosexual relations illegal (to 41% for legalization), over three of five (61%) opposed “gay marriage,” and a sound majority (55%) favored a constitutional amendment to retain traditional marriage as a one woman, one man relationship. No one can possibly argue, given these numbers, that any instrument of government has “consent of the governed” among the U.S. populace to bring about same-sex “marriage.” (Only those in the 18-29 years of age group differed – hence, Kerry’s “eventually” it’ll happen hint.)

Those arrogant Leftists who style themselves “progressives” should further be pinned down on their lip service to the “full faith and credit” clause of the Constitution. That phrase appears in the Constitution’s Article IV, Section1, reading in part, “Full Faith and Credit shall be given in each State to the public Acts, Records, … of every other State….” Various states have already passed measures reserving the definition of marriage to refer to a relationship between one man and one woman, and California’s Prop. 22 was enacted by a direct vote of the people of the state themselves rather than through a vote of their representatives sitting as the legislature. Why, then, is the Massachusetts Supreme Judicial Court not uniformly condemned as being in flagrant violation of this piece of the Constitution, and why is this clause treated as only a one-way street inexorably leading to nationalized “gay marriage”?

In sum, as we’ve outlined, enactment of a federal marriage amendment is faithful to constitutional understanding and practice; redefinition to cover “gay marriage” isn’t. Regrettably, we the people must clarify the Constitution in regard to marriage, lest it be willfully misinterpreted and misused. This path would be unnecessary but for a contingent of judges bent on a course of “progressive” judicial activism to bring about laws the people would turn aside through republican means. This is about fidelity – fidelity in and to marriage and fidelity to our Founding Documents.

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