Why I Oppose The Federal Marriage Amendment

MensNewsDaily.com ^ | December 11, 2003 | Roger F. Gay

[RogerFGay]

Why I Oppose The Federal Marriage Amendment

December 11, 2003

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by Roger F. Gay

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Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

It's a political case; one that looks, feels, and smells political from top to bottom. It's a proposed solution that looks responsive in a minimalist superficial kind of way; created entirely without delving into the details of the problem it is supposed to address. It does not address the problems that led to the proposal, and it is a course of action that is likely to fail.

Why do we need a constitutional amendment to validate one of the most well established elements of human and natural law? The answer is quite simple. The federal government intruded. The redefinition of marriage seems at this point to be a product of state courts with opposition from political parties. But, the new decisions by state courts creating same-sex "marriage" have not redefined marriage. From a legal perspective, marriage had already been redefined. The courts merely applied the new definition in view of constitutional principles, recognizing the universality of certain rights with respect to protection against government intrusion.

The problem would not exist if constitutional rights that defend the population against government intrusion had been consistently applied throughout the past quarter century, but they were not. The arbitrary political  treatment of family policy began with so-called "no-fault" divorce. This article does not intent to present the pros and cons of that particular radical change in family policy. But, once states had decided to stop basing divorce decisions on reality and circumstance and a spouses commitment to their own solemn promise, a wall was broken. Many commentators at the time said that marriage had been abolished. Individuals, needs, and facts, as viewed through individual case review in courts no longer had much to do with it. It was then up to legislators to begin making arbitrary en masse decisions.

It was only a matter of time before special interest groups recognized the power shift from courts to legislatures; from individual rights to arbitrary political treatment. Given that special interest groups such as NOW which got the most attention from the press were national organizations, it is doubtful that anyone broke a sweat moving family law issues from state legislatures to the U.S. Congress.

Marriage as we knew it may have been abolished when "no-fault divorce" was introduced, but something had to emerge in its place. Marriage licenses were still being issued. People were still going through the ceremonies and building families. Nature mixed with human cultural evolution -- changes in law would not put an end to the behavior.

Congress overplayed the hand. The federal government wasn't supposed to be involved in family law to begin with. It involves authority that is reserved to the states and to the people. For the federal government to get deeply involved to begin with, there was no option but to begin weaving a tangled web. Congress did it with a vengeance.

Today, from a legal perspective, marriage is no longer a sacred institution that is defended against government intrusion under privacy rights. Marriage is a function of government, indistinguishable from the granting and distribution of welfare benefits.

In the Massachusetts decision establishing same-sex "marriage" the court wrote: "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State." Even in dissent, justices reinforced the new nature of marriage. Marriage is "deeply rooted in social policy" that must "be the subject of legislative not judicial action."

The idea that marriage and family are defined as "social policy" is quite new in the United States. Marriage was a sacrament involving a solemn oath and bound to the most fundamental elements of human nature. Now it is merely a statutory construction swinging freely in the breezes of public mood and political manipulation.

I oppose a constitutional amendment to address this problem because it does not address the problem. It preserves the new meaning of marriage and family as a government function, even extending it to a definition given in our fundamental political document, the constitution.

And I oppose a constitutional amendment to address this problem because it avoids critically needed discussion on family policy during this election year. "Let's just calm down and wait," say the politicians. First we'll wait and see what the U.S. Supreme Court says. Then, perhaps try a constitutional amendment – even though that is unlikely to succeed.

Let's not wait, I say. The problem is clear. It is a critical, basic, definitive political problem. It is an election year. Let's discuss it now.

Roger F. Gay

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Roger F. Gay is a professional analyst and director of Project for the Improvement of Child Support Litigation Technology. Other articles by Roger F. Gay can be found at Fathering Magazine and the MND archive.

[RogerFGay]

ping

[Alberta's Child]

Marriage as we knew it may have been abolished when "no-fault divorce" was introduced . . .

This is incorrect. Marriage as we knew it was effectively abolished once the Federal government started implementing progams, policies, and tax laws that treated married couples differently than individuals. There would be no impetus to change the "definition" of marriage if there were not some kind of benefit to be gained by it (Social Security benefits for surviving spouses, joint tax returns, etc.).

I agree that the Federal government has no business getting involved with defining marriages, but this article seems to make the case that the proposed Federal Marriage Amendment is the first step in this intrusion. This outlook is utterly naive.

[lelio]

Congress overplayed the hand. The federal government wasn't supposed to be involved in family law to begin with. It involves authority that is reserved to the states and to the people. For the federal government to get deeply involved to begin with, there was no option but to begin weaving a tangled web. Congress did it with a vengeance.

Good point. Thanks for posting.

[farmfriend]

bttt

[longtermmemmory]

If you codify a common law concept it gets broad interpritation.

If you codify something that does not existe at common law the statute gets a narrow interpritation.

Marriage gets a broad one man one woman sweep because it is of common law origins.

Adoption, for example, does not exist at common law and is interprited narrowly to the statutory paramiters.

[longtermmemmory]

The federal marriage amendment is a repair job to get teh feds OUT of the marriage definition business. Specificall to get it OUT of the the hands of Occonor and Ginsber who are no longer to be trusted. It would terminate a whole chapter of the homosexual agenda by putting it in black and white.

The author MIGHT have had a point before lawrence and mass however, the new reality mandates the adoption of the FMA. His opinion is as outdated as yesterday's news.

[Orangedog]

Last year I might have believed that a constitutional amendment might be able to correct the problem with the divorce courts, but not anymore. Just take a look at that bowel movement of the US supreme court that they tried to pass off as a ruling on campaign laws. The highest court in the land blatantly upheld a law that restricts freedom of political speech, even when confronted by a constitutional amendment (the first one, at that) that clearly says CONGRESS SHALL MAKE NO LAW regarding freedom of speech. The judges at every level will ignore the local, state, federal, even the highest law of the land, the constitution itself. They no that they cannot be held accountable in any meaningful way. And to top it off, the people just don't care. If this is what the people want, fine. I never believed in trying to save anyone from their own stupidity in the first place. We should all try to enjoy the next ten years in the US, because it won't be around after that.

[Alberta's Child]

The Federal Marriage Amendment, as I understand it, is an attempt to codify the definition of marriage so as to protect one state from being subject to the whims of another state's idiotic definition of "marriage." As it stands now, a marriage license in one state is considered valid in any other state in which the holders of the license decide to live. As long as this is the case, it is impossible for the Federal government to get out of the business of "defining" marriage.

By the time this issue has run its course, the legal and social scene in this country is going to be so disordered and chaotic that the Old Testament Tower of Babel incident will seem like the functioning of a well-oiled machine.

[longtermmemmory]

Which is what the socialists want. The socialists who still believe the "great society" governemnt are just using the homosexuals as a wedge to rupture the family. They have decimated fatherhood, now they will decimate motherhood by removing children from marriage.

[John O]

It was only a matter of time before special interest groups recognized the power shift from courts to legislatures; from individual rights to arbitrary political treatment.

You're wrong. The power shifted from the legislatures where things were openly debated and voted upon to the courts where law was now made by decree.

The only way to fix this is to lay the definition out in such terms that cannot be interpreted otherwise.

Then we can work to get the gov out of the marriage business. But first we have to protect the patient from more harm.

[GigaDittos]

Roger F GAY?? Is this a joke?

[Gorjus]

The only way to fix this is to lay the definition out in such terms that cannot be interpreted otherwise.

And how would you do that? The 1st Amendment says, 'Congress shall make no law . . . abridging freedom of speech' and the Supreme Court just ignored that utterly.

Here's a rationale (I'm not advocating it, just predicting it). Marriage will be considered one of the 'privileges and immunities of citizens of the United States' which can't be abridged. 'Equal protection' of all citizens will required that homosexuals be granted the right to marry. Next issue.

Oh, you say there's another Amendment that says something different? Well, that's where 'intepretation' comes in - as the judges will be quick to remind us peasants.

Qui custodiat ipso custodes?

[StonyBurk]

Disagree that the amendment does not address the problem.
IT does--but so obliquely. The problem is the Federal
oligarchy of Despots(the Judiciary) has become involved
and the Federal LEgislature has been unable --or unwilling
to act on Article III and reign in what was intended to be
the weakest branch.The marriage amendment does address the
problem by placing(if ratified) in the Constitution a
statement that the Federal Court would have to obey --or
prove (yet again) their disdain for the COnstitution they swear to defend.

[xzins]

The constitutional amendment needed is that which calls for presidential appointments of justices to the supreme court to end. These judges need to be elected AND they need to be for a 6 year term that is renewable. That will provide more than enough longevity to allow for independence. Let there be classes of 3, and let 3 be up for election every 2 years. Let it be a national election, or let the nation be divided into east coast, central, and west coast with an exact geographical division that does not divide any state.

Get this office into the hands of the people.

Lower courts can be appointed.

[zx2dragon]

I've been saying from the beginning that I am trying to get the .gov out of my life as much as possible. I believe marriage should be a religious institution and that the .gov can fill in for those of no faith.

[aristeides]

If Mr. Gay's point is that he won't support the Federal Marriage Amendment because he's going to hold out for an end to no-fault divorce, I'm afraid he's going to be waiting forever.

[xzins]

My sense, too.

I don't believe a marriage amendment will change anything either.

Similar to changing the manner of acquiring our senators by amendment, I'm convinced it's time to change our manner of acquiring Scotus justices.

[RogerFGay]

I really don't think election of Supreme Court judges is a solution -- quite the opposite. Many local and state judges are now elected, and that's part of what has destroyed the judicial branch of governmnet everywhere. Judges must be beholden to the constitution, not to public mood and special interests.

[RogerFGay]

Then are you going to replace judicial decision making entirely by writing a constitutional amendment to cover every single decision that could ever be made regarding any subject and circumstance?

This sort of political action has nothing whatsoever to do with how our system (as formally written) is actually supposed to work. Marriage and family is something defined outside of government and partisan politics. Government is required to respect that. If you say now that they don't have to unless there's a specific constitutional amendment, you're burning the last bridge back to constitutional rule.