Posted on 02/05/2004 8:04:37 AM PST by RogerFGay
The Death of Marriage I
February 5, 2004
By Roger F. Gay
The decision by the Massachusetts Supreme Court to extend all "protections, benefits, and obligations conferred by civil marriage" on same-sex couples continues to be a subject of discussion and debate around the internet. Unfortunately, many liberals and conservatives alike have bought into the ideas suggested by partisan advocates. Much of the discussion is ill-informed and options are limited to those that will do the least good.
It can be quite difficult to move a debate from a state of superficial partisan bickering to clear and objective discussion, especially during an election year. Regardless of the fact that those who have focused attention on these issues for years know the answers, the average eligible voter will more likely grasp onto their preferred party's talking points and hold on for dear life.
One person who has focused a great deal on family issues for many years is ACFC president Stephen Baskerville. Regular readers of MensNewsDaily.com may be familiar with his recent article; The Father: A Family’s Weakest Link. Dr. Baskerville writes "Thanks to a recent court case in Massachusetts, issues of marriage and family now cover the front pages. But the family crisis is much larger than same-sex marriage or homosexuality."
In his first message as ACFC president (January 7, 2004), Dr. Baskerville writes "We stand at a critical point. Families today are under attack as never before. But this attack does not come primarily from pornography, television, rock music, drugs, or even homosexuality. The attack comes from government, and it targets the family's weakest and most vulnerable point: the father."
Liberals and conservatives need to be convinced that families are under attack, and understand who the aggressor is. Moreover, they need to understand what the problem really is, and begin focusing on objective evidence, analysis, and the consequences of family politics. To be blunt, many people need to start by recognizing that family is more important than partisan politics. Only then, I believe, can they begin the process of deprogramming that is necessary in order to look these issues in the eye and deal with them objectively.
Republicans blame "activist judges" for the redefinition of marriage. Perhaps the most astounding position I have read in a conservative discussion forum relates to the defense of this position. I have been told that government has always been involved in marriage and family. We should not be concerned that government, by acts of Congress and state legislatures, has become more involved in recent years. Only the courts, "activist judges," must be stopped from extending government involvement on their own.
I am astounded by the expression of this view in a conservative discussion forum because on its face it is obviously not a conservative view. I find it odd (but not particularly unusual) when Republicans support the ever-growing cancer of government intrusion into private life. I also find the argument weak and rather offensive. We might like to imagine that judges themselves are non-partisan, thus it would follow that political parties are not to blame for judicial activism. Although I believe that many judges do have strong party affiliations, and that in itself is a problem, that is not the worst of it. We apparently must also believe that judicial decisions are not effected by the laws written by Congress and state legislatures. Thus, enabling us to judge judicial activism as something entirely independent of legislative activism. Therefore, we should ignore the role of state legislators, congressmen, governors, and presidents in the destruction of marriage and family during the period when we are considering how to cast our votes. Pity the poor fool who falls for that one; the ultimate political dodge.
The argument has been put forth that the sudden finding of a constitutional requirement to recognize same-sex unions (regardless of what they are called) as equivalent to "marriage" did not in fact appear suddenly out of nowhere. There is a history of denial of marriage and family as fundamental institutions linked to fundamental rights. The road to the decision was paved with relatively recent federal reforms and billions and billions of dollars in federal funding. The problem has not been judicial activism so much as judicial inactivism; the refusal of the courts to overturn laws that are too intrusive and that have trampled family rights.
It has not been particularly surprising to me that some conservatives and liberals still do not understand that marriage as we knew it was effectively abolished before the Massachusetts decision. Unless someone has gone to a great personal effort to research and understand family law reforms over the past two decades, or regularly reads MensNewsDaily.com or information from another competent source, how would they know? Despite the fact that the fundamental social institution has undergone a complete legal transformation, so-called "mainstream media" has remained silent.
The recent intrusion of government into family life is not merely a matter of degree. If it was, reducing the rights of heterosexuals for the sake of expanding government control would not have led to the birth of new rights for homosexuals. The complete destruction of marriage and family (legally, as we knew it) was necessary before a constitutional right for same-sex marriage could rise as a phenix from the ashes.
For more than two centuries, family and the institution of marriage were "recognized by law" in the United States. There is a fundamental difference today, in that marriage and family issues are entirely "politically controlled." To be recognized by law is accepting of marriage and family as something created outside of government, so important that laws are needed to recognize it, but so established in the private domain that it must be respected and protected as involving fundamental rights. By the time the Massachusetts decision was made; "Simply put, the government creates civil marriage. ... In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. ... Civil marriage is created and regulated through exercise of the police power."
I know that I will get arguments regarding the factual nature of such statements in reference to "civil marriage." In the eyes of the Massachusetts court, "civil marriage" must be seen as distinct from marriage perceived in relation to tradition and religious preference. Some social conservatives in fact argue on religious grounds, with that being their only objection. Marriage and family have been recognized and respected by tradition and by religions throughout the world - because of what they are. It is an false and entirely ridiculous argument that because marriage and family are widely recognized and respected, outside of civil law and process, that similar recognition and respect within civil law is unconstitutional.
The real basis of the new constitutional right for same-sex marriage is that marriage and family now exist only as civil institutions, created and controlled by political processes, defined by arbitrary government services and arbitrary politically determined privileges and restrictions. Anything that may be connected to tradition or religious practice and belief has been abolished regardless of its fundamental meaning, importance to society, and the effect abolishment will have on parents and children. Marriage and family now means whatever politicians define them to mean and only what they define them to mean. The nature of marriage and family has been abolished. But it was not a sudden death. The Massachusetts decision was only a pronouncement that was finally so obvious that it could not be avoided in "mainstream" public discussion.
As bad as the situation is for marriage and family, the overall situation is worse. The transformation of marriage and family from established, legally recognized institutions to politically controlled services, privileges, and restrictions marks a fundamental change in the relationship between government and the people. It is not so much through judicial activism, but judicial inactivism that has allowed this to occur.
Courts have been more engaged in partisan politics (i.e. on the side of parties rather than in opposition) than in performing their duty to defend fundamental rights. As a result, marriage and family are no longer fundamentally protected, but have been reduced to mere creations of civil law controlled entirely and arbitrarily by political decisions. As such, (phenix from the fire) the equal protection clause has a broader and much more arbitrary reach. That is why the Massachusetts decision came now, when no such decision was given by any court for more than two centuries. Homosexuals have the same access to arbitrary, politically defined statutory rights and obligations as everyone else. It was congressional and legislative activism that led to the decision.
Roger F. Gay is a professional analyst, international correspondent and regular contributor to MensNewsDaily.com, as well as a contributing editor for Fathering Magazine.
Rightly so. How about government meddling in the secular institution of marriage?
I would say, historically, they served for one of two reasons:
1) To tie two families together and thereby increase the political or material assets of the families;
2) To establish a clear way for property to be passed down from generation to generation. Theoretically, all sons borne in wedlock were fathered by the husband.
Today, I think those two reasons don't really apply. Marriage serves as a form of social stability. Married couples are able to pool their various resources to improve their lives and the lives of their children.
The only way government won't meddle in the secular institution of marriage is if government is removed from the equation and marriage becomes essentially an issue of contract law. By its nature, when government gets involved in something, it'll meddle as much as it possibly can.
One quibble here- I think you mean matrilineal rather than matriarchal. Matrilineal inheritance of property is a logical system since it is always clear who the mother of a child is, but up until recently it wasn't always, ahem, certain who the father was. Of course, a matrilineal system only works if a woman was able to independently own property, which was generally not the case in a lot of Western history.
Not necesarily. I'm a real estate lawyer, and most real estate contracts stipulate that any disputes will be handled by a private arbitration organization- government courts never get involved. A lot of contracts are handled that way these days in many fields. However, your point is essentially correct- any private contract requires a mechanism whereby a third party can resolve contract disputes.
It is possible in this country for sectarian institutions to continue independently of the state administered institutions.
Do you mean that, for example, a secular divorce has no effect on the status of a marriage within the Jewish or Catholic faiths? There are rabbinical courts in Brooklyn where Orthodox Jews go to get their marriages dissolved under the requirements of their religion. Such a rabbinical ruling, however, in no way affects the validity of their secular marriage, and vice versa.
For this reason, I believe we are talking about at least two forms of marriage that are at core unrelated although superficially they appear similar.
If we are talking about the same thing, I agree completely. There is the secular institution of marriage and also the religious institution. However, either one can exist independently of the other.
If love is not on the list, I would question the list, not love. Jesus said, "No greater love has any man that this that He lay down his live for his friend". On that basis, I can look at any moral question and ask is it love? And in this case, diluting marraige is not love and definitely harmful to children.
If we can't come to an agreement of the need for the institution, it will die away and be abolished just as King Hamekameha abolished taboos once no one remembered the basis for the taboos.
I don't know this King Hamekameha, nor how he would abolish taboos from the human race by what you are saying here. Or how marraige, created by God could be abolished by mere man. What I worry about is the effects of this adulteration of marraige on our country, our children and our future.
"Vitures based ethics" is very valuable based on the person of the Lord Jesus Christ and His word. Because it allow you to stand on a rock and pull others to safety, while the rest goes into sinking sand.
Take the high ground my freind and not those of the moral reletivists.
Preserve mankind from evil and degeneracy.
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