Posted on 05/07/2012 8:47:37 AM PDT by Yashcheritsiy
The other day, I had the singular misfortune of seeing my first television advertisement against the marriage amendment that our state will be voting on this coming Tuesday. You may have seen it – it’s the one with the woman from New Bern telling the audience about her sister who was murdered by her live-in boyfriend, which she gives as her reason for opposing the amendment. Supposedly, according to this woman, the marriage amendment would “take away protections against domestic violence.” Of course, the claim is utter nonsense. Constitutionally defining one man-one woman marriage as the “only domestic legal union” would in no way impair the current protections against domestic violence that North Carolina law imparts. As the law currently stands, protection against domestic violence is already not dependent upon the existence of a “domestic legal union.” The law (NC General Statutes, Chapter 50B) covers all sorts of relationships, including men and women living together without the blessing of matrimony, and even people who are simply dating without living together. None of these are said to be “domestic legal unions” as this term is currently defined so the two concepts are not legally tied in any way, and therefore the passage of the marriage amendment would not affect this law in the slightest. People who say it will are either woefully ignorant or purposefully deceitful. No – if the marriage amendment passes, it will still be just as illegal to beat up or kill someone you’re living with as it is now.
Yet, the lack of truth content in this advertisement did not come as a surprise to me. My observation over the past several weeks has been that the anti-amendment position is largely based upon deceit, fueled by the knowledge on the part of the anti-amendment activists that most people will be too ignorant of the law to be able to recognize this deceit. In short, the anti-amendment position is driven by falsehood and based on ignorance.
You may be wondering how I could only now be seeing an anti-amendment ad for the first time. After all, from what I’ve heard, the anti-amendment forces – well-funded by out-of-state gay lobbyist groups and other radical Left interests – have been inundating the state with television and radio ads of roughly the same quality as the one I saw. Mercifully, our family’s choice to not get cable, or even a regular television hookup, has preserved us from the flood of disinformation (incidentally, I saw the ad on Youtube, when it ran before a video for which someone had sent me the link). However, I had seen elsewhere, including some posts by acquaintances on the social networking site Facebook, that opponents of the amendment – some surprising – have been repeating many of the same false claims and spurious arguments as the radical leftists have. I’d like to address some of these arguments here.
One argument that is made is that amending the North Carolina constitution in the way proposed would hinder the ability of homosexual couples to access domestic partnership benefits through private company employers. Of course, since these are coming through private companies, the government doesn’t have a hand in affirming or denying said benefits one way or the other. If a private corporation in North Carolina, for whatever reason, chose to extend to homosexual employees the same set of benefits as to heterosexual employees, the state will still not be involved in the matter. It’ll still be between the employee, the employer, and the third party benefit provider.
Of course, there are those who try to make the argument that the amendment “takes away equal protection before the law” from gays. It does not. In fact, both before and after the amendment passes, homosexuals will have the exact same marital rights as straights. Any gay man can marry a woman just the same as a straight man, and any lesbian can marry a man just the same as a straight woman. From the standpoint of the law, every individual is dealt with the same way. Whether or not this is any individual’s particular preference is irrelevant. There is no more reason not to uphold the current statutory definition of marriage as it applies to homosexuals than there is to not ban polygamy or “open marriage” (multiple “spouses” of both genders), even though these may be some peoples’ preferences.
Further, those who make this argument, and who even try to appeal to the 14th amendment of the federal Constitution for support, don’t understand that amendment. Again, amending the state constitution in this way applies to every citizen of North Carolina equally. No person in the state would be able to marry a member of the same sex as his or herself. Equal protection under the laws is not being abridged here. Again – personal preference is irrelevant. Some people might prefer to get their money by robbing a bank. Making bank robbery illegal – so that everybody has to find some other way to get money – does not indicate unequal protection before the law. The protection of the law does not, and should not, extend to personal preferences.
Further, as for the actual “equal protection” that was intended with the 14th amendment, which would be the rights affirmed and incorporated in the Bill of Rights, gays already have this equal protection. Homosexuals have the exact same freedom of speech, freedom of worship, right to keep and bear arms, right to a jury trial, freedom from unreasonable search and seizure, and all the rest that straights have. To claim that gays don’t have “equal rights” on the basis of a failure to grant them special statutory marital status on the basis of their personal preferences is simply ludicrous.
Then, there’s the argument that it would actually be illegal for North Carolina to amend its constitution to ban gay marriage because this will mean our state does not recognize gay “marriages” made in other states like Massachusetts or Maryland. This is thought to be a violation of the Full Faith and Credit Clause of the federal Constitution (Article IV, Sect. 1). Again, this is not so. The text of the clause says, “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” Opponents of the amendment usually misunderstand what this is talking about, thinking that it would extend to every possible act by any state government operating under any statutory law or regulation enacted by that state, and that every other state is required to enforce these acts. Therefore, by their thinking, gay marriages conjoined under the authority of another state’s law would have to be valid in North Carolina, so the proposed marriage amendment would actually be unconstitutionally opposed to the federal constitution.
Yet, as the federal courts all the way up to the Supreme Court have repeatedly held, the Full Faith and Credit Clause does not extend to conflicting statutory requirements existing between states. In the 1939 case Pacific Employers Insurance v. Industrial Accident, the Court stated,
“There are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.”
As late as 2003, the Supreme Court continued to uphold the distinction between statutory laws and the result of judicial proceedings (which are held to be generally enforceable across state lines by the Full Faith and Credit Clause), stating in Franchise Tax Board v. Hyatt,
“…our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.”
In other words, the federal courts have consistently held that while states must (for the most part) accept the judgments made in each others’ courts with respect to judicial settlements, the same does not hold true for conflicting statutory laws. Hence, while two gays may be able to marry under Maryland or New York law, North Carolina is NOT bound by the federal Constitution to recognize these unions. The reason for this interpretation of the Full Faith and Credit Clause is actually a very sound one based on proper constitutional understanding – if any single state could pass a law, and de facto have this law enforced in every other state in the union, that would turn the entire constitutional principle of federalism on its head. There would be no such thing as federalism. It would be worse than just having an all-powerful federal government enforcing its dictates onto the states. You would have fifty conflicting all-powerful states, each attempting to enforce their own statutes on all the others. After all, if North Carolina would have to accept Massachusetts’ legal recognition of gay marriage, why wouldn’t Massachusetts, concurrently, then have to accept North Carolina’s positive unrecognition of the same? Whose statute controls? It would simply be the exact type of mess that the 10th amendment was intended to prevent.
Even the attempt to appeal to marriage as a contract, and therefore supposing that one state must enforce contracts made in another state does not salvage the anti-amendment argument. The general legal principle is that a contract is void if it stipulates something illegal – courts will not enforce it. If gay marriage is illegal in one state, then it is unenforceable in that state, even if the contract was made in another state. In fact, the legal position is exactly the opposite of that supposed by the anti-amendment crowd.
Then, of course, you get the folks who try to draw a comparison between gay marriage today and the civil rights battles in the 1960s. This argument falls flat for the simple reason that a person’s race is not something they choose. One’s sexual orientation, on the other hand, is. Let’s dispense with all the nonsense about any “gay gene” or “gays are born that way.” No they aren’t. There is no gay gene. There is no scientific evidence to suggest that there is a genetic component to homosexuality (and given what we’re learning about epigenetics, it theoretically might not even matter if there were one found…). On this, science and Scripture are in accord. As such, attempting to claim that banning gay marriage is the same as banning interracial marriage is spurious. Race is inborn, and therefore is natural. People of different races can produce offspring via the natural, time-honored means. Gays cannot, because their lifestyle choice is unnatural. Of course, some might rebut this by asking how gays could choose their lifestyle, given that there are so many detriments to it (bullying, increased risk of suicide, disease, etc.). Well, drunkards and drug abusers choose their lifestyle, even though it is destructive and detrimental to them. Nobody has ever said that lifestyle choices have to be rational or beneficial to the one making them.
There are also those who attempt to do an end-run around the issue by claiming simply that government shouldn’t be in the marriage business at all. This pseudo-libertarian argument is one that superficial sounds good on paper, but doesn’t make any sense. One of the legitimate purposes of government is to maintain order and stability in society. Traditional one-man, one-woman marriage is one of the most socially stabilizing forces ever known, and it has been so across all of history, in diverse civilizations spanning the entire globe. Whenever this pattern is subverted by some other scheme, the result is inevitable decay, instability, and a lack of progress. For instance, polygamy has been observed sociologically to destabilize family units because of the discord created by competition between the “first wife” and the subordinate “secondary” wives, discord which extends to the children had by these various wives (see e.g. R. Clignet, Many Wives, Many Powers, p. 35). This familial instability is transmitted to the larger society as a whole. And of course, the breakdown of the nuclear family in America’s inner cities is a widely observable phenomenon that has had a tremendous negative impact on our nation.
The reason one-man, one-woman marriage plays this stabilizing role is because of the fact that the father-mother family unit is the optimal unit for raising and socializing children, one in which the strengths of both genders as they apply to children of either gender are inculcated into children, training them and preparing them for full participation in adult society as contributing members. Obviously not every family is perfect, and there are many traditional nuclear families where the parents do not take their roles seriously and where the children do not turn out right. Nevertheless, this does not change the fact that the traditional father-mother nuclear family is the best vehicle for providing children the balanced training they will need. The breakdown of the family in our inner cities has led to skyrocketing crime, violence, and disorder, as anybody with eyes and a brain can see and understand. Even in male-female relationships that attempt to mimic the traditional family but without all the formalities, the socialization of the children just isn’t the same – “Mom’s boyfriend” just doesn’t have the same investment and authority that “Dad” has. Hence, even if marriage is extended to gays, two men or two women trying to raise a child are still providing a suboptimal and even detrimental environment for those children. Really, two gay men living together with a child are just that – two gay men living together with a child.
And while it is true that bearing and raising children is not the only point to marriage – after all, there are people who marry when they are past the age at which they can have children, there are couples who prove to be infertile, and so forth – it nevertheless remains true that as an institution, preparing the next generation for adulthood and social responsibilities is one of the primary and most important functions of the matrimonial union.
Hence, government has a legitimate interest in the marriage business, just as government has an interest in other socially-stabilizing areas such as enforcing legal contracts and executing criminal law. It is no more “illegitimate” for government to maintain the boundaries of traditional marriage than it is for government to intervene to stop people from defrauding or killing each other.
This brings me to the final argument they make, which is that since North Carolina law already bans gay marriage at a statutory level, there is simply no need to have a constitutional amendment on top of this. I think there is some underlying strategy to this argument. It is well-known that all it takes is one activist leftist judge to overturn a statute on the books. In other states, supporters of gay marriage have argued that constitutional amendments were not needed because of statutory laws on the books – knowing that sooner or later, activist judges would overturn those statutes and impose gay marriage by judicial fiat (as happened, for instance, in Iowa a few years ago). That is why we need this amendment – to protect already-existing state law from the caprice of a future left-wing judge or judges looking to make a name for him or herself on this hot-button issue. Simply put, an amendment affords a level of legal protection to the definition of marriage that a statute cannot, on an issue which is especially susceptible to activist judicial intervention.
In conclusion, while the anti-amendment forces have expended a great deal of time, money, and effort to convince the people of North Carolina that the marriage amendment is detrimental, that it “hurts children,” that it allows churches to stone gays or burn them at the stake, and allows boyfriends to legally behead their live-in girlfriends for burning the biscuits, the fact remains that the arguments advanced by them against the amendment are simply not credible, from either legal, moral, or factual standpoints. My hope and prayer is that the people of this state will not be swayed by the propaganda tidal wave flooding the airwaves, and will make the right choice – to pass this amendment – on May 8th.
The author has picked up this erroneous and pernicious phrasing from the Democrat Propaganda Ministry. We all have to be careful, all the time, or we'll submit to the elimination of our natural rights without even noticing.
bttt
The author has picked up this erroneous and pernicious phrasing from the Democrat Propaganda Ministry. We all have to be careful, all the time, or we'll submit to the elimination of our natural rights without even noticing.
This is nmot true if one makes the necessary distiction between orientation and behavior. The origin of a sexual orientation disorder (same-sex attraction) is not clear, and this disordered appetite or tendency of itself may be involuntary. It constitutes a temptation. Temptation is neither a crime nor a sin.
What IS within voluntary control, is behavior. A person-- man or woman, "gay" or "straight" -- who sincerely says "I cannot conrol my sexual behavior" is a person who ought not to be allowed out in public without supervision.
Excellent points.
I think we could say, though, that a person’s sexual desires are to some extent a matter of choice. A man or woman can choose to pursue, or to avoid, material that excites sexual desires. People can choose to indulge, or to discourage, sexual fantasies or sensual indulgence.
As I tell my teen drivers, we are responsible, at least to some extent, for much more of what “happens to us” than we like to recognize, because recognizing our contribution to the outcomes we experience often requires us to exercise more control and restraint.
Disagree.
I understand the argument that attempts to draw a distinction between “freedom of religion” and “freedom of worship,” but find it to be a rather pointless one.
One’s worship is dictated by one’s doctrine. Therefore, to affirm “freedom of worship” is to affirm freedom of religion, since both doctrine and worship are necessary components of religion.
Arguing for a distinction between the two appears to be one of those areas where certain conservatives try to get onto a high horse and thump their chests about how they’re just a little more knowledgeable than everyone else, since make an esoteric distinction that others don’t. I guess Patrick Henry was just kind of a dummy and didn’t understand the distinction,
“It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the Gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”
Jefferson readily acknowledged with the Virginia religious freedom bill that it affirmed “freedom for the Jew and the Gentile, the Christian and the Mohammedan, the Hindu and infidel of every denomination.”
Clearly, the Founders didn’t draw the semantic distinction you’re trying to draw.
I see your point. However, the Founders were not facing the situation we are facing today, in which a dictatorial government is attempting to make what might seem a semantic distinction into a legal one.
Consider the example of Saudi Arabia or Kuwait, in which (foreign) Christians can hold a church service, as long as it's unnoticeable by Moslems, but can do practically nothing else toward openly practicing Christian faith. Do they have "freedom of worship"? And if they do, is that the same as the "free exercise of religion" that our Constitution recognizes?
I've never considered it in this light, but this line of thinking makes perfect sense. The sodomites just begin and run with the erroneous assumption that their perverted position trumps all other considerations. If "full faith and credit" is so all encompassing and absolute, I say let Texas' Constitution invalidate every same-sex "marriage" in Marxistchusetts.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.