Amendment to ban same-sex marriage is morally sensible

Contrary to The World- Herald's Aug. 3 editorial ("Much ado about little"), there is a need for a federal constitutional amendment limiting marriage to one man and one woman. A constitutional amendment, and not just a statute, is necessary as a pre-emptive defense of a fundamental societal value because of the Supreme Court's recent decision in Lawrence vs. Texas.

As a first principle, the purpose of marriage must be ascertained. Maggie Gallagher, editor of MarriageDebate.com, has written, "Marriage is the fundamental, cross-cultural institution for bridging the male-female divide so that children have loving, committed mothers and fathers. The marriage idea is that children need mothers and fathers, that societies need babies, and that adults have an obligation to shape their sexual behavior so as to give their children stable families in which to grow up."

The late Sen. Daniel Moynihan accurately predicted back in 1965 the high cost to society of broken families. School performance, drug use and crime are all statistically correlated to family structure.

Marriage is more than a commitment of two people to a loving relationship. In many cases children are involved, and that fact raises the stakes considerably.

That might seem self-evident to most lay people, but it wasn't to the Supreme Court of Vermont in its decision ordering the creation of domestic partnerships.

In what can only be described as an embarrassment to legal reasoning and an affront to the rule of law, Vermont's highest court dismissed out-of-hand the idea that marriage served an important societal purpose.

Vermont's constitution has a provision known as the common benefits clause, used in the past to declare unconstitutional fence-repair statutes and laws mandating that businesses be closed on Sunday. Citing that same constitutional language, the justices spun out of whole cloth a new legal right to same-sex domestic partnerships. In other words, they just made it up.

The Vatican has recently stepped into the fray, noting: "Society owes its continued survival to the family, founded on marriage. The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children."

With gay marriage, Pandora's box would be opened, with only negative consequences for children and society at large.

The proponents of gay marriage - quite cleverly, I might add - attack the Vatican as defining marriage as a religious matter and, in this country, church and state are separated. Ellen Birch of the Human Rights Campaign, a leading homosexual group, has argued that Americans "decouple" - her words, not mine - marriage from religion and think of it only as a governmental license.

One commentator has stated that this view of marriage is turning "marriage into the moral equivalent of a Social Security benefit." And that reasoning was exactly relied upon by the Vermont Supreme Court and is frequently cited by groups advocating gay marriage.

Justice Antonin Scalia's dissent in Lawrence highlights the problem. If the state can't regulate sexual conduct on the basis of preserving the family, then "laws limiting marriage to opposite-sex couples" are on "shaky grounds." If the state has no legitimate state interest in proscribing certain sexual conduct, then likewise the state has no authority to prohibit the marriage of same-sex couples.

Courts, as Justice Scalia noted, carry things out to their logical conclusion. What, then, logically follows after same-sex marriage? Polygamy and what is known as "polyamory," or group marriage. Google the word "polyamory" and you'll be shocked at what shows up.

When Tom Green was tried in Utah in 2001 for violating that state's polygamy laws, the ACLU and other liberals came to his defense. The legal analogy from same-sex marriage to plural marriage is direct. As the ACLU director in Utah has said, "Talking to Utah's polygamists is like talking to gays and lesbians who really want the right to live their lives."

Polygamy, of course, is a bad idea because the premise of marriage is monogamy. Scholar Stanley Kurtz has written, "The idea of fidelity may be breached in practice, yet adultery is clearly understood as a transgression against marriage. Legal polygamy would jeopardize that understanding."

The history of liberalism in America has been incrementalism. The path is usually first adoption of an idea by cultural elites. The next step is judicial fiat declaring democratically passed laws unconstitutional; that's what happened in Vermont and Canada. Same with the United States Supreme Court in the Texas homosexuality case. We have then moved from democracy to judgeocracy.

I recall a discussion in Professor Richard Shugrue's constitutional law class at Creighton University about whether the Supreme Court could declare a constitutional amendment itself unconstitutional. While state and federal statutes (like the Texas law in Lawrence) are declared unconstitutional all the time, a constitutional amendment is another animal.

The Constitution has a higher status than a mere statute, and unless the Supreme Court completely abandons the rule of law it is not likely to declare any marriage-defining amendment unconstitutional based upon five justices' idea of what constitutes "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

Here's the text of the response from the proponents of same-sex marriage. My comments in brackets.

Midlands Voices: It's not fair to deny legal benefits to gays

BY MJ MCBRIDE

The writer, of Omaha, is president of Citizens For Equal Protection, a nonprofit organization advocating equity for Nebraska's gay, lesbian, bisexual and transgender families. She writes here in behalf of the organization's board of dirctors.

A leading conservative, former U.S. Rep. Bob Barr of Georgia, argued in The Washington Post on Thursday that "The Defense of Marriage Act goes as far as necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive."

[I read Barr's op-ed and this just confirms my already low opinion of him. The point former Congressman is that after Lawrence the Supreme Court could hold your federal statute as unconstitutional. That's why a constitutional amendment and not just a statute is necessary.]

In contrast, Omaha attorney Ed Begley, writing on this page last Sunday, came down on the wrong side of two issues. One is how we use the Constitution. The other is how a civil society recognizes, supports and protects its families.

[Wrong first name. Glad you read it so closely MJ!]

The issue of how to use the Constitution is the easier of the two:

• We already have the federal DOMA and various state DOMAs, as is the case here in Nebraska. [That's right. Your side lost the election and now you're suing in federal court to "overturn the election results."]

• Many conservatives believe that endless amendments to the federal Constitution undermine states' rights. [The matter has now been federalized with the Lawrence decision. Unless we want a crazy-quilt of marriage laws (gay marriage in MA and VT; polygamy in UT) we need one federal constitutional standard. One uniform rule is why, in some respects, the Supreme Court federalized abortion law.]

• As we are seeing in Nebraska, constitutional amendments pushed by narrow interests are subject to long and expensive legal challenge. [Well then drop your lawsuit. You're paying the bill and will lose anyway.]

As Begley stated, the Constitution does have status higher than mere statute. Therefore, it must be cared for more judiciously.

Begley's fear of the slippery slope from the recognition of same-sex relationships to legalizing polygamy and polyamory is used to scare people and demonize gays and lesbians.

The movement for recognition of gay and lesbian relationships has nothing to do with middle-aged men in Utah marrying multiple 15-year-olds. The slippery slope of which we should be more afraid is the scope of government intrusion into our private lives. If preserving the protections of privacy concerning the intimate conduct of consenting adults is wrong, as Begley and Justice Antonin Scalia believe, what's next? China-like rules limiting the number of children born to a single family? Creation of a "state" religion?

[She accuses me of using the slippery slope argument and then she uses it herself to the point of absurdity. Not at all likely to have either a state religion or laws limiting the number of children. But as Kurtz wrote the bottom of the slippery slope is visible now with the Lawrence decision. As Justice Scalia wrote, the logicial extension of Lawrence is same-sex marriage. If the State has no compelling interest in limiting marriage to one man and one woman then all combinations are open for legality. As for myself, sure there is a right to private sexual relations and I never wrote otherwise. The essay was about same-sex marriage.]

The second issue - how a society defines and takes care of its families - is arguably more complex. Begley envisions a Constitution that would prioritize and elevate heterosexual families, in his mind stabilizing the wider society. He claimed that the "first principle" of marriage is creating a stable environment for children.

Even if we all believe that a constitutional change is the proper vehicle by which to accomplish these goals (which even many conservatives do not believe), Begley's arguments were based on illogical reasoning and faulty assumptions.

Same-sex relationships do not preclude procreation and the raising of children. Some of Begley's own arguments made a powerful case for creating a strong family structure - gay or straight.

Begley used Sen. Daniel Moynihan's controversial 1965 report on the black family to assert that broken families are a bad thing. No reasonable person would disagree. This is precisely what gay families are saying: that we should have legal responsibilities and bonds, just as heterosexual families do, so that we can take care of each other and our children.

[But the children of your "unions" are only obtained by paying money for artificial insemination or adoption.]

Moynihan's report (which many thought erroneously blamed black women for drug use and crime in black communities) also made the argument that economic stability is what all families need.

A family with committed, loving parents helps prevent the problems of low school performance, drug use and crime, which Begley identified as a cost of broken families. The problem emerges when his definition of family is so narrow as to exclude all others that do not exactly mirror his own.

Regardless of how a family looks, it deserves the same recognition and support now accorded to families of which Begley approves. To deny such to same-sex couples is inhumane. Other than blatant bigotry, there is no moral or logical reason to deny gay and lesbian couples the rights and responsibilities of marriage that straight couples enjoy.

Begley quoted a commentator who said this view of marriage is turning "marriage into the moral equivalent of a Social Security benefit." He's right. It is about the money. It's about health insurance, inheritance taxes, Social Security benefits, wrongful death suits, disability insurance, divorce protections and on and on.

[Glad we know now it is all about the money. And to correct the incorrect statement about wrongful death suits, any gay could bequeath by will the chose in action for any wrongful death lawsuit to one's gay partner .]

This is also about protecting our children and making sure they have two legally responsible parents and the same protections under our Social Security system. Begley criticized us for fighting for all the economic privileges heterosexuals take for granted. And he would deny us all the family responsibilities he so trivializes by dismissing them as Social Security benefits.

Mohandas Gandhi stated, "There is no god greater than truth." Begley and others refuse to face the truth and the existence of same-sex relationships. Those human feelings and connections are not limited to heterosexuality. As we each make our way in this world, we desire and cling to the love of our families and those around us.

[Gays can live together and acquire children but calling it marriage and a family is not correct and presents a real downside to society.]

Those definitions of love and family are much higher and more sacred than the words Begley would choose to place in our Constitution.

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.