Marriage and the Constitution: Why We Need an Amendment

Meridian Magazine ^ | 22 March 2004 | Richard G. Wilkins (Professor of Law, Brigham Young University)

[45Auto]

What good would it do to amend a document that the courts and legislatures alike ignore?

[jwalsh07]

Barr is wrong. While Bob has his good points, deep thinking is not one of them.

Marriage is a national issue. If, like me, one supports marriage as an institution between a man and a woman, then I, albeit reluctantly and after much thought, am forced to support and campaign for the FMA.

SCOTUS will not allow married homosexuals in Massachusetts to be treated differently than civil union homosexuals in Georgia where federal largesse or duties are concerned. Nor should they if they are faithful to the Constitution as written. It is quite clear.

Equal protection under the law.

[jwalsh07]

What good would it do to amend a document that the courts and legislatures alike ignore?

They do not ignore the plain language, they see language that doesn't exist. It's a penumbra thing.

Ignoring plain language is grounds for impeachment, waxing poetically about "transcendent liberty" is not.

[BikerNYC]

Equal protection under the law.

Indeed.

Marriage is also supposed to be "till death do we part," but I don't see all us straight people calling for the end of divorce. Indeed, the Catholic Church does not recognize civil divorce and prohibits those who are divorced from marrying in their churches. Why shouldn't we adopt that position?

I find it incredibly hypocritical to focus on the FMA, when marriage is crumbling (if, in fact, it is) not because of gay marriages, but because of divorce and people like Britney Spears walking down the isle at the drop of a pin. She single-handedly did more damage to the institution of marriage then all of the gay people who have been married to date.

Marriage is an institution that is entered into and existed from at will. To claim that such an institution needs federal protection is preposterous, since the requirements to enter into it are just about nil.

The author of DOMA, Mr. Barr, has been married three times. The President who signed DOMA into law...well...we all know what kind of poster boy for the sanctity of marriage he is. The moral of this story is...

Those who live in glass houses whould not throw stones.

[jwalsh07]

I don't find your argument a persuasive one. The same folks who opposed liberalization of divorce law also oppose homosexual marriage. We are consistent.

We now know that no fault was bad public policy resulting in more government to substitute for one of the parents. Redefining marriage is again bad public policy and the evidence in Scandanavia suggests rather strongly a further erosion of the institution of marriage and rising levels of out of wedlock births resulting in even more government.

So justifying more bad public policy based on bad public policy is not a persuasive argument nor does it say anything about the institution of marriage. It says much about bad public policy.

[BikerNYC]

But I don't see you or the people who think like you calling for the abolition of divorce, or even calling to make it harder to obtain by even the smallest amount.

You call no fault divorce bad policy, but seek to do nothing about it. That paints the picture of someone who really doesn't care about the true causes of a problem, but is only looking for a sound-bite solution.

Proposals to consider:

Marriage may not be entered into until 6 months (I can be convinced it should be 9 or 12 months) following the obtaining of a license. (Britney Spears, you are out of here.)

Divorce will not be permitted except after a waiting period of 18 months.

A person may not get married again until 5 years after a previous divorce is finalized.

When these kind of proposals are considered, I will then do more than laugh at those calling for a FMA to prohibit the marriage of a very tiny percentage of the population.

[jwalsh07]

When these kind of proposals are considered, I will then do more than laugh at those calling for a FMA to prohibit the marriage of a very tiny percentage of the population.

Again, your argument is simply that bad public policy justifies bad public policy. It is not an argument for redefining the word marriage.

You also mistake defeat for acquiesence. We lost the battle on no fault (bigger government won), the culture war continues.

As for your suggestions, sounds like a plan to me.

And as for your laughs, it is the same attitude I encountered many years ago when arguing that Roe and Doe would be a license to kill. That battle continues as well.

[BikerNYC]

Marriage has been redefined innumerable times over the centuries, as has almost every other social institution.

Religious institutions can keep whatever definition of marriage they would like. They need perform no marriage which they find to be against their policies.

[jwalsh07]

Forget religion. I'm religious but I don't argue from that view point because it doesn't persuade the non-religious.

I am arguing from the view point of limited government.

I'd be happy to argue objective truth and morality if you'd like.

Marriage for all 228 years of this Republic has been defined as a man and a woman. Utah was not allowed into the union until they banned polygamy. In other words, the history of the law in the US is that one man, one woman equals marriage.

If you want to change that definition then you must present at a minimum, a preponerance of the evidence suggesting it enahnces the Republic and the institution of marriage.

[backtothestreets]

"They want moral equality and nothing less."

In a word... BULL!

This IS about homosexual couples receiving the same benefits MARRIED heterosexual couples receive.  If it were otherwise, this would have been an issue when the "marriage tax" penalty was still in force.

Get the government, at all levels OUT OF MARRIAGE.

 

 

[backtothestreets]

"government should get 100% OUT of the marriage business."

Right!  Government at all levels has no business interfering with, or manipulating marriage.  Had the government not initiated social security, and other benefits based on marital status some 70 years ago, this issue never gets hatched.

This is the best example of government programs spurring bad ramifications I have ever seen in my life.  It was born of socialist ideology, and worms its way into mainstream society.

[GrandEagle]

7. My reply to your post 19 is my post 23. LOL!
LOL! I guess that's what happened when I follow-up too quickly!
Anyway, your points are very sound and I can see your point of view. I am still more scared of giving the SCOTUS a legal point to go after by mentioning marriage in the Constitution. I would like it better if the Congress simply removed the SCOTUS and federal courts jurisdiction on any issue regarding marriage.
If the folks in say, California wanted to sanction homosexual "marriages", then they have that power. Just don't bend over when there.

The most persuasive point you made was about the redefinition of marriage completely reshaping our society. In that context I suppose that a carefully worded amendment would be in order.
I suppose I'm about 55% to 45% in favor of my point of view.

[Travis McGee]

bttt

[Ancesthntr]

The level of compliance will be interesting; states like California have a complete database of pistol sales since 1989; in addition, there are around 30,000 registered "assault weapons" in another database.

The level of compliance will be extremely low, even in states with databases (not to mention places like Texas, with no databases, upwards of 30 million guns and utter hostility to the very concept of gun control). Just look north of the border - you have at least 50% non-compliance with the Canadian gun law, with even a couple of provincial governments publicly telling their feds to shove it where the sun don't shine (well, they phrased it somewhat differently, but you get the idea). This from Canadians! It gives one hope for this country.

BTW, 30,000 "assault rifles" is an absurdly low number for a state with 30 million people. I'd say that it represents less than 10% compliance. Way to go, California!

It would be expensive to pay enough people (even local law enforcement) to go around and collect all these arms.

I don't know about you, but I think that I'd quit my job if someone told me that I had to go to someone's house to take away their guns. That's not just for ideological/moral reasons, but the most practical one of all - I wouldn't want to make my wife a widow or my kids orphans. Besides, how many of the police own firearms themselves? How many of their non-police relatives do? I just don't see the average cop going to seize guns from his brother, father, father-in-law, etc.

Its a good bet that the 4th and 5th Amendments would have to be suspended for such an event to take place.

Oh, you mean officially suspended, unlike now when they are merely used as toilet paper.

That would put the likes of the anti-gun ACLU in a difficult postion - one full of irony.

I would venture to say that lots of ACLU folks would end up more full of lead than irony, due to the utter failure of those lying sacks of shiite to defend the ENTIRE BOR, rather than merely those parts that are politically correct at a particular moment in time. That's no threat, merely an opinion.

[Ancesthntr]

I couldn't agree with you more that our system is badly broken, and especially that judges and justices who rely on foreign law to make decisions should be impeached forthwith. However, I don't like the idea of a mere law being passed to deal with this. Laws can be changed too easily, and I greatly fear setting a precedent of letting the Congress tinker so easily with the judiciary. I prefer an Amendment, so that the people of the entire country fire a shot across the judiciary's bow.

We are coming to a breakpoint in our society. Listening to talk radio and surfing the Internet, I get the impression that many people are getting VERY sick and tired of the rulings that are entirely out of synch with our traditions, current law and the current public mood, rulings which are aimed at nothing less than the destruction of our country as we know it.

The decision on the Pledge of Allegiance case that will be heard today should be interesting. If the ruling goes against the Pledge as it is, this will KILL the Dems' chances in November - the courts will finally be revealed to be out of control for even the dullest knives in the drawer, and they'll be motivated to vote for people who will allow strict constructionists to be appointed and confirmed.

[GrandEagle]

and I greatly fear setting a precedent of letting the Congress tinker so easily with the judiciary.
This would by no means the first time that the Congress would be removing the judiciaries jurisdiction. I suppose our view differers in that I consider it the Congresses job to keep the judicial branch in line, as I believe the founders intended. The Judicial branch is appointed not elected, and as such was intended to be the weakest of the three branches. I would not consider it "tinkering" to carry out provisions that are clearly within their Constitutional authorization.

If the congress removes jurisdiction from the federal courts, it does not mean that we are without remedy. It simply means that the states would be the highest area of legal recourse.
I feel much more comfortable relying on the individual states to determine such issues than introducing any mention of marriage in the Constitution.
A point of historical reference would be the Danbury (sp) Baptist associations objections to the 1st amendments mention of religion in the Constitution. They objected not because of what the intent of the amendment was, but what the future ramifications would be of even mentioning religion in the constitution. They feared that one day we would end up just like we did, with the SCOTUS meddling in matters of religion.

I believed that if we had an educated electoriate who would think for themselves instead of picking one of the two flocks to follow (Dem. Repub.), we could begin requiring the Congress to do its job. That I believe would be a "shot across the bow" that would be much more effective to control the judiciary than having to address them issue by issue.

As I said in another post, I'm not 100% opposed to the amendment, I just don't think it is the best way to fix the problem.
If we do pass an amendment (I don't think it would ever pass), we will be simply addressing a symptom instead of fixing the problem. (in my opinion)