Posted on 07/14/2004 1:42:44 PM PDT by Tailgunner Joe
Yes: Greater good will result from preserving the sanctity of marriage as the union of one man and one woman.
Two U.S. Supreme Court rulings from the 1960s concerning sex and marriage announced results almost certainly favored at the time by a majority of Americans. In 1965, Griswold v. Connecticut held that government cannot restrict a married couple's access to contraceptives; in 1967, Loving v. Virginia concluded that government cannot withhold marriage from a man and a woman of different races. Central to both decisions was the fundamental importance of the husband/ wife relationship.
Almost 40 years later, the court in Lawrence v. Texas held on June 26 that government cannot criminalize noncommercial, private, homosexual acts between consenting adults (reversing the 1986 case of Bowers v. Hardwick) - a ruling that a majority of Americans may or may not favor.
The approach and language of Lawrence one day will lead to a Supreme Court result that a large majority of Americans strongly disfavor: same-sex marriage. We say "will," not "may," for two reasons. First, despite disclaimers from Justices Anthony M. Kennedy and Sandra Day O'Connor, the reasoning of Lawrence, especially in the light of the reasoning in Griswold and Loving, leads to such a result and nowhere else. Second, Roe v. Wade (the 1973 pro-abortion decision), Romer v. Evans (the 1996 case blocking resolution by democratic means of affirmative action for gays) and now Lawrence destroy all hope for a Supreme Court that can withstand the temptation to displace the views of the American people in answering these deeply felt issues.
Lawrence is just the latest evidence that same-sex marriage is coming to America - whether the people of America want it or not. Within days, the Massachusetts Supreme Judicial Court in Goodridge et al. v. The Department of Public Health will mandate same-sex marriage in the Bay State. The resulting Massachusetts same-sex marriages will not necessarily be limited in their effect and validity to that state.
According to the U.S. Constitution, all states are obligated to give full faith and credit to the "public Acts, Records and judicial Proceedings of every other State." That clause traditionally has been understood to apply to marriage law. (Many reading this essay were married in a state other than their present residence.) Massachusetts, therefore, may redefine marriage for America.
What the Supreme Court did in Lawrence, and what the Massachusetts court may be about to do in Goodridge, reveals an undeniable (and disturbing) reality of modern American democracy. Jurists often view themselves as particularly enlightened regarding our day's profound issues relating to marriage and sexual conduct - so much so that they do not hesitate to substitute their enlightenment for the people's judgment. As they do, the democratic prerogative - indeed, duty - of the American people to resolve moral and ethical issues is being abrogated in state after state, year after year. This sad reality of modern American democracy will continue unless and until there is a powerful sea change in present political/legal currents.
That change is the proposed Federal Marriage Amendment (FMA) to the U.S. Constitution. Declaring that "marriage in the United States shall consist only of the union of a man and a woman," the FMA is virtuous in two ways. First, its enactment and ratification will be a truly democratic act, the discharge of democratic responsibility, the fulfillment of the people's work. Neither the American people nor their elected representatives ever have enshrined same-sex marriage as a fundamental right. Nor have the great majority of Americans ever wavered in their judgment that marriage is wisely and properly limited to a union of a man and a woman, husband and wife. The FMA has the advantage of being the legitimate result of a legitimately democratic process.
The FMA also is substantively virtuous. The social, moral and political judgment of the great majority of Americans is right: Greater good will result from preserving marriage for the union of a man and a woman. Consider the following: Throughout the ages, marriage between man and woman has proved essential to individual development, social progress and communal prosperity [see, for example, Brigitte Berger's article, "The Social Roots of Prosperity and Liberty," in the journal Society (March 13, 1998)]. Indeed, as Berger has demonstrated, among influential institutions marriage between man and woman is unsurpassed in its impact on society. Natural marriage's central role in society's health - not just in American, but universally - has made natural marriage a "highly preferred" legal relationship. That preferred status is reflected in the numerous statutory and other legal preferences that have been created for the marital relationship, ranging from special tax and employment benefits to laws dealing with property ownership and intestacy to a whole host of other preferences and protections.
Contemporary American society can attest to the link between the health of natural marriages and the resulting nuclear families on one hand, and the health of society itself on the other hand. That experience has been demonstrated with divorce, particularly with the negative social consequences resulting from the 1970s divorce "reforms" that made divorce easier to achieve and vastly more common. The United States has paid an indisputably heavy price for the widespread "unmaking" of natural marriages and families. At the same time, contemporary American society also has witnessed positive evidence of the value of natural marriages and families, evidence ranging from the relatively high achievement of children from intact marriages in school and other worthwhile endeavors to their relatively low entanglement in the criminal-justice system.
Of equal or greater importance is the reality that natural marriage is essential to the very survival of society. The very conception of marriage indissolubly is linked to the societal imperatives of procreation and child-rearing. As the Supreme Court noted in the 1942 case Skinner v. Oklahoma, "Marriage and procreation are fundamental to the very existence and survival of the race."
Then there is the question of morality. Contrary to the vacuous assertion of occasional pundits, every government legislates on the basis of some notion of morality. It is impossible to excise all moral judgments from the lawmaking process, especially when lawmaking unavoidably involves issues as central to the human experience as love, sex, marriage, procreation and child-rearing.
Recognizing the difficulty of establishing an infallible ultimate arbiter of better and worse moral notions, Madisonian democracy leaves the moral decisions to the voice of the people, trusting that the judgments of the greater portion of the people will be better than those of the minority. In this process, the moral judgment of the common laborer is of equal dignity with the moral judgment of the university professor. (This last point merits particular notice, given the demonstrated divergence of the views of American judges and academics from those of the populace in general relating to the moral value of natural marriage, traditional families and same-sex marriage.) The moral judgment of the greater portion of the American people is that marriage is rightly left to a union of a man and a woman, husband and wife.
Judicially imposed same-sex marriage founders on all the points that support the virtue of natural marriage - and the virtue of the Federal Marriage Amendment. For example, although bearing the burden of proof, same-sex marriage advocates have brought forth no persuasive evidence that such an arrangement will contribute to, rather than subtract from, salutary individual development, social progress and communal prosperity.
Mere predictions of possible contributions well may be no more valid than the promises underlying the divorce "reforms" of 30 years ago (as well as the early 1970s promises, such as "abortion will not become routine," that were made to sustain the switch to abortion on demand). And to any charge that the burden of proof is unfair (given that societies for millennia have limited marriage to the union of a man and woman and thus precluded the needed database), the reply is simple: Perhaps the collective, indeed, universal wisdom of the ages ought not be discounted.
Because of humankind's profound interest in its own existence and perpetuation, because of its surpassing interest in channeling and promoting responsible procreative behavior, human societies throughout recorded history uniformly have preferred natural marriage. Same-sex marriage advocates fail to refute the basis for that preference: the imperative social interest in procreation. It is quite true that not all marital unions are fertile and that married couples may decide not to have children. But this reality does not support the claims of activist groups that heterosexual and homosexual unions are "equal" with "equal" social value. They are not.
Procreation requires a coupling between the two sexes. Sexual relations between a man and a woman, therefore, fundamentally differ from homosexual couplings. Homosexual couplings do not have the biological potential for reproduction: Children are possible only by means of legal intervention (e.g., adoption) or medical technology (e.g., artificial insemination). Bluntly put, society has a profound interest in its very future, which is provided by the bearing and rearing of children. Accordingly, society has a correlatively profound interest in promoting the single institution that for centuries has proved to be essential for the social, physical, mental and economic health of women, men and children: marriage between a man and a woman.
Finally, again, there is morality. To the repetitiously used argument that in a modern liberal democracy a portion of society should not impose its moral values on individuals of a different mind, the answer is this: Marriage in America will be unavoidably defined either by the morality of the majority or by the morality of the minority. Under our democratic ethos, the definition by the minority would be profoundly immoral.
Which brings us back to adoption now of the FMA. The amendment is this nation's only assurance that the same-sex-marriage issue will be debated and resolved democratically - with the values and the voice of the day laborer and the secretary carrying equal dignity with the values and the voice of the university professor and the unelected judge. That is how the issue should be resolved. That is how it must be resolved.
Didn't do much for GUN RIGHTS.....What makes them think it will do anything for marriage?.....
I really don't think another amendment would matter!
Why don't we pass a Constitutional Amendment that says that the government should be restrained by the existing Constitution??
Yeah...but at least political speech is safe, right?
Anyone who states that a constitutional amendment is not needed is just plain wrong or intentionally lying.
thanks for the article.
Are you kidding?......
Constantly...
No, just a spiritual revival. Everybody on FR and other conservative sites need to pray everyday, and ask God to pour out his Spirit on our country. It will change everything, and make the wicked repent, or flee the country. Anyone who thinks the solution begins with man, and not with God, is living the Democratic party lie, no matter what they call themselves.
I think it is necessary to amend the Constitution to limit and define the appellate powers of Article III courts.
It is a foolish waste of time to fight a five-year battle to ban so-called "marriages" between members of the same sex when the courts will just be right back with another outrage as soon as that amendment passes.
We should save our energy for a single, comprehensive amendment which would forbid the use of language in the preamble "blessings of Liberty", "general welfare" as the substantive basis for ruling State laws unconstitutional.
Once the term marriage can be defined by each state the homosexual community will have their foot in the door to securing every right and priviledge that is assigned to heterosexual couples. They will demand it and they will win in the courts. This will speed the moral decline of this nation and weaken us as a whole. BEWARE, pandora's box is being opened and there will be no closing it.
We could call it Amendment #10. I don't think that number is currently being used....
</sarcasm>
We should ax "penumbras" and "foriegn laws" while we are at it.....
Sad, isn't it? Some folks, even some conservatives, refuse to recognize the fact that the Federal government is one of enumerated powers.
Consider this example.
In FL homosexuals are prohibited from adopting children.
They have lost twice at the state SC and once at the federal level before the 11th with the USSC denying review.
The homosexuals are now left to try and get the all republican legislature to change the law. In fact the head of the family law section of the florida bar said she would be working for that. (florida attorneys can't make money from a homosexual partner's adoption of a natural offspring or hijack children from foster care based adoptions.)
A constitutional amendment will put the public policy and the legislative intent solidly discouraging homosexuality. Its absense now is to the advantage of the anti-family crowd because they can point to its absence.
The courts have failed because the ONLY source of lawyers for staffing the courts is leftist law schools with leftist law professors. All the gate keepers for judges are leftist based, ABA ATLA etc.
In short better to have an not need, than need and not have.
This is only true if we view it the context of there being nothing we can do about it.
However, the Founders wisely said , and I paraphrase here, that when the Government no longer represents the concerns and attitudes of the People, that a change in Government can be made. The DemocRats consistantly discount that, figuring that by the time we get fed up to that point, they will have snatched all our firearms and we would be left helpless.
Of course, the 'assault' weapons ban expires this September. I can't wait!
we don't need to pass an amendment to protect marriage. We need to pass an amendment to protect society from individual out of control judges legislating from the bench. We need a Constitutional amendment with the equivelant of the California ballot initiative provision. Any court ruling (or new law from some looney legislative trickery) on a controversial issue can be put to a vote in the next election if enough valid signatures are gathered. And the citzen's vote will be the final word on the topic.
We need to return power to the CITZENS and take it away from our would be masters. Now understand, this is dangerous. It means that the majority can be tyranical if the right demagog comes along. It's happened before. We will inevitably go too far in this type of movement. But that's the nature of the ebb and flow of events. If the pendulum only swings one way there is no movement. The mechanism merely freezes in place.
Amen, brother!
Article III needs to be amended to clarify that the words of the Federal Constitution cannot be used to draft laws in response to pleadings in an Article III court. The language of the Constitution is a restraint on Federal power, not a grant of power.
Allowing legislatures to review Court decisions is dangerous. I would settle for an Amendment that prohibited Federal appellate review of any State law pertaining to domestic relations and that also prohibited the use of the language in the Preamble as a basis for a substantive decision.
I was sort of hoping that Congressman Billybob, who knows something of these matters, would draft the amendment.
Marriage has managed to survive for many millennia. A few 21st gay activists are not going to hurt marriage.
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.