Posted on 07/18/2004 5:57:50 AM PDT by RogerFGay
Same-Sex Marriage Positions Untenable
July 15, 2004
by Roger F. Gay
The debate over a constitutional amendment that would limit marriage to opposite-sex couples is shaping up as expected. Such an amendment is supported by Republicans and President Bush. John Kerry and John Edwards favor civil unions for same-sex couples but insist that marriage and family issues should be left to the states.
The Kerry-Edwards position suffers an obvious flaw. With state courts, such as the supreme court of Massachusetts, finding prohibitions against same-sex marriage unconstitutional, state legislatures are left without the power to limit who can get married to who. Congress, which is additionally handicapped by lacking constitutional authority to regulate marriage and family issues, is also not in a tenable position to overturn constitutional rulings by legislating marriage restrictions. This was the problem that led to calls for a constitutional amendment to begin with.
The flaw in the Republican proposal is a bit more complicated. A quarter century ago it would have been understood that marriage and family law are state issues and that even the states' role in regulating and manipulating marriage and family was a limited one. Marriage and family issues were more importantly legally classified as private issues that are so fundamentally important to individuals and society that they deserved protection from government intrusion.
Over the past two decades, Congress has carved out an ever more intrusive federal role that changed the relationship between individuals, their families, and the government. Federal family law reforms, beginning with child support, are now backed with more than $10 billion per year in federal funding. Constitutionally, states are not obligated to comply, but the federal government enforces the reforms by withholding funds from states that do not cooperate.
By the time the Massachusetts decision was handed down, marriage and family had already been redefined as "social policy," a classification reserved for entitlements in government programs that are not subject to normal individual rights claims. This reclassification was essential to the continuation of federal involvement, and therefore the funding that was included. Because the classification eliminates enforcement of individual rights, it blocked the efforts of parents to defend themselves in court against arbitrary government intrusion and manipulation of family related issues. Thus, in concrete effect, they were unable to defend against the substantive redefinition of marriage.
In issues of social policy, individual rights analysis is not generally applied. Courts may however instate constitutional rights where the people bringing the constitutional challenge are regarded as belonging to a suspect class. Because of the resulting differences in rights assigned to groups, this type of ruling sometimes leads to what is known as "reverse discrimination."
Like a house of cards; the Massachusetts decision relied on the position that marriage is merely a policy defined by government. In that context, it saw the limitation to opposite-sex couples as an arbitrary political choice, discriminating against same-sex couples that it characterized as otherwise equal in nature and possibly better as parents. As difficult as it is for many people to swallow this position today, it would have been impossible for a court to make such a decision just a decade or two ago. Aside from the fundamental legal change described above, the interim period has seen massive propaganda attacks against fathers and traditional families – designed to promote federal family reform – that built confidence in the acceptability of arbitrary manipulation of family policy.
Federal courts, and the United States Supreme Court in particular, have been reluctant to overturn state court rulings in domestic relations issues because constitutionally they are states' issues. They refused to hear a key case attempting to preserve family rights shortly before the Massachusetts same-sex ruling appeared.
States on the other hand are complying with federal statutes and regulations in order to secure funding. So we have an odd situation where the branches of government are not in sync. Congress has freely manipulated marriage and family but the federal judicial branch has not provided the necessary defense against arbitrary government intrusion.
A constitutional amendment "defining marriage" as between a man and a woman would also formally redefine this one attribute of marriage as a federal issue, thus making clear a very limited role for oversight by federal courts. But it would not address the issues that created the current dilemma. Not protecting other vital aspects of marriage and family could easily lead to an even more confusing shell game over powers and the protection of rights, hit-and-miss instances of judicial activism, and a constantly changing status for families.
The uncertain political environment in which families must survive these days is appalling. Every time someone in a special interest group provides what seems to be a PC suggestion for more federal spending, the relationship between family and the government, and therefore the character of family and marriage changes again. The Republicans' promotion of marriage initiatives and other tamperings follow that pattern.
Had the federal government respected the constitution and limited its impact on family law, there would be no need for any constitutional amendment. Had the U.S. Supreme Court acted to keep the federal government within its constitutionally allowed areas of jurisdiction and defended family rights, we would not need a constitutional amendment. Now that we do need a constitutional amendment; one that defines who can get married is only a superficial treatment of what has become the most apparent symptom of federal manipulation of family law. The real solution to the problem lies at a more fundamental level.
We need a family rights amendment that would explicitly define family issues as private issues and would explicitly forbid Congress from interfering. This would eliminate the political manipulation of marriage and family by the federal government and at the same time establish the role of the U.S. Supreme Court in defending individual rights in relation to family issues. Such an act would restore the careful balance between government power and family rights that developed over many generations and strengthen the defense of marriage and family for future generations.
Roger F. Gay is a professional analyst, international correspondent and regular contributor to MensNewsDaily.com, as well as a contributing editor for Fathering Magazine.
ping
If we could end this blackmail, we could have state and local rights once again. With this blackmail however, everything is at the federal level. A city can't even build a *&^% sidewalk without haveing to comply with state regulations which have to comply with federal regulations.
Think a state or local hac will give up fed money?.
On the larger issue of gay marriage, however, I have to regretfully concede that free adults do, in my opinion, have the right to contract with each other. Whether that is called marriage or civil union is debatable but I cannot see any defense of a position that would deny free adults the right to contract with each other in such a manner as to duplicate the tenets and covenants of marriage. I don't like this much but consistency in terms of my views of individual rights, which I hold dear, makes it inescapable.
You missed my point, Vaduz. I'm saying the feds should not be allowed to withold money as a means to force the states and locals to comply with their desires. Currently, only the feds have realistic power and, as you alluded to, the states and locals can't afford to turn down the money.
Probably only the Supreme Court can change this and it probably means a reversal of a previous decision-so I'm not holding my breath.
The problem with gay "marriage" is that it's based on homosexuality, which is not normal.
One way to know that homosexuality is not normal is to consider what would happen if the only sex was homosexual sex-the entire human species would die out! No matter what you or anybody else says, it is not normal for a species to act in such a way.
Another way to know that homosexuality is not normal applies only to males. Ask yourself if you would advise two (or more) males to have sex without a condom. Is that safe? Not even close. You'd be totally irresponsible to advise that a man put his...into another man's... without some protection from dreaded diseases.
I will not pretend that homosexuality is normal. Societies get into deep do-do when they start pretending. The U.S. got into deep do-do when it pretended that Blacks are not people. The Germans liked to pretend that Jews were less than human. Most of the world is currently pretending when they pretend a preborn baby is not a human being.
Homosexuality is not normal and we don't need our laws to pretend otherwise.
"Whether that is called marriage or civil union is debatable but I cannot see any defense of a position that would deny free adults the right to contract with each other in such a manner as to duplicate the tenets and covenants of marriage."
No one is denied the ability to enter into contracts with each other for this purpose now. What same-sex 'marriage' proponents want is public approval of a lifestyle.
I see the situation as more of states willing to prostitute themselves for the federal money. When money is more important to you than princples, you are a whore.
What do you think the effects on this 'blackmailing' would be if just a couple of Governors publically said, "Sorry, but we aren't you whores" to Congress?
We must repeal section 5 of the 14th Amendmnent.
Same-Sex Marriage "Positions" Untenable! --- The "missionary" position?
I had to read headline twice, I thought it said "Same Sex Position Marriages Untenable" and was going to be a sex ed piece.
OMG, you beat me to it.
I don't care if it's normal or not. Organ Transplant isn't "normal" but people should be free to contract for donor organs if they choose. "Normal" doesn't describe most contracts and, quite honestly, I don't want the government desciding what is "Normal" nor do I think I should have that responsibility, nor, with respect, should you.
So, you will be happy to give them the right to marry so long as you can withhold public approval?
An organ transplant isn't law. Gay "marriage" law affects the entire society; it cracks the very foundation of civilization itself.
"So, you will be happy to give them the right to marry so long as you can withhold public approval?"
It's not an issue of 'giving' anyone a right. It's a matter of whether they have this right ( as defined by proponents of same-sex marriage) or not.
As far as public approval, ceremonies do exactly this, put the stamp of approval on an action or behavior. Government ceremonies imply government (and public) approval. However, this in and of itself is not sufficient to deny a right. What is sufficient is the fact that this 'right' (to same-sex marriage) never existed in the first place. If we are going to invent a new right, we have a procedure in the Constitution for doing this. That procedure does not involve the judiciary unilaterally making this decision.
Homosexuals do already have the right to 'marry'. Just not by a civil ceremony. Two people (of any sex) currently can have contracts drawn up to replicate most of the obligations and responsibilities of marriage. These contracts are recognized by government as are any other contracts. The only real *financial* issues are those involving government benefits base on married status.
Why is it better if gay people live together without benefit of marriage? Why not let free people contract with each other in the manner they choose? How much control do you think you deserve to have over other free people? Why do you care if people you don't know contract with each other as they choose?
Good post Roger!
Best Regards,
Nancy
If I'm not on your ping list, do add me. Thanks.
Because it would equate an abnormal situation with marriage, which is the foundation of civilization. It would give legal status to a perversion, much the way legal slavery did and I don't want to go there again. If gays are granted legal status they could hardly be barred from adopting children and we should do what we can to prevent children from being raised in harmful situations. We have enough problems with child abuse already; we don't need any more.
When gays engage in abnormal sexual activities and spread horrible diseases I shouldn't have to help pay for it, but I do. Pretending that it's normal and giving it legal status will surely make me pay even more, compounding the wrong. (Admittedly, there are numerous other things I have to pay for because of people trying for a Darwin award.)
Here's how I see things going down: Next April 15th gays from Massachusetts will file their federal income taxes and claim to be married. The feds will say they are not in the eyes of the federal government. The gays will file suit and the decision will come down to 1 person on the entire planet, Sandra Day O'Connor. Don't worry, you'll win since O'Connor is the champion of fuzzy think.
I guess we can just agree to disagree, muir_redwoods, and wait for O'Connor's decision. So long.
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