The Only Way

Recently, the government of Canada announced that it would not oppose court rulings that declared the nation's marriage law unconstitutional because it did not include "same-sex couples" and that it would actually change the law to reflect the legal rulings.

CitizenLink spoke with Dr. Robert George, a professor of jurisprudence and politics at Princeton University, Princeton, N.J., about the Canadian action. He spoke with CitizenLink Associate Editor Pete Winn.

Q. It appears homosexual marriage is going to become the law of the land for our neighbors in Canada. What is your reaction?

A. It means that Canada is abandoning the traditional understanding of marriage, embodied in the teachings of the Christian faith, and also the secular law that Canada inherited from Britain. That idea is that marriage is a "one-flesh" communion of spouses — of a man and a woman — that is naturally ordered to children. The partners find their marital fulfillment, in part, in a bodily union — which may or may not, on any particular occasion be fruitful, but which is an aspect of their comprehensive sharing of life. That includes not only the physical relationship, but also the emotional, rational, dispositional and even spiritual levels.

The biblical understanding of marriage has always been embodied in our law. The basis is biological. It's the physical union of spouses that consummates a marriage, that completes the union, that renders it permanent, and provides the foundation for all the rest.

That means that sexual acts that are by their very nature "non-marital" are not of the type that is reproductive by nature. Those acts cannot provide the biological basis of anything that we would call marriage. They are something else but they are not marital. The law has always recognized that. That's why non-marital acts have never been considered sufficient to consummate a marriage, even when they are between a man and a woman — a husband and wife.

Infertility has never been seen as an obstacle to genuine marriage being completed. But nonconsummation has always, to this day, been considered an obstacle to the completeness of a marriage.

Q. Basically, then, what you're saying is, if the relationship isn't connected with procreation in some way, then it's not marriage. We're talking about something else, then?

A. Right, it changes. That means the argument by homosexual activists that they are simply trying to expand the pool of people who can participate in marriage — that they are not actually changing the meaning of marriage — is entirely false. They are trying to change the basic meaning of marriage by detaching it completely from the biological union of spouses, which is procreative in type. They are making it a matter of sex, to be sure, but sex that is entirely detached from procreation — even as a possibility.

Q. What kind of legal fallout will we see stemming from Canada's action? For instance, if a Canadian same-sex couple came to the United States, would the U.S have to recognize the union as a marriage?

A. The answer to that question at the moment is no. Obviously, there would be various forms of awkwardness created by the situation, but under current U.S. law they would not be required to.

But you can certainly count on the following: that activists in the United States will attempt to persuade U.S. courts and American judges to apply international norms in order to force domestic jurisdictions — such as the states of Colorado, or New Jersey — to recognize "same-sex marriages."

It is altogether likely that they would be able to find some sympathetic judges who will push in this direction. The matter would go up on appeal to appeals courts, and possibly to the Supreme Court of the United States.

On this particular issue, at least for the foreseeable future, I do not see the homosexual movement being successful. By "this particular issue," I mean the attempt to appeal to international norms that would be enforced by U.S. courts to invalidate U.S. law.

Where I think there is a greater danger is in using U.S. courts to create "same-sex marriage" in places like Massachusetts and New Jersey, on the basis of state constitutional provisions — such as state equal-protection provisions. Then the next move would be to claim that under the United State Constitution, other states — owing "Full Faith and Credit" to the laws of New Jersey, or to contracts enacted in Massachusetts — would be required to recognize "same-sex marriages." So, I think the greater threat right now is not from Canada, but state supreme courts in liberal jurisdictions, such as Massachusetts and New Jersey.

Q. Surely, though, the Canadian decision has advanced the cause of the homosexual activist movement in the U.S., has it not?

A. About that, there is no question. I think it will strengthen the hands of the homosexual activist movement, and weaken the position of the opposition to some extent. How much? It's hard to say. But this was — from the point of view of homosexual activism — a great victory for them.

It is not simply, though, that the move towards same-sex marriage "could" happen here — it is already happening here.

Specifically, there are courts right now, deliberating with a view towards imposing "same-sex marriage" on the people of the United States, without democratic deliberations. Unelected and wholly unaccountable state judges, purporting to interpret state constitutional provisions, are poised to impose "same-sex marriage."

There is a case pending in Massachusetts — it's called the Goodridge case — which could be handed down almost any day, almost certainly will within weeks or months. My expectation is that the Massachusetts Supreme Judicial Court will create "same-sex marriage" or the equivalent of it in Massachusetts, and impose it on the people of that state, without the people's elected representatives deliberating on it for as much as five minutes. The same could happen in New Jersey, where a similar case is pending, and where, again, a very liberal state supreme court might pull the trigger and attempt to impose "same-sex marriage" on the state of New Jersey.

We know that in the state of Hawaii, the state Supreme Court there attempted to impose "same-sex marriage." There, however, the citizens of the state rose up to amend the state Constitution to undo the judicial activist decision. I would hope that the same thing would happen in Massachusetts and New Jersey, but it is up to us to make it happen.

We have to be active, we have to be motivated to go out and protect the institution of marriage against activist judges who have given every intention of imposing it.

Q. Haven't a number of states adopted Defense of Marriage Act, or DOMA, laws for this very possibility? Are they enough to stop the same-sex freight train?

A. It is a freight train; I think that is a very good analogy. It's coming right at us, as a people.

My own judgement, however, is that ultimately it will require an amendment to the Constitution of the United States to ensure that marriage is preserved as a union of one man and one woman. That is what it will take, I think, to come against the same-sex challenge, and against what will come immediately after it - which is the challenge of polygamy.

I don't think it makes sense to continue to fight these issues on a state by state basis. There are some aspects that will have to be managed on a state level, but the basic principle that marriage is between one man and one woman is something, I think, we need to resolve as a national matter. The only way to do that is through a federal amendment.

I, myself, am supporting the Federal Marriage Amendment (FMA), which would define marriage in the United States as between one man and one woman and would also remove the basis for any judicial activity to impose same-sex marriage. It would leave questions about domestic partnerships and civil unions to the individual states, but questions about marriage itself would be a matter of national policy, set by the Constitution.

A. Well, the Supreme Court of the United States is going to be ruling in the next few days in the Lawrence case, that involves the Texas sodomy law, which makes homosexual sodomy a crime but which does not criminalize heterosexual sodomy.

Most all commentators, myself included, expect the Court will invalidate the Texas statute. I hope that won't happen, but I expect it will happen. If it does, I very much hope that the Court won't adopt as its rationale the idea that there is some kind of "right" to homosexuality — that really would be a disaster — but rather take a narrower basis, saying Texas is within its rights to criminalize sodomy, but it can't do it in a way that punishes homosexual partners but does not punish unmarried heterosexual partners.

Now, I wouldn't agree with that opinion, but if the court pulled the trigger and overturned the Texas statute on that basis, it would be less damaging than if the Court, more broadly, invalidated the statute on the basis of an alleged right to homosexual sodomy.

Either way, that Lawrence decision from the U.S. Supreme Court will be followed by the Goodrich decision from Massachusetts, which I expect will say that under Massachusetts law, homosexual couples are entitled to marriage licenses.

At that point, we will switch back to the federal constitutional question whether states outside of Massachusetts are constitutionally required to recognize "same-sex marriage." That one, the U.S. Supreme Court will have to rule on, and I don't know which way the court will go.

The answer though, I think, is to get the judiciary out of this whole issue by enacting the Federal Marriage Amendment. That is going to require congressional action in the first instance, and then ratification by the states. We're going to have to work in state legislature after state legislature to see to it that the FMA is ratified, because it is the only way I can see to preserve the institution of marriage.

I have some good friends in HI who were active in this... They worked hard, and the people of HI, despite acts of desperation from the homo-promoters, woke up and decided to uphold the truth. This is such a serious issue, the homosexuals and their supporters actually want to see the world destroyed.

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