Why I Oppose The Federal Marriage Amendment

December 11, 2003

It's a political case; one that looks, feels, and smells political from top to bottom. It's a proposed solution that looks responsive in a minimalist superficial kind of way; created entirely without delving into the details of the problem it is supposed to address. It does not address the problems that led to the proposal, and it is a course of action that is likely to fail.

Why do we need a constitutional amendment to validate one of the most well established elements of human and natural law? The answer is quite simple. The federal government intruded. The redefinition of marriage seems at this point to be a product of state courts with opposition from political parties. But, the new decisions by state courts creating same-sex "marriage" have not redefined marriage. From a legal perspective, marriage had already been redefined. The courts merely applied the new definition in view of constitutional principles, recognizing the universality of certain rights with respect to protection against government intrusion.

The problem would not exist if constitutional rights that defend the population against government intrusion had been consistently applied throughout the past quarter century, but they were not. The arbitrary political  treatment of family policy began with so-called "no-fault" divorce. This article does not intent to present the pros and cons of that particular radical change in family policy. But, once states had decided to stop basing divorce decisions on reality and circumstance and a spouses commitment to their own solemn promise, a wall was broken. Many commentators at the time said that marriage had been abolished. Individuals, needs, and facts, as viewed through individual case review in courts no longer had much to do with it. It was then up to legislators to begin making arbitrary en masse decisions.

It was only a matter of time before special interest groups recognized the power shift from courts to legislatures; from individual rights to arbitrary political treatment. Given that special interest groups such as NOW which got the most attention from the press were national organizations, it is doubtful that anyone broke a sweat moving family law issues from state legislatures to the U.S. Congress.

Marriage as we knew it may have been abolished when "no-fault divorce" was introduced, but something had to emerge in its place. Marriage licenses were still being issued. People were still going through the ceremonies and building families. Nature mixed with human cultural evolution -- changes in law would not put an end to the behavior.

Congress overplayed the hand. The federal government wasn't supposed to be involved in family law to begin with. It involves authority that is reserved to the states and to the people. For the federal government to get deeply involved to begin with, there was no option but to begin weaving a tangled web. Congress did it with a vengeance.

Today, from a legal perspective, marriage is no longer a sacred institution that is defended against government intrusion under privacy rights. Marriage is a function of government, indistinguishable from the granting and distribution of welfare benefits.

In the Massachusetts decision establishing same-sex "marriage" the court wrote: "In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State." Even in dissent, justices reinforced the new nature of marriage. Marriage is "deeply rooted in social policy" that must "be the subject of legislative not judicial action."

The idea that marriage and family are defined as "social policy" is quite new in the United States. Marriage was a sacrament involving a solemn oath and bound to the most fundamental elements of human nature. Now it is merely a statutory construction swinging freely in the breezes of public mood and political manipulation.

I oppose a constitutional amendment to address this problem because it does not address the problem. It preserves the new meaning of marriage and family as a government function, even extending it to a definition given in our fundamental political document, the constitution.

And I oppose a constitutional amendment to address this problem because it avoids critically needed discussion on family policy during this election year. "Let's just calm down and wait," say the politicians. First we'll wait and see what the U.S. Supreme Court says. Then, perhaps try a constitutional amendment – even though that is unlikely to succeed.

Let's not wait, I say. The problem is clear. It is a critical, basic, definitive political problem. It is an election year. Let's discuss it now.

Roger F. Gay

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