An Alternative to the Federal Marriage Amendment - Roger F. Gay

An Alternative to the Federal Marriage Amendment

December 29, 2003

by Roger F. Gay

From a legal perspective, marriage and family were redefined years before the current controversy over same-sex marriage began. The "original sin" (so to speak) was the transformation of marriage and family law into "social policy." Social policy is purely a political product, defined and controlled by government. The only viable response to the current treatment of marriage and family law is to return marriage and family to its protected status as an essential human institution, disallowing arbitrary political manipulation.

An essential step in the reclamation process has already been described in Fathers Rights? In defense of family and other fundamental rights. The article points to a critical case from Georgia that received far less press coverage than the more recent decisions on same-sex marriage. Yet the contrast between the lower court decision in favor of applying individual rights in family law and the Georgia Supreme Court decision to ignore the constitution in favor of purely political treatment defines the entire problem.

The Georgia Supreme Court supported the notion that family issues are not related to sacred or essential human activity. Family issues are not even private issues subject to individual rights. They went even farther than that. In relation to family issues, government control is absolute. There is no area of life that requires any sort of check or balance against arbitrary government intrusion; not in redistributing income or property, or creating and assigning debt. There is in addition, no need to respect the separation of powers between branches of government, or to exclude conflicting third party special interests from unduly influencing or even controlling decisions by courts.

The tendency of so-called "conservative" groups to ignore the redefinition of marriage and family over the past decade has been overwhelming. I recall Gary Bauer (ca. 1991) facing off against Rep. Tom Downey (D-NY) on the issue of child support enforcement legislation. At the time, Gary Bauer was head of the Family Research Council, an organization that has done no family research that I know of. Democrats controlled the House and Downey was making it emotionally clear that anyone who did not support his child support enforcement initiatives was his enemy. Despite the fact that a rather obvious political war against marriage and family was being spearheaded against fathers, and child support was the primary weapon (Downey one of the generals), Bauer explained that child support was just not his issue.

In 1992, Gary Bauer appeared in another hearing headed by Tom Downey, this time on Downey's government assured child support benefit. Bauer took a position in favor of stronger child support enforcement; in effect, supporting the political war against marriage and family. His price for that support was apparently an increased tax break for married couples. Despite the name of the organization he worked for (Family Research Council), this seemed to be the single issue of interest other than helping Republicans get elected. Bauer is now head of an organization called "American Values," a political interest group which similarly appears to have no interest in core American political values.

The "Institute for American Values" is the counterpart of "American Values." While espousing what appear to be socially conservative positions, it supports Democrats and is even more openly hostile to individual rights. "Affiliate scholar" for the organization, Tom Sylvester recently took part in a roundtable discussion at MensNewsDaily.com entitled Fathers' Rights and the Marriage Movement in which he presented fundamental rights as just an alternative policy choice. When confronted about the absence of distinction he confessed that he did not understand the argument. One wonders how a man can become an affiliate scholar for an organization called the "Institute for American Values" without having a clue about what the core American values are.

Anyone who still doesn't get it should consider the 1996 federal Defense of Marriage Act, which says that states don't have to recognize same-sex "marriages" granted in other states. After more than a quarter century of federal intrusion that led to the transformation of marriage and family issues from sacred and essential human institutions to mere social policy, the act leaves further redefinition, essential to sorting out the chaos, to the states. All state courts will find it quite difficult to deny equal treatment under laws that have no connection to anything more than an invention of government. (The Massachusetts decision on same-sex marriage made it clear that the court regards marriage as nothing more; its definition purely an artificial political choice. This is a general result of the federal intrusion into marriage and family policy over the past quarter century.) Besides that, everyone agrees that the federal Defense of Marriage Act is unconstitutional, and was therefore never a serious attempt to solve the problem. The two parties and their support groups worked toward the demise of marriage as we knew it and even now are doing nothing to preserve marriage and family.

The suggestion to amend the constitution to preserve marriage by defining it as a union between a man and a women is yet another way to avoid the core problem; the fact that marriage and family has already been ripped from its natural and cultural roots by Congress. After years of waiting to see what courts decide, and then years to carry out the difficult process required for such an amendment, it is unlikely that it will pass. Groups favoring same-sex marriage will carry out a professional campaign against it, while most conservatives who get public attention tend to be so burdened with historical support for anti-family policy that they will be unable to put together two coherent sentences in support.

There is really only one set of people that is emotionally and intellectually equipped to lead a defense of family movement; fathers. (On this point; see also Divorced Dads: Family Champions) After decades of feminist myth, family researchers and political pundits have finally gotten around to admitting that fathers are important. But even now they often grope for specifics, suggesting studies and experiments to define the role of fathers in families. Meanwhile, fathers have been acting like fathers in spite of people who don't know what it means. Even when surrounded by the strange events and ideas that we have encountered over the past quarter century of anti-family politics, we still find a way to defend the family. My suggestion to "conservative" (or other) groups that are serious about the defense of marriage is to either support us or get out of the way.