Activist judges misconstrue equality

By Brian Fahling*

April 2004 – In Massachusetts, a court has discovered a right to homosexual “marriage” in the state’s constitution. In San Francisco, over 3,400 “marriage” licenses have been issued to homosexual couples at the direction of the city’s mayor. And recently, the U. S. Supreme Court decreed that the laws of nature and of nature’s God are in violation of the Fourteenth Amendment's equal protection clause because they could demonstrate no compelling interest for endowing only women with the physical capacity to bear children.

Actually, the Supreme Court hasn’t yet made that last declaration, but if homosexuals have a constitutional right to marry, then men, by parity of reason, must have a constitutional right to bear children; all it takes to rewrite the laws of nature, according to some, is a court order or legislative action.

Marriage, like life itself, was not created by government. Our Constitution, through the Fifth and Fourteenth Amendments, affirmatively protects life because the Founders were painfully aware that governments in every age and culture have demonstrated a willingness to deny the right to life. The definition of marriage, however, has never been questioned – until now. There was no need or thought about affirmatively protecting the definition of marriage in the Constitution because no government in any age or culture had tampered with the essence of marriage – the indispensable necessity of male-female union.

What was once utterly inconceivable, however, is now reality. The definition of marriage, and thus the essence of marriage itself, is under attack. Only an amendment to our organic law will protect what is fundamental to civilization.

High stakes
There are certain immutable characteristics of human civilization that have remained unchanged since humanity first appeared on earth. The most fundamental, indeed, the most indispensable to civilization is the male-female union. Every culture that has come into being owes its existence and perpetuation to male-female coupling where procreative purpose is a dominant feature of the union. There are no exceptions.

Furthermore, the physical union of a man and a woman is not isolated from the psychological and spiritual bond that they form. The complementary biology in the natural order that exists between men and women and gives them the ability to produce children, even if unrealized, is inextricably intertwined with the psychological and spiritual bond that makes a family. This is and always has been the natural order of life.

By definition then, normative family structure has always been defined by a male-female paradigm. Some cultures, though they are in the distinct minority, have variants of the one man-one woman family structure. But there has never been a variant to the fundamental necessity of male-female union for the creation and sustenance of the unitive whole that is called family.

The inherent dignity of humanity is imprinted in the male-female union because it reflects the beauty of a created order that transcends the individuals who comprise the union.

The decree by the Massachusetts  Supreme Court redefining marriage to include same-sex couples is a direct assault on the dignity of humanity precisely because it pretends to redefine the nature of humanity itself.

Many homosexuals, though, argue that denying them the “right” to marry is no different than laws that prohibited interracial marriage. They are wrong. Anti-miscegenation laws, as they were called, were designed to keep men and women of different races from intermarriage, not from marriage as such. For example, under anti-miscegenation laws, blacks and whites could still marry within their racial group; marriage, then, was not redefined, as homosexuals now claim a right to do, but denied on the basis of race to those who already met the natural requirements of marriage. 

In Loving v. Virginia, the Supreme Court struck down Virginia’s anti-miscegenation laws because, said the Court, “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

This self-evident and incontestable assertion about the nature of marriage destroys the homosexual argument because the coupling of same-sex partners is not and has never been considered “fundamental to our very existence and survival.”

By describing marriage as “fundamental to our very existence and survival,” the Court affirmed that the definition of marriage is inherently male-female, and not up for grabs under the rubric of “rights.” Biology cannot be altered by wishful thinking or court decrees.

Most Americans are agreed that the power to redefine marriage should not be placed in the supple hands of judges who would decree that it is what it is not. Social engineering is not in the judicial job description.

The recent polls indicating a majority of Americans oppose homosexual marriage are encouraging news. But for how long? The answer depends upon whether marriage is viewed as an institution established in the order of nature and dignity of man, or whether it is viewed as merely a matter of state prerogative available to all comers if only the courts can be persuaded or enough votes can be garnered.

If the institution of marriage is viewed simply as a matter of states’ rights, as some social conservatives seem to think, then we can expect fairly rapid erosion of the support for marriage.

However, the institution of marriage transcends political life, and its definition should not be made the subject of political experimentation in state laboratories any more than it should be placed in the hands of judges.

To argue that the definition of marriage is a states’ rights issue is to implicitly suggest that marriage really isn’t something that transcends culture and history – that it does not reflect the order of nature and the inherent dignity of man. And if marriage does not transcend culture and history, then it lacks an objective basis for its existence and may be altered according to the current fashion of the age.

There is a profound difference between regulating marriage and redefining it. States can and do regulate marriage through tax laws, laws dealing with health benefits for spouses, etc. But to say states have a right to redefine marriage is not to say states have the right to regulate marriage, but rather, to destroy it.

Recipe for disaster
The Supreme Court has demonstrated a penchant for social engineering and could redefine marriage with the stroke of a pen, and so presents an imminent threat that should be met with legislation stripping it and all lower federal courts of jurisdiction over the question.

State legislatures might also want to consider stripping their courts of jurisdiction over this matter. However, legislation is inherently transitory because it is subject to repeal. That is why a federal marriage amendment is critical.

The amendment process takes time, but it is the only surety we have against the inevitability of the redefinition of marriage by states and courts in the years ahead.  undefined

*Brian Fahling is a constitutional lawyer, policy analyst and the senior litigation attorney for the American Family Association Center for Law & Policy.