Marriage Is Not A 'Legal' Issue
By Peter and Helen Evans (07/18/04)
Let us begin by acknowledging an error, pointed out by (only!) two observant readers of our previous article, "Who Benefits from Gay Marriage?" We suggested, incorrectly, that "civil unions" conferred rights and protections equivalent to "civil marriages." They do not.
And it is for that very reason that the gay activists want to have same sex unions included within the legal definition of marriage. The juicy prize thay have their eyes on is described this way on the Gay & Lesbian Advocates & Defenders (GLAD) website.
"According to a 1997 GAO report, civil marriage brings with it at least 1,049 legal protections and responsibilities from the federal government, including the right to take leave from work to care for a family member, the right to sponsor a spouse for immigration purposes, and Social Security survivor benefits that can make a difference between old age in poverty and old age in security. Civil unions bring none of these critical legal protections."
GLAD goes on to say that...
"A civil union, on the other hand, is a legal status created by the state of Vermont in 2000. It provides legal protection to couples at the state law level, but omits federal protections as well as the dignity, clarity, security and power of the word 'marriage.' "
We admit that all these things sound 'nice', but we need to ask ourselves why, over the years, they have been conferred on traditional marriage. Turning to the more emotionally charged current question of whether the American people should allow same sex unions the "dignity, clarity, security and power of the word 'marriage' " we believe that this is a question best answered by "we, the people" and not arbitrarily foisted upon the nation by a 4-3 decision of the Massachusetts Supreme Court.
That decision seems to hinge on the fact that nowhere in the Constitution of Massachusetts nor our founding documents is marriage defined according to the "one man, one woman" formula. This was not an accidental 'omission' on the part of the Framers; it was an indication that the nature of marriage was another of those self-evident truths dear to the hearts of all Americans. In today's litigious atmosphere, it is no longer good enough that "everybody knows" what real marriage is. Nowadays, the operating assumption seems to be that if something isn't positively stated, then "anything goes."
Many have considered the particular genius of our Constitution to be that it did NOT positively state all of the rights of the people (these being bestowed by the Creator, not the sate), but DID positively state (and thus limit) the powers of government and, in the first ten Amendments, further limited the government's power to infringe the liberties of the people. The final Amendment of the "Bill of Rights" guarantees that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This would suggest that, in the case of omission of a positive statement (e.g. a definition of marriage), the opinion of the people should be sought, in order that the government, in whatever branch, should be able to act with legitimacy.
Article 5 of the Massachusetts Constitution states, "All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them." This article, in conjunction with the 10th Amendment of the federal Constitution, should have been sufficient to cause the Massachusetts Supreme Court to recognize that they would be acting beyond their competence in their controversial ruling, and sought the opinion of the people to dignify, clarify, secure and empower the legitimacy of their action. In the absence of something positive in their State Constitution, they should have abstained from the case. Instead, they legislated from the bench, by-passing the power residing in the people. In our opinion, this is an insult to the intelligence (not to mention sovereignty) of all right-thinking people.
Undoubtedly, this will be thrashed out at (expensive) length in the courts. Our contention in this legal context is that, where the law does not contain a positive distinction relevant to the issue in question, we must resort to the primordial authority of "the people." This will take the question out of the narrowly legal realm and back into the moral-cultural realm, where all the answers available to mankind must be found.
It is, of course, true that same-sex couples would benefit greatly (1049 ways, apparently) from having their unions legally recognized as being equivalent to traditional marriage. It seems to us highly unlikely that all these rights, privileges and protections can be 'legitimately' (as distinct from 'legally') conferred by a culture and a tax-paying society upon a union that "everybody knows" is NOT marriage.
Another paragraph of the "Limitations of Civil Union" from the GLAD website seems to suggest that the intention of GLAD is rather more than narrowly legal, although they quite naturally see the law as the weakest obstacle thwarting the essentially cultural agenda of the homosexual activists they represent. Here it is.
"Separate & Unequal -- Second-Class Status: Even if there were no substantive differences in the way the law treated marriages and civil unions, the fact that a civil union remains a separate status just for gay people represents real and powerful inequality. We've been down this road before in this country and should not kid ourselves that a separate institution just for gay people is a just solution here either. Our constitution requires legal equality for all. Including gay and lesbian couples within existing marriage laws is the fairest and simplest thing to do."
Yes, "our constitution requires legal equality for all." Not incidentally, the Constitution refers to individuals and their equality before the law. However, it does not, and cannot, require that we pretend that the by-definition sterile union of same sex couples is 'equal' to the uniquely fertile union of heterosexual couples, which, because it alone reproduces "the people," is accorded the preferential treatment that society overwhelmingly supports.
"Including gay and lesbian couples within existing marriage laws" would indeed be the "simplest thing to do." But it would certainly not be "fair." Homosexual activists have a long way to go to demonstrate that same sex unions benefit society to the same degree as real marriages. The question of whether or not they do will be decided, not in the court of law, but in the court of public opinion.
It will be interesting to see how this all unfolds.
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