The Death of Marriage I
February 5, 2004
by
Roger F. Gay
The decision by the Massachusetts Supreme Court to extend all "protections,
benefits, and obligations conferred by civil marriage" on same-sex
couples continues to be a subject of discussion and debate around
the internet. Unfortunately, many liberals and conservatives alike
have bought into the ideas suggested by partisan advocates. Much of
the discussion is ill-informed and options are limited to those that
will do the least good.
It can be quite difficult to move a debate from a state of superficial
partisan bickering to clear and objective discussion, especially during
an election year. Regardless of the fact that those who have focused
attention on these issues for years know the answers, the average
eligible voter will more likely grasp onto their preferred party's
talking points and hold on for dear life.
One person who has focused a great deal on family issues for many
years is ACFC president Stephen
Baskerville. Regular readers of MensNewsDaily.com
may be familiar with his recent article, The
Father: A Family’s Weakest Link. Dr. Baskerville writes "Thanks
to a recent court case in Massachusetts, issues of marriage and family
now cover the front pages. But the family crisis is much larger than
same-sex marriage or homosexuality."
In his first
message as ACFC president (January 7, 2004), Dr. Baskerville writes
"We stand at a critical point. Families today are under attack
as never before. But this attack does not come primarily from pornography,
television, rock music, drugs, or even homosexuality. The attack comes
from government, and it targets the family's weakest and most vulnerable
point: the father."
Liberals and conservatives need to be convinced that families are
under attack, and understand who the aggressor is. Moreover, they
need to understand what the problem really is, and begin focusing
on objective evidence, analysis, and the consequences of family politics.
To be blunt, many people need to start by recognizing that family
is more important than partisan politics. Only then, I believe, can
they begin the process of deprogramming that is necessary in order
to look these issues in the eye and deal with them objectively.
Republicans blame "activist judges" for the redefinition
of marriage. Perhaps the most astounding position I have read in a
conservative discussion forum relates to the defense of this position.
I have been told that government has always been involved in marriage
and family. We should not be concerned that government, by acts of
Congress and state legislatures, has become more involved in recent
years. Only the courts, "activist judges," must be stopped
from extending government involvement on their own.
I am astounded by the expression of this view in a conservative discussion
forum because on its face it is obviously not a conservative view.
I find it odd (but not particularly unusual) when Republicans support
the ever-growing cancer of government intrusion into private life.
I also find the argument weak and rather offensive. We might like
to imagine that judges themselves are non-partisan, thus it would
follow that political parties are not to blame for judicial activism.
Although I believe that many judges do have strong party affiliations,
and that in itself is a problem, that is not the worst of it. We apparently
must also believe that judicial decisions are not effected by the
laws written by Congress and state legislatures. Thus, enabling us
to judge judicial activism as something entirely independent of legislative
activism. Therefore, we should ignore the role of state legislators,
congressmen, governors, and presidents in the destruction of marriage
and family during the period when we are considering how to cast our
votes. Pity the poor fool who falls for that one; the ultimate political
dodge.
The argument has been put forth that the sudden finding of a constitutional
requirement to recognize same-sex unions (regardless of what they
are called) as equivalent to "marriage" did not in fact
appear suddenly out of nowhere. There is a history of denial of marriage
and family as fundamental institutions linked to fundamental rights.
The road to the decision was paved with relatively recent federal
reforms and billions and billions of dollars in federal funding. The
problem has not been judicial activism so much as judicial inactivism;
the refusal of the courts to overturn laws that are too intrusive
and that have trampled family rights.
It has not been particularly surprising to me that some conservatives
and liberals still do not understand that marriage as we knew it was
effectively abolished before the Massachusetts decision. Unless someone
has gone to a great personal effort to research and understand family
law reforms over the past two decades, or regularly reads <i>MensNewsDaily.com</i>
or information from another competent source, how would they know?
Despite the fact that the fundamental social institution has undergone
a complete legal transformation, so-called "mainstream media"
has remained silent.
The recent intrusion of government into family life is not merely
a matter of degree. If it was, reducing the rights of heterosexuals
for the sake of expanding government control would not have led to
the birth of new rights for homosexuals. The complete destruction
of marriage and family (legally, as we knew it) was necessary before
a constitutional right for same-sex marriage could rise as a phenix
from the ashes.
For more than two centuries, family and the institution of marriage
were "recognized by law" in the United States. There is
a fundamental difference today, in that marriage and family issues
are entirely "politically controlled." To be recognized
by law is accepting of marriage and family as something created outside
of government, so important that laws are needed to recognize it,
but so established in the private domain that it must be respected
and protected as involving fundamental rights. By the time the Massachusetts
decision was made; "Simply put, the government creates civil
marriage. ... In a real sense, there are three partners to every civil
marriage: two willing spouses and an approving State. ... Civil marriage
is created and regulated through exercise of the police power."
I know that I will get arguments regarding the factual nature of
such statements in reference to "civil marriage." In the
eyes of the Massachusetts court, "civil marriage" must be
seen as distinct from marriage perceived in relation to tradition
and religious preference. Some social conservatives in fact argue
on religious grounds, with that being their only objection. Marriage
and family have been recognized and respected by tradition and by
religions throughout the world – because of what they are.. It is
an false and entirely ridiculous argument that because marriage and
family are widely recognized and respected, outside of civil law and
process, that similar recognition and respect within civil law is
unconstitutional.
The real basis of the new constitutional right for same-sex marriage
is that marriage and family now exist only as civil institutions,
created and controlled by political processes, defined by arbitrary
government services and arbitrary politically determined privileges
and restrictions. Anything that may be connected to tradition or religious
practice and belief has been abolished regardless of its fundamental
meaning, importance to society, and the effect abolishment will have
on parents and children. Marriage and family now means whatever politicians
define them to mean and only what they define them to mean. The nature
of marriage and family has been abolished. But it was not a sudden
death. The Massachusetts decision was only a pronouncement that was
finally so obvious that it could not be avoided in "mainstream"
public discussion.
As bad as the situation is for marriage and family, the overall situation
is worse. The transformation of marriage and family from established,
legally recognized institutions to politically controlled services,
privileges, and restrictions marks a fundamental change in the relationship
between government and the people. It is not so much through judicial
activism, but judicial inactivism that has allowed this to occur.
Courts have been more engaged in partisan politics (i.e. on the side
of parties rather than in opposition) than in performing their duty
to defend fundamental rights. As a result, marriage and family are
no longer fundamentally protected, but have been reduced to mere creations
of civil law controlled entirely and arbitrarily by political decisions.
As such, (phenix from the fire) the <i>equal protection clause</i>
has a broader and much more arbitrary reach. That is why the Massachusetts
decision came now, when no such decision was given by any court for
more than two centuries. Homosexuals have the same access to arbitrary,
politically defined statutory rights and obligations as everyone else.
It was congressional and legislative activism that led to the decision.