| MND COMMENTARY |
February 24, 2004 by David R. Usher Welcome to America's latest uninvited invasion -- "reality courtroom" -- and you are willy-nilly a player. The Massachusetts Supreme court unintentionally outdid Janet Jackson when it said gay marriage is constitutionally mandatory, prompting a social riot in San Francisco. These events have awakened everyone to the crucial fact we have not yet begun to pursue pro-family reform of law from valid contemporary legal perspectives. The reason why same-sex marriage is absolutely unconstitutional -- even in Massachusetts -- is easily proven when we draw from a number of bodies of law, including women's rights, racial equality, and separation of church and state. Those working to protect marriage continue losing the legal battle because they have largely litigated morals and tradition in "forward looking" courts which, since the court reforms of 1938, have increasingly refused to rule on those bases. No substantive, encompassing contemporary premise has yet been found to substantively support a finding that same-sex marriage is unconstitutional -- until now. Defining marriage in the context of civil rights Marriage is the first, and the greatest guarantor of human equality in history. It is the only civil rights institution that eliminates all natural and culturally-imposed social, economic, physical, and gender disparities of men and women. It is heterosexual marriage which forms the whole cloth of the human race. In marriage, it matters not who can bear children, who can financially support the family, or who can fix the SUV. The differences of the sexes are completely equalized and harnessed for the overall good of society, the economy, and the raising of children. Heterosexual marriage prevents segregation along gender lines. We have not yet realized that the "divorce revolution" is really a misnomer for gender-segregation -- with extremely high costs. Divorce and non-marriage are the primary predictors of poverty for women and children, along with a wide array of expensive, intractable social problems. Marriage is the constitutional construct creating a place for men in family and society. Margaret Mead expressed this decisively when she said; "Motherhood is a biological fact, fatherhood a social creation". The reason why marriage between men and women is an unfettered constitutional right is because its equalizing power is uniquely fundamental to the success of the human race and society itself; where this absolute right does not affect anyone adversely because it is totally inclusive of both sexes. Marriage has never been considered in this "civil rights" sense, perhaps because we did not have a need to do so until the "same-sex marriage" issue made it necessary. The Massachusetts Decision in Goodridge : An over-inclusive judicial mandate One of the primary criteria for rendering a Constitutional decision requires that the decision must not be "over-inclusive", thus providing the benefits to individuals who do not share the same characteristics as the litigants. The Goodridge decision is perhaps unparalleled in this regard. Goodridge does not require the State of Massachusetts to only marry gays and lesbians. It requires the state to marry any two people regardless of sexual orientation. The litigants on which this case is based are, therefore, an "invidious classification" -- irrational, capricious, and not related to a legitimate purpose. At law, neither the class nor the decision is valid for the purposes of constitutional litigation. Even if the Massachusetts decision required proof that one is a gay or lesbian in order to obtain a marriage license, the decision would remain erroneous even if the court ruled that only gays and lesbians could marry upon proof of their "sexuality". It would be impossible to prove that one is gay or lesbian in a marriage license office. This is because sexual preference is not immutable or recognizable on its face, as is one's race or sex. The basis for hearing cases by gay and lesbian activists -- who argue that sexual preference is somehow a "sex" -- collapses immediately. Why Roe v. Wade makes same-sex marriage unconstitutional Roe. v. Wade has meaning far beyond that of abortion. Roe means that women have nearly chattel control over reproduction. Roe is the keystone for false family law and public policy holding that the father is unimportant in family, childbearing, and child-rearing. Roe extends the biological fact that men cannot have children into discriminatory public policy wherein the mother has sole and unquestioned authority to dictate whether the father can be a father, beginning the moment a child is born. If we had two married gay men, and two married lesbians, neither "couple" could have children without the intervention of one or more "third parties". The third parties would become a party to the marriage for the purposes of providing sperm, paying child support, and perhaps filing a parental-rights suit -- and these third parties would be men in 90% of cases . This may make men a "suspect class" for the purposes of litigating against same-sex marriage. If two men married, they would not be able to have children. We can say decisively that Goodridge creates inequality by making all men a reproductively subordinated class, who perhaps could only become legitimate parents through adoption. Adoption is not reproduction, and cannot be considered an equalizing factor. We now revisit the issue of whether gays and lesbians constitute a valid class for the purpose of litigating same-sex marriage. Where two married women would have sole control over reproduction and chattel control of children, they are not in the same class as gay men. Therefore, Goodridge cannot stand, for it is founded on two dissimilar classifications of litigants, one whose civil rights would be immediately subordinated to the other. Marriage as a natural equal-rights institution: parallels in racial-equality decisions Brown v. Board of Education ruled that "separate is not equal" with respect to race and education. Subsequent rulings expanded Brown to cover many other areas of civil rights law and race -- such as interracial marriage -- which also decreases racial segregation. Same-sex marriage is a contradictory construct because it segregates by sex. Same-sex marriage would create two separate and unequal classes of parents based on sex. If two women married each other, they would have complete control of reproduction and chattel control of children born into the relationship. If the identity of the father was known, he would have little rights to even know his children, and could do so only by filing a custody suit at great expense. He would still have to support the children while having no right to be a parent. At law, he would continue to have no natural right to be a parent or husband, but would have all the responsibilities of one. We already know that single fathers represent less than 10% of all single-parent households. This is not because men walk away from the family or do not want to be parents. It is because when a child is born out of wedlock, custody automatically goes to the mother. In divorce, we see similar single-father household statistics -- over 75% of divorces are filed by women. The 10% of fathers who do have custody occur usually because the mother did not want custody. It is clear that proponents of same-sex marriage are selling gender segregation, in a manner not unlike Stephen A. Douglas's losing argument before the civil war suggesting that popular sovereignty made slavery merely a matter of choice. This student of family law believes that the legal weight equating the physical ability to bear children with automatic chattel ownership of them is unconstitutional. Children are equally the genetic result of both the mother and father. At law, we should see the father as having equal right to raise the child because of genetics. DNA testing determines paternity for the purposes of child support and alimony. Half the DNA of a child is that of the father. The expression of the father's "genetic property" in a child should create an equal right to family attachment, custody of children, and the right to raise them. Separation of church and state -- incursions of the State into matters of Church In Great Britain, the Ecclesiastical courts have control over marriage and divorce. Shortly after America was founded, we rejected this idea with Amendment I. of the United States Constitution -- establishing the "separation of church and state". The "establishment clause" is commonly interpreted to mean that the State can neither formally aid or formally establish a religion. Beyond the usual interpretation, the words in Amendment I. "or prohibiting the free exercise thereof" suggest that the framers of the Constitution intended to form a bilateral balance between church and state, not a one-way street placing all religions at the feet of a King or a judge. Goodridge appears to be an unconstitutional incursion into matters of the Church -- where religion regulates marriage and government harnesses those marriages for the purpose of taxation and the economy. Certainly, there is nothing in the constitution granting government authority to decide what marriage is or is not. Goodridge is ultimately an order perhaps requiring all religions to honor and perhaps even perform same-sex marriages. It appears to provide standing for suit against churches that refuse to honor or perform same-sex marriages, and perhaps even Boy Scout groups that do not allow homosexual dating. Article III. of the State of Massachusetts Constitution suggests the intent of the state founders was to bar the state from forcing same-sex marriage on its citizens: "As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality ...". Goodridge violates this intent where it invalidates the fundamental principles of every major religion. Secular humanism at law: Marriage as a purely economic activity Over the course of time, both the federal government and states have increasingly come to see marriage as being predominantly an economic activity. This change in attitude subsequently transformed marriage into an entitled, unilateral choice for "no-fault" divorce. No state has a substantial body of code establishing real meaning to the contract of marriage. But every state has a substantial body of code defining divorce as being the automatic transformation of a marriage into an economic liability against one parent -- most often without any cause whatsoever. Every state rigidly enforces child support and alimony, yet no state enforces parental rights of the non-custodial parent. No state questions whether a divorce is even a responsible choice to begin with. Feminist activists have taken advantage of our vitiated legal view of marriage. Having deconstructed marriage to nothing more than an economic activity, feminists are now re-constructing it to realize their sexist political agenda. Activists suggest that lesbian marriage would enhance the economy and harm no one in the process. Anyone who has studied the effects of father-absence on children, and the hundreds of billions of dollars we spend on reactive social services and support enforcement knows this is a massive deception. Our sole focus attempting to make divorce economics equal to that of marriage for women has preempted development of positive marriage policy. We know that a middle-class family requires 1.4 incomes of $29,300 [1994 dollars] to be a middle-class family. It is impossible to turn that family into two households with two sets of expenses, and still have a middle class family. After forty years, we should realize that divorce should not be preferred public policy. We should refocus law and policy funding to help marriages succeed -- paralleling what religions do. Same-sex marriage and civil unions: Replacing welfare and marriage with "super-families" Where women have unilateral control over reproduction under Roe v. Wade, same-sex marriage and civil unions would have the effect of leaving men completely without standing in society. This has been a primary goal of the National Organization of Women for the past thirty years. Why would N.O.W. throw so many resources into this effort, when only a very small percentage of their members are lesbians? Why would the "normal" women of N.O.W. fight for it too? Answer: The political objective of the National Organization of Women, for some time, has been to sequester all the benefits of marriage, child tax-credits, and welfare solely for women. America has unsuccessfully wrestled with welfare problems for years, and so has the National Organization for Women. Their plan is to reform welfare by creating the married two-mother "super-family", making the economics of the traditional "two-parent" family work for any two-mother married household regardless of sexual preference . I call this arrangement a "super-family" because it would have six sources of income : the incomes of two married mothers, two sets of child-support orders, and two sets of welfare entitlements. Heterosexual marriages have only two incomes, and would clearly be an economically inferior choice. N.O.W. knew it could not make this transformation of law if it demanded the right for any two women to marry. Gays and lesbians were chosen as the victim-class needed for sneaking penultimate matriarchy into law. The evolution of this stratagem, since the mid-1970's, can be found by extensive readings of radical feminist literature -- if one can bear reading it all. So where do gay men fit into this picture? N.O.W. found it politically beneficial to harness gay men to present a "unified front" appearing to speak for both sexes. Non-gay and non-lesbian feminist men and women were also utilized in forming PFLAG clubs -- Parents and Friends of Lesbians and Gays, in hopes of making the political initiative appear more mainstream. The gay movement is clearly a subset of the feminist movement. Men's studies organizations on college campuses are nearly always operated by the Society for the Psychological Study of Men and Masculinity (SPSMM), which is a part of Division 51 of the American Psychological Association. SPSMM declares its agenda, which is essentially to convert normal men into feminists and homosexuals on its web site : " SPSMM endeavors to erode constraining definitions of masculinity which historically have inhibited men's development, their capacity to form meaningful relationships, and have contributed to the oppression of other people. SPSMM acknowledges its historical debt to feminist-inspired scholarship on gender, and commits itself to the support of groups such as women, gays, lesbians and peoples of color that have been uniquely oppressed by the gender/class/race system. SPSMM vigorously contends that the empowerment of all persons beyond narrow and restrictive gender role definitions leads to the highest level of functioning in individual women and men, to the most healthy interactions between the genders, and to the richest relationships between them ." Why same-sex marriage and civil unions would be highly destructive of society It is important to realize that there is essentially no structural difference between same-sex marriage and "civil unions" as permitted in some jurisdictions. In both cases, women can segregate and form "super-families", and men can do nothing about it. With a present divorce rate of over 50%, and approximately 25% of mothers being unmarried, we can predict that when word gets around the gossip networks we will see a rush towards married two-mother households, with live-out boyfriends being relegated to stud duty. Deconstruction of fatherhood since 1960 has resulted in very large numbers of young men not becoming a part of society. Approximately half of men are removed from their families, with little or no cause, usually over their strident objections. Their sons often don't finish high school, don't go to college, don't integrate into the workplace, and often end up in the underground economy and prison. This expands the belief that men are bad which, in turn, fortifies radical feminist policy seeking total control of society, family, and economic resources to women. Same-sex marriage would create the perfect gender-segregated two-tiered society in the eyes of feminists. This model is already largely in place due to divorce and the welfare/child-support state. It is only lacking the false "right" for any two women to marry each other. The history of entitled "women's choice" indicates same-sex marriage and civil unions will accelerate the demise of traditional families far beyond the startling numbers we have seen during the past forty years. Social data indicates we are already most of the way down this road, and that we have gone too far driving men out of society. It is time we not only strike down the Massachusetts decision, but take aggressive action reversing anti-family policy in divorce law that brought us to the present-day situation. We must reform the legal profession's self-regulated monopoly that has largely converted the marriage market into a welfare and child support state. We can begin by identifying divorced and unwed men as suspect classes for the purposes of aggressive constitutional civil rights litigation in the areas of social and family law. The level of corruption and misuse of law from Wall Street to Your Street proves that we must create independent disciplinary commissions to handle complaints against judges and attorneys. The balance of rights in Constitutional decisions: Constitutional decisions require high levels of judicial scrutiny. "Strict scrutiny" is applied in cases involving fundamental rights and "suspect classes". The concept of "equal protection under the law" requires protection of heterosexual marriage before consideration of anything else. Where "sexual orientation" is predominantly a behavior, it does not classify as a race, sex, or creed for the purpose of seeking this equal protection. If gays and lesbians formed a "suspect class", their request might be justifiable. Where sexual preference is a lifestyle choice (which may have some genetic background), they cannot claim the high level of scrutiny afforded to issues of race, sex, or creed. Case in point: Many human behaviors such as murder, rape, and drug addiction have known genetic factors. If genetic factors constituted foundation for substantive equal protection of "lifestyle choices", then rape, murder, and drug-use would be constitutionally protected activities -- and homosexual rights activists might have a valid claim. Law serves an intentional purpose of intentionally directing individual choices so that a just, free, and equal society can exist. This necessarily means that same-sex marriage is unconstitutional, and that perhaps we should be more strongly discouraging homosexual behavior. Even if the courts were to apply "strict scrutiny" to these cases, same-sex marriage would not prevail. Rights are a balance of the rights of others. Where same-sex marriage would establish the sole control over reproduction, children, and family by women, the fundamental right of men to procreate and raise their children would be fundamentally removed. Under strict scrutiny, same-sex marriage and civil unions would be denied if government demonstrates an important governmental objective that does not merely rely on arbitrary sexual stereotypes. The list of these objectives is extensive:
Changing the public battleground from same-sex marriage to heterosexual marriage We bought into the divorce revolution and ended up teetering at the precipice of same-sex marriage. It is not too late to change the battleground to pursue pro-family policies that have traction in public and politics. It is a fact that anti-family policy has left more women and children in poverty and at risk for their personal safety than any war in American history. Marriage and pro-family programs helping people work through the normal processes of marriage and aging provide what most women wanted all along -- and a much brighter future than any other "solution". The National Organization of Women and its political cohorts led women into this inhumane situation. It is both reasonable and politically correct to hold them responsible for it. We can promise a very bright future for all Americans in pro-family reform policy. My experience in legislation and politics over the past fifteen years indicates we will always prevail in public by offering up policies that truly benefit woman and children. In doing so, we relocate the battleground from victim-entitlements and scare tactics to solid policy turf that anti-family activists cannot possibly win on. The legitimate father's rights movement has been actively and peacefully working to protect and fortify the intact two-parent family, in a wide variety of reasonable ways, for about forty years. Their work was overwhelmed by radical feminists who vociferously convinced everyone that family and social policy was solely a "women's issue", allowing them to take strategic control over law schools, politics, academia, the A.P.A, and public policy. Conservatives and some mainstreamers finally realized that father-absence was a major problem in the early 1990's, and are beginning bring them into the policy forum [HUMAN EVENTS:: Conservative Spotlight: Dr. Stephen Baskerville] . America does not have time for a casual learning curve. Immediate and aggressive legal action must be taken to right this wrong -- to save the institution of heterosexual marriage. At this critical juncture of social history, we must realize that being pro-father provides the necessary background source, and in fact is the litmus test, for forming balanced answers that will produce truly-effective pro-marriage and pro-family initiatives benefiting all Americans. Now here is the long-overdue civil-rights issue we have all been waiting for that effectively ends the same-sex marriage issue: We must now grant to fathers the same right to be in the family as we have granted to women in the workplace . Same-sex marriage would make this forever impossible. Most importantly, it would be the final end of heterosexual marriage -- the very first civil rights institution that has naturally equalized gender power since the day the Magna Carta was signed in 1215. David R. Usher is a Legislative Analyst for the American Coalition for Fathers and Children, Missouri Coalition . |
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