-
Kennedy’s Benchmarks
July 14, 2004 | 0 comments
Another Perspective
A Marriage Proposal
Citizens should say “I do” to self-government.
If there is anything which it is the duty of
the whole people to never entrust to any hands but their own,
that thing is the preservation and perpetuity, of their own
liberties, and institutions.
— Abraham Lincoln, Speech at Peoria, Illinois, October 16,
1854.
The recent decision of a federal judge in San Francisco that California’s “Proposition 8” violates the U.S. Constitution’s equal protection and due process provisions is just the latest example of the reign of judges over America. The fourteen words at issue stated simply: “Only marriage between a man and a woman is valid or recognized in California.” This sentiment was supported by a clear majority of the citizens of California in a full and fair election. Unfortunately, many unelected judges have grown accustomed to imposing their personal policy preferences, the will of the people notwithstanding.
Certainly, the decision will prompt much debate about the nature of marriage. Many will likely again advocate amending the Constitution to permanently fix the definition of marriage as consisting “only of the union of a man and a woman,” as one prior proposed amendment read. While I support such an amendment as a valid means to address the issue, I believe there is something far greater at stake that such an amendment would not address — our very capacity to govern ourselves.
In recent decades, Americans have tolerated an increasingly arrogant judicial branch, and allowed elitist judges to impose on society their own personal values in the name of the Constitution. On everything from abortion to marriage, environmental policy to illegal immigration, our courts have intervened (and legislated) to an extent never contemplated by our Founders, or their Constitution.
As a result, the average citizen today not only feels, but in reality is quite removed from the political process. It seems many citizens have become, in Tocqueville’s prescient words, “nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” Rather than determine for themselves such fundamental issues as abortion and same-sex marriage, many seem resigned or even content to having such momentous public policy decisions made by judges — for whom they do not vote and against whom they have no recourse.
This judicial usurpation of the legislative function poses a far greater threat to the future of our nation than does same-sex marriage. Even those who disapprove of same-sex marriage could tolerate its presence, so long as they had the opportunity to be heard on the matter. We must realize that it doesn’t matter whether judges deciding these fundamental issues get them “right” or “wrong,” the real problem is that they have the power to decide at all. To address these issues, I hereby propose the following amendment to the Constitution of the United States:
Section 1 Marriage in each of the individual states shall be defined by the elected legislature of that state, or by the people thereof, except that marriage shall not be defined to include more or less than two persons. A union between one man and one woman, otherwise valid under state law, shall be recognized as a marriage by all states, territories and possessions of the United States.
Section 2 Neither the Full Faith and Credit Clause nor any other provision of this Constitution, or any state constitution, or federal or state law, shall be construed to compel any state, territory or possession of the United States to recognize any marriage, or to confer any benefits, rights, privileges or immunities on any persons married in any other state, territory, possession or foreign country, except a union between one man and one woman.
While on its face it deals only with marriage, in its substance this amendment accomplishes much more — indeed, it serves as a stark reminder, not only to the judiciary, but to the people that, as Ronald Reagan stated in his First Inaugural address, “We are a nation that has a government — not the other way around.”
Those who support traditional marriage should find plenty to like in this proposal, as it emphatically reaffirms that marriage is an issue for the people to decide, either directly or through their elected representatives. In making clear that it is the people who hold the ultimate power to decide this fundamental issue, the amendment will have other salutary effects. First and foremost, it will provide an incentive to become active and participate in the political process on a state and local level. Citizens will once again have a stake and voice in their government, and control over their fundamental institutions will be in their hands.
Furthermore, inasmuch as the proposal avoids setting the definition of marriage for the entire country, it can also be seen as a compromise. By promoting this amendment, the supporters of traditional marriage cannot be cast as imposing their view on the rest of America. Instead, the amendment merely takes the rather unremarkable approach of affirming that whatever else marriage is, it must include the union of a man and a woman. Opposition to any proposal to let the people decide this question would place advocates of same-sex marriage in an awkward position, as they would rightly be viewed as seeking judicially to impose their position on the entire country, the precise thing for which they have condemned those who oppose their efforts.
Indeed, if the people of a state support it, the amendment does not forbid same-sex marriage. This experimentation on a state-by-state basis may have its own benefits. For example, if the people of say, Massachusetts or California decide that they want same-sex marriage, they can have it — and the citizens of the other 48 states can witness the results, draw conclusions, and make their decisions for their own state accordingly. In addition, if a state disfavors same-sex marriage it cannot be compelled to recognize such a union performed in another state. In this regard, the amendment restores some degree of state sovereignty and principles of federalism, and allows citizens who either strongly oppose or support same-sex marriage to vote with their feet, and move to a state where their view is more widely accepted.
Finally, the proposal also limits future debate by restricting the framework within which states have authority to define marriage, by mandating that marriage consist only of two people. This rules out polygamy and group marriages, and will prevent any “slippery-slope” from taking affect. The amendment also mandates that a one man, one woman marriage is valid in all fifty states, thereby prohibiting any state from disallowing or disfavoring traditional marriage.
Certainly, this proposal is not perfect. However, it does represent a fair compromise, and is consistent with our once-proud tradition of self-government. Moreover, it allows for both sides to achieve victory to the extent that they can convince their fellow citizens that their point of view is better, something not possible in the judicial arena. It also allows for incremental change, encourages debate, fosters civic responsibility and participation, promotes an informed and active citizenry, and empowers those closest to and most affected by the issue to determine for themselves which path to take, and to change course if necessary. And isn’t that what self-government is all about?
Letter to the Editor View all comments (32) | Leave a comment
More Articles by Mark M. Trapp
More Articles From Another Perspective
http://spectator.org/archives/2010/08/13/a-marriage-proposal
Follow us:
ADVERTISEMENT
Current Issue
- Of Wizards and Weapons
- Hannah and Her Friends
- Self-Righteous Republic
SPONSORED LINKS
FLASHBACK TO: 1995
-
Pope Culture
A man of faith in a godless age is hitting Americans where it hurts.
-
Why the GOP Does Not, Like, Totally Suck
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
-
Dames at Sea
-
In the Absence of Guns
In Britain, defending your property can get you life.
-
The Metaphysical Martini
-
Counting the Costs of Clintonism
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
-
Chuck McHagel
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
-
The Legacy of Old John and Mother Fresh-Roasted
-
It’s the Best Time of the Year
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
-
The Bush Crack-Up
Was the President done in by the economy, or by the politics of the economy?
Clip of the Day
ADVERTISEMENT
Appleby| 8.13.10 @ 6:50AM
People are so used now to passively accepting whatever is thrown in their faces, that the mere idea that one can say NO is intoxicating to some folks -- the look in any two-year-olds eyes as she stands foursquare and says joyfully NO! as Mommy implores her to put on her clothes, eat her supper, or take her nap, ought to be proof of the power of that little word to anybody.
Now if only the people OVER age two coul catch the hint.
Louis Jenkins| 8.13.10 @ 8:55AM
Yes, the American citizen has grown accustomed to the Judicals telling us what to do. And we do it regardless of how assine or in left field the mandate directs. The people love law and order, so they do just as they’re told. (At least the majority does.) We even accepted the marriage license, a government mandate that requires money as a form of a tax, and those who enjoy an alternative life style will now pay the tax. We pay the taxes of autos, our homes, our day to day existence, all in the name of law and order. We are sheeple, and will continue down the road of taxification regardless of what happens. The government knows this.
Len| 8.13.10 @ 9:02AM
The writer proposes self-governance, yet at the same time wants to give the government more power...ayyy, such cognitive dissonance.
Rather than amend the US constitution to push more power upward, which is what makes these judges able to dictate to the people, take government out of the equation period. Marriage should never be something that the state is involved in, at least in sanctioning. There may be legal issues in a divorce, but to say that by the power invested in the state a marriage is recognized is horrible.
As for full faith and credit, that always was an economic/financial clause.
David Trapp| 8.24.10 @ 6:45PM
Len missed the entire point of Mark's argument, it wasn't that he wishes to create 'more' government control, instead he advocates allowing the people to decide. Len, you need to reread the article.
LawStudent| 8.13.10 @ 9:47AM
The best article written on the subject so far. Well done.
Jim Hlavac | 8.13.10 @ 11:10AM
While this seems like a good proposal, it opens up the problem of the "full faith and credit" part of the laws of one state being respected in another. And if a gay couple is legally "married" in Massachusetts, but moves a few miles to say, Rhode Island, they're no longer "married"? How would that work? Would it be instant divorce? What would it be called, this new legal situation? This sounds like a legal nightmare of the same sort that Prop 8 puts forth in that it invited judicial review and decision. Some states now recognize gay marriage -- some just civil unions, reserving the word "marriage" to man-woman marriages. Would a new word solve the problem?
For instance, could gay "marriage" be called "twainage" (from twain, for two,) or something? Would that satisfy both sides of the issue? -- the exact same thing, but a different word? Or is the very concept of a gay couple so anathema to so many that even civil unions would not be OK by any name? And if civil unions are OK in California, would such a legally joined couple now be un-civil unioned when they go to say, Nevada, which might prohibit or not offer such a thing? Would such a de-legalization be only for those moving, or even for those in for just a quick visit?
It strikes me that since gays are in all 50 states, and gays are American citizens, endowed with certain inalienable rights, and gays are all taxpayers, whichever arrangement, by whichever word, would have to be valid in all 50 states.
For those who decry gayness as a sin, so are divorce, adultery and kids out of wedlock (far more injurious to marriage, indeed) -- but they're not illegal. For those who say that gays are psychologically or psychiatrically not fit, wouldn't that open gays to be covered by the American With Disabilities Act? If it's a "choice" isn't it free speech, free association, freedom of religion? Now matter how you slice this issue, some are going to be unhappy, and thus keep returning to legislatures, courts and referendums, to try to get their view enshrined in law. The fate of gay people is a part of the national debate now, and it's not going to go away. About the only thing certain in this debate is that there is a legal limbo of sorts for several millions of our countrymen, however loved or despised they are (no one even knows how many, though estimates range from 1% to 10% -- which is quite a spread.) It will probably be a few more decades before it's resolved, but at least it's being talked about. Just a few short decades ago gay bars were being raided and the customers paraded through the media and courts, destroying lives further. But if Americans can't come to a conclusion about why gay people are gay, then there can never be a resolving of the issues of law relating to gay people. And courts are one way those things are tackled, not just referendums and legislative act. Would a state, under this sort of Amendment, be able to pass a law or referendum for arresting and incarcerating all gays within her borders, while just across a border, another state says gay marriage is fine? That's quite a legal pickle, isn't it. So whatever comes out of this, it's got to be national in scope, which is why this sort of Amendment leaving it to state by state will ultimately not work.
HDG| 8.13.10 @ 11:53AM
Jim: excellent points, well reasoned. I'm also tired of people saying that a "clear majority" voted to ban gay marriage. The whole point of the constitution is that a "clear majority" cannot take away a minority's constitutional rights. Instead, the constitution must be amended, by a super-majority vote of the Senate and the separate states. In other words, because we have a constitution, this is not a simple democracy, where the majority always rules. Our founders were concerned about a tyranny by the majority just as much as tyranny by the King (or by judges)!
Bruce Berger| 8.13.10 @ 6:52PM
HDG,
Except there is no constitutional right to marriage, either straight or gay. So there is no right being denied to gay couples. Remember, marriage is a state-sanctioned (ongoing) act that is promoted by the state because of its presumed positive effects on society as a whole. There are many actions that the state promotes that are not rights. Don't confuse the two.
Gay marriage will only be durable when it is indeed sanctioned by the state through legislative processes.
geokster| 8.14.10 @ 1:35PM
Gee,,, all along I was laboring under the false impression that marriage was instituted by God.
Kaz| 8.14.10 @ 2:25PM
Jim, your objections sort of presuppose that, A.) only a federal solution is possible or practical, and, B.) since gays are Americans, taxpayers, etc. they should enjoy equal treatment under the law.
Both are fallacious arguments. The remedy Mr. Trapp promotes is what is DESPERATELY needed and that is a return to adherence of the 10th amendment (and the Constitution) and away from judicial activism at the federal level. It leaves the question of sanctioning marriage to the states (democracy in action) and puts up a firewall against judicial overreach. ALL laws emanate from objective truths and moral belief (gays may be citizens, but conferring upon them a status which refutes hundreds of years of tradition and belief flies in the face of common law). Take that away and you have no law...only judicial tyranny.
David| 8.13.10 @ 1:51PM
Mr. Trapp, I think your amendment will not work for a few reasons, with the crux of all of them being fairness and treating people equally under the law.
First, it should be a federal amendment because what is to stop homosexuals from marrying in a state where it is legal and then moving to state where it is not recognized. The result would be endlesss civil rights litigation again.
Second, if any two consenting adults can marry, why not 3, 4, or more. I don't see how it is fair to deny any number of consenting adults the "right" to marry. Is their love for one another any less than any two men or two women? Shouldn't they have the "right" to marry whoever they choose?
Last, if any two consenting adults can marry, why not allow brothers and sisters, mothers and sons, or any other combination of family members to marry? Most of us may cringe at the idea, but if they truly love each other in a romantic way, how can we deny them the "right" to marry while saying that 2 men or 2 women do have the "right" to "marry".
The only argument I have heard against it other than moral ones, is that they would produce hideous offspring. That argument was made because until the homosexual movement everyone accepted that one of the main reasons for marriage was procreation. The hideous offspring argument is irrelevant in a society that allows abortion through all nine months of pregnancy and for any or no reason at all.
In my opinion, if this society allows homosexual marriage, then in fairness it should allow all marriages among consenting adults.
I don't want a society like that, and that is why we should fight to amend the constitution at the federal level to state that marriage is between one man and one women.
Alan Brooks| 8.13.10 @ 4:11PM
Prop. 8 is based on the tyranny of the majority. But do what you want, gay marriage has become a political football on both sides.
Tim*| 8.14.10 @ 6:29PM
Yeah , so what Brooks ?
Your girlfriend Obama is based on the tyranny of the majority too .
Alan Brooks| 8.13.10 @ 4:15PM
Ideology is dead-- long live ideology!
dcd| 8.13.10 @ 5:37PM
The issue would not have come up if the government didn't stick its nose into marrige, particularly the subsidizing of it, in the first place. And lots of those tricky rights issues disappear when marrige isn't the gateway to entitlements and freebies.
benrush | 8.13.10 @ 6:04PM
There is no inequality under current law. Homosexuals are free to marry now - someone of the opposite sex. Everyone is treated equally under current law.
The homosexual agenda is being pushed and financed by communist countries outside of America because they want to SMASH MONOGAMY and demoralize the people. They want a soviet constitution and social justice under communist style law.
That's the origin of the war in America - it's being forward for propaganda and political purposes, it's goal being the overthrow of the nation and the redistribution of the nation's wealth to all things socialist and if they have to destroy the family unit to do so it doesn't make any difference to them.
Kay| 8.13.10 @ 6:11PM
Here's a thought: How does the government have the right to determine what only God has ordained? Local governments collecting a fee for a marriage license is not on the same par as determining who may marry. I say they have no right to remove or change what only God the creator has established: a union between a man and a woman. Render to Caesar what is Caesar's; render to God what is God's. Seems we've drunk the Kool-Aid.
Kay| 8.13.10 @ 6:14PM
Another comment-- A declaration of the definition of "marriage between a man and a woman" in the Constitution would have been outrageous to our Founders. They knew better. They believed better. They lived better. And history has proven we are better off for it. We are too smart for our own good. I like the poster which reads, "A moral wrong doesn't make a civil right".
MoeBlotz| 8.13.10 @ 8:30PM
Depends on what the meaning of the word marriage is.
Prudence| 8.14.10 @ 8:44AM
When the judiciary overrides the electorate on issues which are not defined in the Constitution, we're in danger of being ruled by dictators.
John DuBose| 8.14.10 @ 9:07AM
This proposal makes my head spin.
Marriage exists on multiple levels and in several ways. As long as people refuse to see it in nuanced terms, this silly fight will go on forever.
1 As a spiritual or religious thing, it is only for individuals or freely formed groups "churches" to decide what a marriage is.
2. People as individuals have the natural right to form all sorts of relationships. We call the ones that sometimes have to be enforced by government action CONTRACTS. As we the people make laws through our representatives, this is what we need to keep in mind. The government owes us, each and every one, honest enforcement of the contracts we make.
There are many exceptions in that some so called marriages are really forms of exploitation. I think that pologamous situations are intrinsically exploitative. But most gay couples are not exploiting anyone.
Some folks ( children and disabled adults ) sometimes need extra protection by the state.
In my mind, this supercedes any kind of marriage.
4. Gay couples are biologically incapable of handling some aspects of traditional marriage. And hardly anyone with good sense would grant custody of minors to gays when reasonable heterosexual people were available. State legislatures need to tackle this one. The contracts of gay marriage need to be seen as separate from and a little inferior to traditional marriage contracts.
Ron Branson | 8.14.10 @ 4:00PM
I am Ron Branson, National J.A.I.L. Founder. The current history Re Prop 8 is that the People first passed Pop 22, a law defining Marriage. The California Supreme Court overturned it. The People then made it a constitutional amendment. The California Supreme Court upheld its constitutionality. This decision was then challenged in Federal District Court. The Federal Court has now overturned this constitutional amendment, determining the California Constitution in part is unconstitutional. This determination now faces challenge in the Ninth Circuit.
There is a war between the Constitution of this country and its judges, between the supreme law of this land and the judiciary - only one can survive. Either judicial immunity will destroy the People, or the People will prevail over judicial immunity - there can be no third alternative. The overriding problem in our country is not the Constitution, Congress or the lack of laws, but rather a self-made doctrine created by judges, and for the judges, and that is the doctrine of "Judicial Immunity," which establishes "Judges can do no wrong!" In other words, judges cannot be held accountable to their Oaths of Office, the Constitution, or the laws of this land, as they are immune from lawsuit!
This country cannot survive without subjecting of the Doctrine of "Judicial Immunity" to the findings of a People's Special Grand Jury created for that purpose. Well stated is the proverb, "No man is above the law!"
Ron Branson
National J.A.I.L. Commander-In-Chief
www .jail4judges.org
VictoryUSA @jail4judges.org
chris haynes| 8.15.10 @ 7:48PM
Come on. We are not in danger of tyrany. We live in it. 40 million legal abortions.
Denial of the equality of men. Denial of inalienable right to life.
It is enshrined in ouir constitution. If the peoplee try to stop it, say with a state law, they will be crushed by Federal power. It is confirmed by the majority party, and condoned by much of the minority party. There is no credible chance it can be changed, within our system.
No American is coerced to join the Army. To join it, you must swear alliegance to this constitution that enshrines mass murder. That makes you complicit in crimes against humanity. Any of the military people here care to comment?
Tim Clark| 8.16.10 @ 8:09PM
Actually, the real constitutional amendment we need is just this:
The people need to be given the right to over-rule the Supreme Court.
The Supreme Court is arrogant and currently anti-democratic. The people of America should amend the constitution so that we can over-rule one major Supreme Court ruling at each Presidential Election.
At least one ruling, maybe more, every four years. Maybe more, but the Supreme Court has almost single-handedly destroyed the pro-family culture that America used to have. We need to have the right to overturn Supreme Court rulings. That would end the tyranny of the left once and for all.
robert| 8.17.10 @ 8:57PM
Marriage is not and never has been a part of the constitution in anyway. So your amendment are putting something in the constitution, that the founders did not believe belonged in the constitution in any way shape or form. Not only that your amendment doesn't do anything all. All of this is already in DOMA and will not change the status quo in one single way.
But that is exactly why it is so clever. We have been doing this on a local level for the past 20 years. We can drum up peoples fears of gays, remind them of how we dont like to see them kiss in public, we dont want them to live in our neighborhoods, and we certainly dont want our family members that are gay well to even be alive. So we can start this parade against gay people, really rile up their hate against gay people and we can use the political capital that we gain by doing this to pass any sort of thing we want. Hell that is how Bush got his war in Iraq. I mean if we were to pursue a constitutional amendment on gay marriage, this could last 20 years. 20 years of drumming up hatred. We could put though who knows how many tax cuts for the richest americans and then dump the entire cost of the nation on the poorest mostly black americans! I mean this would be our opportunity to finally roll back the 14th amendment! Which is exactly where the whole nonsense that people should be treated equally came from. Then we could put back into place slavery! As long we blame all of our nations problems on gay people that mostly just work hard and do a good job and really dont bother anyone, we can do whatever we want! That would be awsome! Yeah lets do that.
REB| 8.17.10 @ 11:34PM
There are facts, there are truths and there are opinions,people seem to get them confused all the time!
Giving the fed gov any more say in anything is a big mistake...period!
Govt did not create marriage...God did...period!
Tyranny by the majority is never good,nor by a screwed up minority...period!
The idea that any person is entitled to do anything ...regardless...is retarded,perhaps youd like to give rights and equality to rapists and pedophiles,after all they are taxpaying people too,retarded!
Too many people live in a gooey vanilla world where anything goes,if it feels good do it, where nothing is black or white,nothing is pure or evil,everything is just relevant,however you feel about it and on and on,
NEWSFLASH! all men may well be created equal by God,meaning we all start out with the same potential on a clean slate,but most people make a mess out of life fairly quickly and go down hill from there,some prosper and most crash and burn,some build and create love and nurture and some pervert and destroy,and no they are not equal any longer...use a braincell,think! stop swimming around in the idiotic mindset that got obama elected,there is truth, there is right and wrong,good and evil,most of it has been well defined for thousands of years,its right there in front of your face,recognize it,deal with it and quit pushig phoney lies like gays can actually get married and become one,they produce nothing but confusion against nature,qiut treating them like some new ansd special thing that has to be protected anymore than any other fringe group!
Sigo| 8.18.10 @ 12:21PM
About Mr. Trapp's logical standing, I have run across this fantastic post:
http://thenonsequitur.com/?p=2145
About whatever it is he thinks he is pointing at as "traditional marriage," I offer this article:
http://archielevine.blogspot.c.....ition.html
Joanna | 6.6.11 @ 4:06AM
What an interesting article- I hope to read more like this, thanks!UTI Treatment
Adult toys | 7.4.11 @ 3:36AM
l like the space.support.
thank you.