[GCFL-discuss] Marriage

[gcfl-discuss at gcfl.net]

It has been awfully quiet this month. Dare I raise the subject of
defining marriage?

I believe the controversial ruling by the Supreme Court of Massachusetts
contained a simple, obvious, but apparently overlooked flaw. I also
believe inserting a definition of marriage into the federal constitution
is both dangerous and silly.

I believe there is a proper place for states rights -- although
preserving racial discrimination is not one of them. Actually, whether I
approve or not, the constitution IS a contract by the governed
authorizing the existence of a federal government, and it does reserve
all powers not explicitly delegated to the federal level, either to the
states or to the people.

Marriage has always been in state jurisdiction, not federal. Nothing in
the federal constitution delegates to either the executive or legislative
branch any jurisdiction to write laws pertaining to marriage. An
amendment would change that of course, but writing an amendment to
intrude federal authority into one narrow subject area that happens to
have created a lot of excitement is very dangerous. Marriage should
remain a state matter.

The decision of the Supreme Court of Massachusetts (which was a 4-3
decision, and may well be overturned by the legal processes of that state
in the next couple of years) is binding only in Massachusetts. Fears that
other states will be required to recognize any marriage licensed by
Massachusetts are very premature. In fact, a landmark Massachusetts
decision freeing a slave brought into the state by her owner's wife on a
visit from Louisiana provides an interesting precedent for NOT imposing
such a requirement. Without going into humongous length, if another state
has no such thing in its laws as marriage between two people of the same
gender, then that state has nothing to offer the parties "married" in
Massachusetts.

(The reasoning that freed the 14 year old slave: not because entering
Massachusetts triggered a process of emancipation, but because the laws
of Massachusetts did not recognize the status of slave, so that no
authority existed in the state to restrain her movements or keep her in
bondage, no matter what her status in Louisiana).

Which brings me to the flaw in the Massachusetts court decision.

The court applied "equal protection of the laws," which is certainly a
vital principle of American democracy. The court reasoned that it had
before it two classes of people, one denominated "heterosexuals" the
other denominated "homosexuals." Both classes of people, said the court,
desired the benefits of the status of marriage. No rational reason
existed to grant the status to one group, while denying it to the other.

Very logical, and like much logical reasoning, based on a flawed premise.
No homosexual plaintiff desired to marry a person of opposite gender. No
man who sought a license to marry a woman had been denied on the ground
that they were a homosexual -- which would have been unwarranted
discrimination. No woman who sought a license to marry a man had been
denied on the ground that she was a lesbian. In short, the plaintiffs did
not seek ACCESS to what other citizens enjoyed, they sought a NEW status
which only they would enjoy, and which did not exist.

(By the way, the court was very explicit that their ruling applied only
to civil acts of government. No church has an obligation to bless a
"marriage" that violates its own faith and doctrine. THAT is
constitutionally guaranteed too).

But the court was still wrong. Issuing a marriage license is an act of
overt approval on behalf of the happy couple's fellow citizens. If a
majority of the people of a state choose to adopt legislation recognizing
homosexual couples, they can. It doesn't seem like there is a majority
ready to do that right now. There is no constitutional right to approval
and respect.

At least 48 states seem to be moving in the opposite direction, which is
another reason not to play with the Constitution. State governments seem
quite competent to deal with the question. And at least seven members of
the U.S. Supreme Court are individually on record as saying that nothing
in their decisions would required any state to grant the status of
marriage to two people of the same gender -- there hasn't been a formal
decision because no case has even made it into federal court yet.

Siarlys


________________________________________________________________
The best thing to hit the Internet in years - Juno SpeedBand!
Surf the Web up to FIVE TIMES FASTER!
Only $14.95/ month - visit www.juno.com to sign up today!