In the Wall Street Journal, Prof. Robert George attacks the Massachusetts Supreme Court striking down prohibitions against homosexual marriages. I like and respect Prof. George, but I think that he's fighting a losing battle on this one.
From the article:
The ruling has major flaws. First, the judges invented a right of "same-sex marriage" found nowhere in the text, logic or historical understanding of the state constitution. In so doing, they usurped the authority of the people's elected representatives. Second, they ignored the philosophical and social reasons that have, for millennia, provided the "rational basis" for understanding marriage as the covenantal commitment of a man and a woman. Chief among these are the nature of marriage as a "one-flesh union" of sexually complementary spouses, and its value in ensuring that most children are reared with a biological mother and father bound to each other in a covenant shaped by moral obligations of fidelity and exclusivity.
On the first point regarding the invention of the new law, I was under the impression that the rights granted to citizens are unenumerated rights. The Constitution enumerates a limited number of powers for the federal gov't (*sigh* Am I the only one missing the era of enumerated federal powers?), while the remainder go to the state and people. So unless there is a law that prohibits a homosexual union, I don't see how the court has invented any such right. It was simply unenumerated. Now, if the state did enact a law prohibiting such unions, I then see a problem with that law on the basis of equal protection. If tradition defined marriage as a union of two Christian people, wouldn't the law face problems under equal protection when two atheists or Muslims decided to marry? Given the 14th amendment, this type of behavior seems to be what it was expressly designed to do. If we acknowledge that two gay people can fall in love and wish to live together, why is there such a problem allowing them to marry? If the basis of marriage is to form families and promote procreation, why would we allow sterile heterosexual couples, or couples who refuse to have children to marry?
With respect to a federal marriage amendment:
Is there any hope that an amendment could succeed?
Yes. The best evidence is that no serious Democratic presidential contender is willing to support "same-sex marriage." Messrs. Kerry, Lieberman, Gephardt, Clark, Edwards -- even Dean -- say they favor "civil unions," but oppose redefining marriage to include same-sex partners. They know that most Americans understand marriage as the union of a man and a woman and want this understanding preserved in their law. To do "whatever is necessary" to preserve it, President Bush will have to lead the fight for a federal marriage amendment.
On this point, I disagree with Prof. George completely. The fact that the Democratic candidates refuse to commit to same sex marriages is no indication that a federal marriage amendment could succeed. What is more likely is that the 2004 presidential election is going to be a close one and the Democratic candidates do not think that they cannot afford to alienate their core constituencies (The African American community in particular is quoted as being opposed to gay marriages -- ironic that they would oppose such things, no?) and lose the election. I will say that Prof. George is probably right in that a majority of Americans do not support gay marriages, but I don't think that there is a large committed majority that strongly opposes it also. And I think that the support for such a measure is far below the requirements of the Constitution.
Maybe this is the programmer in me, but I think that perhaps the best solution is to quit trying to make the gov't dictate the topology of family units. I realize that there are tax and other considerations involved, but I would take a look at simplifying our overly complicated and Byzantine tax codes before fretting about people abusing the tax system because two friends live together and are not a family and are cohabiting for a lesser tax bill. God knows that people and other groups abuse the tax system in much more egregious ways.
I deeply respect and admire Prof. George (God knows that I would be much worse off had I not had him as an instructor.), but I think that he's really reaching on this issue. But then again, that may just be the social libertarian side of me piping up...
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while i, too, love robbie, i get so annoyed at the marriage is a sacrament people. it's a contract. get over it. it's always been a contract. if not, why do people give dowry's and such? robbie's a hardline catholic married to a jewish woman. i really don't know where he gets off.
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