Latter Day Federalists
GALLAGHER, MAGGIE
Latter Day Federalists Why we need a national definition of marriage BY MAGGIE GALLAGHER I heard it on February 27, 2004, for the very first time: an argument on a major media outlet for...
...It doesn't really matter to me who marries who," said attorney Ron Kuby on ABC 770 talk radio...
...Government did not create marriage...
...Some Republican support for "leaving it to the states" stems from the mistaken view that a procedural issue is a better political issue than marriage itself...
...For example, in Zablocki v. Redhail, the Court ruled that it was unconstitutional for Wisconsin to require a man to be up to date in his child support before permitting him to remarry...
...They hope and intend for their vision of marriage to become the new norm...
...Advocates believe the same thing will happen with same-sex marriage...
...The good news is, the latest polls show 92 percent of Americans oppose polygamy...
...The reality is that there is going to be a national definition of marriage...
...The lengths to which Congress went strike us now as extreme...
...Public opposition to same-sex marriage is intensifying...
...We as a society have no right to discriminate in marriage," he declares...
...Is same-sex marriage an issue that can move votes...
...In Turner v. Safley, the Supreme Court ruled that a man who cannot fulfill any of the obligations of marriage (because he is incarcerated) still has the right to marry, state law to the contrary notwithstanding...
...This marriage norm is embedded in Jewish and Christian (not to mention Muslim and Hindu) thought...
...Rather than defend marriage, they propose a procedural fight...
...territory...
...The courts may decide to punish the teaching of the old norm as a human rights violation...
...Maggie Gallagher is president of the Institute for Marriage and Public Policy (www.marriagedebate.com...
...Yet even in a safe Democratic district in an overwhelmingly liberal state, the race was close, and voters crossed party lines to elect the Republican...
...Americans favored a federal marriage amendment by 59 percent to 35 percent...
...If favoring the traditional understanding of marriage is analogous to favoring racism, then churches, faith-based organizations, and schools that continue to teach that marriage is exclusively the union of a man and a woman will eventually face penalties in the public square...
...On March 3, 2004, the same day that Yale law school's Lea Brilmayer testified before the U.S...
...Leaving it to the states lends public endorsement to the idea that the fragmentation of our marriage culture is no problem at all...
...Sex, love, and intimacy are private things...
...The California attorney general declined to defend the constitutionality of a state law defining marriage as the union of a man and a woman, merely referring the matter to the court for an opinion...
...Drawing in part on federalist and libertarian principles, they sally forth crying, "Leave it to the states...
...And here the analogy to Loving V. Virginia holds no comfort...
...Constitution that would allow marriage only between a man and a woman...
...Courts that have discovered a right to same-sex marriage in general commitments to due process or equal protection are no doubt capable of discovering that "the people" have a right to same-sex marriage...
...In postGoodridge America, people will be viewed and treated as married in some states (or counties, or small suburban hamlets) but not in others...
...A person who marries undergoes a change in status that others must acknowledge...
...Today, to ensure a national definition of marriage requires a constitutional amendment...
...The question for Congress is whether it will be the novel definition now being foisted upon us by the courts, or the one affirmed by the vast majority of the American people...
...How long is it before some Islamic leader gets the message that America is not serious about enforcing its marriage norms...
...It is also embedded in human biology—not just the facts of reproduction, but the hard-wired realities of gender difference that marriage is designed to help bridge...
...It suggests that marriage is just one of many values issues about which states can disagree without affecting any truly national interest...
...By the end of February, support had grown and opposition had dropped...
...It will further the process of persuading Americans that we don't need a shared marriage culture...
...Like it or not, the only reason monogamous marriage remains the law of the land in America is active federal intervention to protect the national definition of marriage...
...If the marriages of same-sex couples are to be publicly acknowledged as the full equivalent of marriages uniting husband and wife, everyone's ideas about marriage will have to change...
...If courts are determined to eliminate any difference in the legal treatment of unisex and opposite-sex couples, those same courts will have to take an increasingly activist role in enforcing the new marriage norms they are now unilaterally creating...
...A norm guides and shapes individual behavior, to produce a common good...
...It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right...
...It reads: "Civil marriage in each state shall be defined by the legislature or the people thereof...
...In 1874, responding to the difficulty of getting convictions in regions where people supported polygamy, Congress passed the Poland Act, transferring plural marriage cases from Mormon-controlled probate courts to the federal system...
...Why is monogamy both the legal and social norm in America...
...In a series of decisions in the 1970s and '80s, the Supreme Court made marriage a federal issue, striking down many state laws regulating marriage and divorce...
...But suppose the courts pull back...
...By 1887, half the prison population in Utah territory were people charged with polygamy...
...After a period of initial opposition, a reeducated public will come to embrace this new vision of marriage...
...That's why the advocates of single-sex marriage won't settle for civil unions...
...But, as a group of five legal scholars recently noted in an opinion for the Massachusetts Catholic Conference, if the courts actually equate laws defining marriage as the union of husband and wife with laws barring interracial marriage, then single-sex marriage statutes seriously threaten the ability of organizations adhering to traditional marriage to hold broadcasting licenses, have their colleges accredited by public bodies, or secure tax-exempt status for their schools and charities...
...The Massachusetts court that decided the Goodridge case last November, of course, has already held that the traditional view of marriage is irrational and therefore must be based on animus...
...Constitution, older than Locke, older than the Christian church...
...This commonly repeated cliche is simply untrue...
...What will happen if we fail to affirm a national definition of marriage...
...But there is nothing radical or unprecedented about the idea of a national definition of marriage...
...Under that law, no married person could "marry any other person, whether single or married, in a Territory of the United States," under penalty of a $500 fine or five years in prison...
...It is older than the U.S...
...Every small town or county can decide for itself what marriage means, with no damage to anything important in our common culture...
...They were about racism, not marriage...
...Since government depends on religion as well as culture to help sustain the norms that make marriage an effective social institution, a widening gap between "religious marriage" and "civil marriage" is itself a destructive development...
...State defense-of-marriage laws are already being invalidated by public officials confident the courts will approve...
...More fundamentally, "leaving it to the states" will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it—about preferring husbands and wives who can become fathers and mothers...
...But opinion polls are one thing, votes are another...
...Or bisexual women who would like to share a husband...
...Respondents favored a federal marriage amendment by 55 percent to 40 percent...
...On March 7, the mayor of Seattle announced that his city would begin recognizing same-sex marriages performed elsewhere, even though Washington is one of 38 states with a defense-of-marriage law defining marriage as the union of a man and a woman...
...This is a good thing, say the same-sex-marriage advocates, who take great comfort from the analogy to interracial marriage...
...The result will still be a quite devastating fragmentation of our marriage culture...
...You can't deny millions of people rights because you are afraid other people might demand their rights too...
...Suppose they develop a surprising new tolerance for traditional views...
...But as the nationwide push for gay marriage becomes unavoidably obvious, Americans' support for a federal marriage amendment that defines marriage as the union of a man and a woman is growing fast...
...And in states that adopt same-sex marriage as a civil right, it won't protect Christian and other traditional religious organizations from persecution in the public square if they teach the sanctity of marriage...
...By 1890, the Church of the Latter Day Saints threw in the towel, advising its members "to refrain from contracting any marriages forbidden by the law of the land...
...In 1862, Congress passed the Morrill Act criminalizing bigamy...
...And the gap between religious marriage and civil marriage will widen to a chasm...
...Yes, the First Amendment will protect their right to sit in a corner and preach what they like...
...Marriage is a pre-liberal institution, a hybrid that fits uncomfortably inside our existing intellectual frameworks...
...For one reason only: Between 1862 and 1887, Congress repeatedly passed laws designed to stamp out polygamy in U.S...
...In San Francisco, Nyack, Portland, Asbury Park, Seattle, and New Paltz, mayors are claiming a unilateral right to redefine marriage...
...Leaving the matter to the states amounts to conceding that marriage is not a key social institution...
...Of the Democrats polled, 55 percent supported a federal marriage amendment...
...Cheryl Jacques was vacating her seat to become president and executive director of the Human Rights Campaign, a lobby for lesbian, gay, bisexual, and transgender equal rights...
...Moreover, the question whether the basic legal definition of marriage is a national issue or a states' rights issue was tackled once before and settled, in the 19th century...
...Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman...
...In 1882, Congress passed the Edmunds Act, which vacated the government in the Utah territory, created a five-man commission to oversee elections, and forbade any polygamist, past or present, to vote...
...Marriage is a public act...
...This ancient and powerful conception of marriage, grounded equally in faith and reason, won't just fade away...
...Jason West, the 26-year-old mayor of New Paltz, says he has a "moral obligation" to marry same-sex couples...
...Senate that states would never be required to recognize marriages performed in other jurisdictions, New York attorney general Eliot Spitzer issued a legal opinion exactly to the contrary: that New York law "presumptively requires" recognizing same-sex marriages and civil unions performed elsewhere...
...As Bob Herbert wrote in the N^^ Yo-rk Times, "Those of you who are already married, tell the truth: [Gay marriage] won't make your marriage any weaker, will it...
...A state has no right to require a person to live up to his marital obligations before taking on new ones...
...Thus, Senator Orrin Hatch has proposed a constitutional amendment that is said to be fast gaining ground among GOP senators...
...They were about keeping the races separate so that one race could oppress the other...
...On its face, the Hatch language appears to overturn the federal Defense of Marriage Act, which defines marriage as the union of a man and woman for the purposes of federal law...
...The fragmenting of America's marriage culture is going on before our eyes, even as the most stubbornly blind advocates of single-sex marriage continue to insist gay marriage poses no threat...
...There are many problems with this language...
...Leaving the definition of marriage to the states will amount to a repudiation of Congress's judgment in the 19th century that polygamous marriage is unacceptable in our national, common culture...
...In the late 19th century, of course, Congress could count on the Supreme Court to uphold its authority...
...An individual right is a license for each individual to decide for himself what good to seek...
...More important, they had nothing to do with the public purposes of marriage...
...The courts may decide, say, that to promote the traditional definition of marriage is to engage in discrimination against people who choose alternative family forms...
...But without decisive federal intervention, America today would have polygamy in some states and not in others...
...There is, however, something wrong with leaving marriage to the states...
...Does a national definition of marriage violate the principles of federalism...
...Writing in the Atlantic Monthly, Jonathan Rauch makes the case for leaving the issue to the states: "Remember, all precedent leaves marriage to the states...
...That year, Congress passed the Edmunds-Tucker Act, which, partly to facilitate polygamy convictions, allowed wives to testify against husbands in court...
...The bad news is, the pollsters are asking the question...
...The very ideas that are being used to promote single-sex marriage are a dagger pointed at the heart of the marriage culture...
...A special election for state senator in Massachusetts on March 2 holds a clue...
...One cannot call such a social institution into being merely by passing laws...
...A decade later, under the tutelage of the courts, public opinion had changed dramatically...
...Latter Day Federalists Why we need a national definition of marriage BY MAGGIE GALLAGHER I heard it on February 27, 2004, for the very first time: an argument on a major media outlet for polygamy...
...Jacques wanted a trusted lieutenant to take over her seat...
...If marriage is an individual civil right, it cannot be a social norm...
...By contrast, the great, cross-cultural and historic idea of marriage—the bringing together of a man and a woman, in the hope that they might raise the next generation together, and in the secure knowledge that every such couple can give any children they create or adopt a mother and a father—is as old as humanity itself...
...And yet, in the midst of the utter fragmentation of our marriage culture, a growing number of Republican political leaders appear poised to abandon altogether the idea of a common marriage culture...
...Marriage, these people are saying, is not a public, social norm, it is an individual civil right, a benefit-dispensing mechanism...
...But laws against interracial marriage had no deep roots in religious thought...
...How can an individual right to marriage exclude Muslims who want more than one wife...
...In December, CBS News asked Americans the question: "Would you favor or oppose an amendment to the U.S...
...In 1967, when the Supreme Court unanimously overturned laws barring miscegenation in Loving v. Virginia,, a majority of Americans supported those laws...
Vol. 9 • March 2004 • No. 28
