Why We Need a Constitutional Amendment to Protect Traditional Marriage

          by Diane Rufino

Years ago, and indeed, the whole of history, will show that marriage has always been intended to bind a man and woman together in a special union for the purpose of procreating and raising children.  It was not until 2001 that countries have begun allowing same-sex marriage. And the historical tradition makes sense.

In the Bible we learn the roots of marriage. In Genesis 2:7 we learn: “The Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.” In verse 18, God said: “It is not good that the man should be alone; I will make him a helper.”  And so we learn, in verses 21-22 that “the Lord God caused a deep sleep to fall upon Adam, and as he slept, he took one of his ribs, and closed up the flesh.  And the rib He had taken from man, made he a woman, and brought her unto him.”

In 1 Corinthians 11:8-10, the Bible teaches “For man does not originate from woman, but woman from man; for indeed man was not created for the woman’s sake, but woman for the man’s sake. Therefore the woman ought to hold a special place… “

Genesis 2:23-24 reads: “Adam said, ‘This is now bone of my bones and flesh of my flesh; she shall be called woman, for she was taken out of man.’ For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.”

The “helper” that God created for Man was a woman and not another man. It was woman that was intended to complement Man, not another man. The word “helper” that was used in the Bible to describe Eve means “to surround, to protect or aid, help.” Eve was created to be alongside Adam as his “other half,” to be his aid and his helper. A man and woman, when married, become “one flesh.” This oneness is manifested most fully in the physical union of sexual intimacy and then the mixing of a half complement of DNA from the father and a half complement of DNA from the mother to form “one complete” genetic offspring.  A child.

The New Testament adds a warning regarding this oneness. “So they are no longer two, but one. Therefore what God has joined together, let man not separate.” (Matthew 19:6).  It is from these Biblical roots that marriage has become so strong a union and one that society is cautioned to protect.

Even more fundamental are the scientific and biological laws that underlie the purpose and uniformity of life and existence here on Earth.  Scientific laws are essential to life because only then can actions and natural events be explained and even predicted.  Predictable scientific laws are the basis for free will. Biology teaches that all species are guided by certain biological imperatives, which are the requirements absolutely necessary to perpetuate their existence and their species. This is the core principle explaining Darwinian evolution.

In order for a species to persist, it must, by definition, reproduce to ensure the continuation of their species. Without reproduction the species ceases to exist. The capacity for reproduction and the drive to do so are  universal among living organisms, and as we know, they are expressed in a multitude of ways by the spectrum of living organisms. The urge to procreate is an involuntary and unconscious biological drive which first emerged as an inherent property of living cells and is echoed in the upper levels of organization of multi-cellular organisms. Self-preservation and reproduction are the strongest of biological imperatives. And it is for that purpose that we protect marriage as an institution and pay so much attention to the family structure and gender interactions. There is clearly a productive gender interaction and a counterproductive gender interaction. The former serves the interests of the laws of nature and the latter frustrates them. Left alone, without any cooperation from heterosexual unions, homosexuality would be an evolutionary cul-de-sac.

Understanding that homosexuals love the children that they raise together (but not conceived from their union) and want the best for them, their conduct is not of a natural design and their interaction as a “married couple” cannot satisfactorily stand in the place of a proper heterosexual married couple. Gender interactions, gender roles, gender inclinations, tendencies, proclivities, etc are all the crucial “unspoken” lessons that children need to learn to take their place in an ordered society.  Each parent, wired biologically and genetically through their gender, offers his/her child something unique and teaches something invaluably which guides that child through childhood, adolescence, and into adulthood so he/she can follow in the same natural footsteps.  Children in a non-traditional household (same-sex parents) are programmed differently and suffer psychological confusion that may or may not manifest itself later in life.  Physicians, scientists, and psychologists all understand that the mental and psychological development of a child is fragile and even as an adolescent, proper processing by the brain is often not possible because development of the brain and its connections are not complete.  Any biological programming which could serve to compromise the integrity of the species, its effectiveness to procreate, and its survival runs afoul of the laws of nature.  Eroding the blessed institution of marriage, protected for the purpose of procreation and the proper raising of children, and allowing and erasing gender requirements by its nature is against the normal and natural evolution of a species and its continuance of life.

There is no fundamental right to marriage.  It is not included in the Constitution’s Bill of Rights for a reason…  It was not considered one of those basic rights that would prohibit government regulation.  Judge N. Randy Smith, of the notoriously liberal Ninth Circuit Court of Appeals (in San Francisco), was correct in his dissenting opinion of the Prop 8 appeal: “The family structure of two committed biological parents – one man and one woman – is the optimal partnership for raising children.” He also said that governments have a legitimate interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples” because only they can have children. He urged judicial restraint, that the justices should refrain from striking down Proposition 8.  [pg. 195]

[What was Proposition 8?  Proposition 8 – titled “Constitutional Amendment Initiative: Eliminates Rights of Same-Sex Couples to Marry” on the California voter ballot and called the “California Marriage Protection Act” by proponents – was a ballot proposition and constitutional amendment passed in the November 2008 state election. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provided that “only marriage between a man and a woman is valid or recognized in California.”  By restricting the recognition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court’s ruling of In re Marriage Cases which held that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, a statute which had passed in California in 2000.  But, as an ordinary statute, it was easily invalidated by the State Supreme Court in 2008].

Biblical and biological emphasis aside, I believe the Marriage Amendment as drafted in North Carolina for the primary vote on May 8th should not prohibit all legal unions between same-sex couples where legitimate contractual and property rights are involved, but only those  that involve the raising of children.  If two homosexual men or two women want to live together in a “committed type of relationship” and want enter into a contract for the purpose of protecting property rights (such as insurance, etc), then there should be laws to protect those contracts – just as it would protect other contracts.  Opponents of the NC Marriage Amendment are correct that contract rights are a fundamental right and ones very much on the minds of our Founding Fathers.  But the spirit of the Marriage Amendment is to define the institution of marriage as that between a man and a woman and to ensure that only such a union is acceptable for to bringing forth children and raising them so that there is a proper vehicle to instill historically moral and biological (gender) values.

It is unfortunate that the gay and lesbian agenda requires the erosion of such a fundamentally important institution and requires courts to get involved in a matter that was intended to be beyond the reach of judges.  We all heard of the old saying that when groups are unsuccessful in getting favorable legislation the legitimate way, they take their chances with liberal judges… and often win.  That is a sad state of affairs, especially considering that the strength of our nation rests on the fact that it is a constitutional republic… a nation of laws and not of men. For those who don’t or can’t appreciate the harm in getting the courts involved in the definition of marriage, check out the article written by Dr. Earl Taylor, current president of the National Center of Constitutional Studies, in April 2004 in which he discusses the topic of marriage and the US Constitution.  In his article, he asks the question – With the deplorable state of the wickedness and depravity which surrounds us now, should the Constitution be amended to define the institution of marriage?  He looked to renowned law professor Richard Wilkins for advice. Wilkins writes that years ago he would have suggested to leave the Constitution alone.  But, he notes, these are troubling times and now urges people to push for a constitutional definition of marriage.  He is quite serious when he states “Unless the people clearly establish the constitutional meaning of marriage, the judges will do it for us – and, in the process, erode the very idea of a written Constitution, expand judicial power and upset the vital balance of power established by the Framers of the United States Constitution.”

Richard Wilkins – law professor, former Assistant to the Solicitor General of the United States, and the founder and managing director of Defend Marriage (a project of United Families International) – explained why a constitutional amendment might be necessary:

“Ten years ago, I would have explained that amending the Constitution to define marriage is clearly wrong – for at least three important reasons.  First, the Constitution says nothing about marriage. Second, marriage is a question the Constitution wisely leaves to the people within their respective states.  Third, and finally, the last thing America needs is more powerful federal courts.  Why tempt the judges by inserting a new topic into the Constitution?  But that was then and this is now. Now, when I hear devotees of the Constitution repeat arguments that are almost a part of my DNA, I shake my head in disbelief.  The very concerns that, ten years ago, would have prompted my opposition to a marriage amendment now compel my support.

The Constitution says nothing about marriage.  But judges have.  (Likewise, the Constitution says nothing about abortion, but that hasn’t stopped judges from manufacturing a reference). Federal courts have managed to intrude in areas where the Constitution gives them no license to tread.”

It clearly appears that the Constitution was written to leave questions like marriage to the States.  Any constitutional scholar can attest to that.  Yet an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic and to bear true faith and allegiance to the same” has not been enough to prevent judges from giving us an entirely new Constitution.  In its decision in Lawrence v. Texas (2003), the Supreme Court, for the first time in history, announced that the Constitution prohibits state legislatures from treating homosexuality any differently than heterosexuality. Specifically, the Court said that challengers, Lawrence and Garner (homosexual lovers) were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause.  Justices William Rehnquist, Antonin Scalia, and Clarence Thomas opposed the decision.  But the majority did something extraordinary in that case; it did something it historically refrains from doing.  It reversed its earlier decision in Bowers v. Hardwick (1986), which held that the Constitution confers no fundamental right for homosexuals to engage in consensual sodomy.

Professor Wilkins asks: “What does this decision and this new Constitution do to marriage?”  He points to the state of Massachusetts as a perfect example.  He said: “The Massachusetts Supreme Judicial Court answered that question.  Relying on the  high Court’s decision in Lawrence , the Massachusetts court has allowed same-sex marriage. It merely relied on the reasoning of the US Supreme Court in that decision to interpret its own state constitution.”  The Mayor of San Francisco, Gavin Newsom, in unilaterally issuing marriage licenses contrary to controlling California law, likewise relied upon the reasoning of Lawrence to defend the legality of his actions.

Our Constitution, which once said nothing about marriage, now appears to says a lot about marriage.  (Just interview the mayor of San Francisco.  Why did he issue marriage licenses not authorized by California law?  ‘The Constitution demands it,’ he said.)  Wilkins asserts: “The last thing America needs is more powerful federal courts.”

Marriage is a question the Constitution wisely leaves to the people to decide in their respective states. And again the judges have taken that power away.  As Professor Wilkins wrote: “Whatever the Constitution once provided has changed.  All rules related to marriage have now been subsumed by a ‘constitutional analysis’ previously unknown to the law. State legislatures, and the people they represent, no longer control the meaning of marriage or the hundreds and thousands of legal rules associated with marriage. All such questions, henceforth, will be governed by decisions of state and federal courts. And, in light of the expansive ‘constitutional analysis’ adopted in Lawrence, those decisions will be guided neither by the words of the Constitution nor the traditions, history and actual practices of the American people.”

Wilkins went on to write: “In light of the foregoing, anyone concerned about preserving the structure and content of the American Constitution should understand why the words ‘marriage’ and ‘constitutional amendment’ need to be linked, to save the social viability of marriage, and integrity of the Constitution itself.”

The United States Supreme Court has demonstrated that it is capable of transcending not only the wording of the Constitution but the history, traditions and actual practices of the American people.  Even though the Constitution says nothing about ‘sexual liberty;’ even though the history, traditions and actual practices of the American people do not support an unrestrained ‘right’ for consenting adults to engage in any kind of sex they want; the Court has created this very right out of thin air.  Lawrence created this ‘right,’ not by relying upon the wording of the Constitution or the traditions and practices of American society, but by invoking (and I am not making this up) the ‘meaning of life’ and ‘mysteries of the universe.’

The judges are now so powerful that they feel free to invent the Constitution as they move along.  (If the definition of marriage – an understanding as old as time – violates constitutional strictures, one wonders what centuries’ old legal notions the “mysteries of the universe” will invalidate next.)  In light of these astonishing developments, it is absolutely clear why so many people are putting the words ‘marriage’ and ‘constitution’ in the same sentence.  An amendment is necessary to preserve not only the social viability of marriage, but the political integrity of the Constitution.”

But the Constitution provides for limited jurisdiction of the federal courts. In fact, the U. S. Constitution states:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (Article 3.2.2, emphasis added)

Some Constitutional devotees have relied on this clause to indicate all Congress has to do is pass a law limiting the jurisdiction of the federal courts. But this is not what it says. As Dr. Skousen, author of such books as The 5000 Year Leap, The Making of America, and The Naked Communist, explains: “This provision was not designed to give Congress the power to limit the jurisdiction of the federal courts, but simply to make decisions on many topics conclusive after a hearing in the lower courts. It was the purpose of the Founders to protect the Supreme Court from being submerged by a mountain of trivial cases when it should be concentrating its attention on matters of national importance.” ( The Making of America, p. 612. See quotes from the Founders on pages 612-613 to support this position)

Even if Congress were to pass a law limiting the kinds of cases which could be appealed to the Supreme Court, it may have the opposite effect. Imagine not being able to appeal sensitive cases to the Supreme Court. That would make the lower court decisions final. The lower courts have been just as active in destroying the Constitution as the Supreme Court has been, and there are so many more of them!  (Examples include abortion, flag burning, homosexuality, and pornography cases).

A much better solution is to begin to limit the jurisdiction of the federal courts to the eleven kinds of cases outlined in Article III of the Constitution. However, this still would not undo the damage of past cases.

And so Professor Richard Wilkins believes the only course left is for the good people of the United States to amend the Constitution to define the institution of marriage according to traditional values.  He believes that the traditional family is the vehicle of the decent, moral, and productive values of a free society.  He believes that if this vehicle is destroyed – if the family is destroyed – then we will see increased anarchy and eventually the country will be ripe for revolution or submission to government indoctrination.  (In fact, he believes that there are forces out to destroy the traditional family for this very reason).  He explains why the time is ripe for a constitutional amendment:

“1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.

As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by ‘a written constitution’ and ‘the framers of the constitution contemplated that instrument as a rule for the government of courts , as well as of the legislature.’  (Emphasis by Justice Marshall.)  Because the Constitution binds the courts as well as any other branch of government, judges should adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people.  Any other course, as Chief Justice Marshall noted in Marbury , ‘would subvert the very foundation of all written constitutions.’

Modern courts have dangerously ignored the teachings of Marbury. The ‘new Constitution,’ announced by the Supreme Court in Lawrence, frees judges from any need to tie their decisions to either the words of the Constitution or the traditions, history and actual practices of the American people.  Many people applaud the idea of a ‘living Constitution;’ a document that transcends words, definitions and the restrictive bonds of history and tradition.  But a document as fluid, unfettered and free as the ‘new Constitution’ unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has demanded that the people (and not the courts) resolve society’s controversial moral and social debates.

Under the ‘new Constitution’ announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court – rather than a legislature – will settle the matter.  Why?  Because (according to the judges, the law professors and other elites) the ‘meaning of life’ and the ‘mysteries of the universe’ become more and more important as social debates become more and more divisive, difficult and debatable.

Of course, this is not the Constitution the Framers intended.  It is not what the written text demands.  But it is what the courts have now decreed.  We need an amendment on marriage, not only to protect marriage, but to demonstrate to the courts that they exceeded their power in constitutionalizing marriage in the first place.

Modern courts feel free to ignore or alter constitutional text at will.  A constitutional amendment on marriage, by forcefully rejecting the judges’ latest excursion from constitutional text and history, will forcibly (and quite properly) remind the judges that their role is to adjudicate, not legislate.  A constitutional amendment is necessary to revive the idea which provides ‘the very foundation of all written constitutions;’ that is, that the Constitution is ‘a rule for the government of courts , as well as of the legislature.’  Marbury v. Madison (emphasis in original).

2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.

Under the ‘new Constitution’ drafted by the Supreme Court in Lawrence, state legislatures may not ‘demean’ the sexual practices of ‘consenting adults’ that are closely connected to individual views regarding ‘the meaning of life’ and ‘mysteries of the universe.’  (For those of you who either aren’t familiar with legal lingo or simply like people to write clearly: legislatures may not suggest that there are any differences between heterosexuality and homosexuality.)  To reach this result, of course, the Supreme Court had to ignore the words of the Constitution and the history and traditions of the American people.  In their place, the Justices have given us a poem – a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.

This departure from text, history and tradition is a serious matter.  It dramatically upsets the proper balance of power between the judiciary and the representative branches of government. If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act.  But the Founders intended the judicial role to be exceptional and rarely invoked.  Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the ‘least dangerous branch’ because it does not create policy but merely exercises ‘judgment.’  The really difficult questions, Hamilton and the other Founders thought, would be left to the people.

Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can’t be controlled) by the precise language of the Constitution.  If the ‘correct’ answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action.

The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution.   By inventing and enforcing ‘rights’ nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the people’s popular control over an ever-expanding range of fairly debatable controversies.

The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts.  But, because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance.  Without a constitutional amendment, the Supreme Court – and not the people – ultimately will determine what marriage means.  With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes.

The question is: What does the Constitution demand?  I fully understand the concerns of those who assert that, since the Constitution has never addressed marriage before, it should not be amended to address marriage now. But whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is in the Constitution.  The Founders did not do it.  But the courts have.

By placing marriage in the Constitution, the judges have taken marriage out of the hands of the people.  The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.  It is now up to the people, by constitutional amendment, to remedy these errors. A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order.”

Steve Farrell writes: “We can’t turn over the fate of the family to nine folks in robes. Judicial tyranny is not for you and not for me. It’s time to reign these judges in, and remind them that constitutions are set up to preserve the values of a society, not overthrow them.”

 

References:

Richard Wilkins, Marriage and the Constitution: Why We Need an Amendment

Earl Taylor Jr, “Marriage and the Constitution”, NCCS, April 2004.  Referenced at:  http://www.nccs.net/newsletter/apr04nl.html

W. Cleon Skousen, The Making of America, 1985; The National Center for Constitutional Studies.

Steve Farrell, “Marriage and the Constitution: Time for an Amendment?,” Newsmax, March 3, 2004.  Referenced at:  http://archive.newsmax.com/archives/articles/2004/3/3/134302.shtml

Steve Farrell, “Marriage and the Constitution: Time for an Amendment?,” Federal Observer, April 29, 2012.  Referenced at:  http://www.federalobserver.com/archive.php?aid=7369

“California Proposition 8,” Wikipedia.  Referenced at:  http://en.wikipedia.org/wiki/California_Proposition_8

Diane Rufino, “Perry v. Schwartzenegger: California Becomes the Latest Battleground for Gay Marriage Rights,” August 2010.  Referenced at:  http://forloveofgodandcountry.wordpress.com

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About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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