Rightank

Did you know that the Americans United for the Separation of Church and State’s (”AU”), in addition to their misguided and historically inaccurate interpretation of the Religion Clauses, are strong opponents of the Federal Marriage Amendment. Did you also know that they support same-sex marriage?

Here’s AU’s position on Marriage & Family Life:

Opponents of church-state separation, led by the Religious Right, extol the “traditional” family of a married couple with children. While many American families fit this mold, others do not. All loving families, regardless of their composition, deserve support from government and society. The government must not deny adoption, child custody and other fundamental rights to families labeled “non-traditional” because of religious bias or narrow interpretations of holy books held by certain religious believers. The government must also recognize that while many couples choose to be married in a house of worship, marriage itself is ultimately a civil institution; access to it should not be defined or limited because of religious strictures.

A crusade is under way to add a “marriage amendment” to the U.S. Constitution. The purpose of the drive is ostensibly to bar the federal and state governments from recognizing marriages between gay couples, although the amendment also would eradicate hundreds of legal rights that gay and lesbian families currently enjoy under a number of state and local laws. Americans United believes that the campaign to place a marriage amendment in the Constitution raises important church-state and religious liberty concerns.

The crux of AU’s position is that because marriage is a civil institution, in essence a government created model of family organization, then that structure (1) can be changed to include “non-traditional” families and (2) any attempt to limit marriage to one man and one woman is the result of religious conservatives’ attempt to change marriage away from civil-centered to a religious-centered institution and that infusion of religion violates the First Amendment. In AU’s view, marriage is about love and that any loving couple deserves government support (i.e., homosexual relationships should receive the same benefits as heterosexual couples).

But, marriage is more than love. Certainly, love brings the happy couple together but love is not the basis of government support of marriage. Traditional marriage is supported by the government because of its benefit to society at-large. A tradtional heterosexual union provides the optimal rearing environment for children and creates stability in societal structure, among other benefits. Same-sex couples are incapable of providing these benefits. Moreover, these benefits are not inherently religious.

A nation’s laws reflect the morality of its citizens. That morality, whether based upon the religiousity or conscience of its citizenry, deserves respect even if its impact is to deprive a small but politically-active group (here gays and lesbians) the “right” to marry. Taken to the extreme, by questioning any law whose basis could be found within the antiquated tomes of the “Religious Right,” many of our laws (murder comes to mind) are a form of government-sponsored religion and are unconstitutional.

That’s exactly what AU would like to see happen–a disappearance of public religion. Not only from the law, but from courthouses, city halls, and schools. Supporting gay marriage is merely a convenient tool for their irreligious purposes.

Yesterday, the California legislature passed a law extending marriage rights to gays and lesbians. Trumpeted as a rights’ cause akin to slavery or women’s suffrage, same-sex marriage proponents could not be happier.

Some bloggers have noted the chasm between the two dominant parties (Democrats and Republicans) on the piece of legislation. No Republican supported the legislation and four Democrats voted against corrupting California’s marriage laws. Only Democrats supported the legislation.

Also, as Eugene Volokh notes, the law is unconstitutional in that it explicitly contradicts the California Constitution. In 2000, 60% of Californians voted for Proposition 22, which defines marriage as follows:

Only marriage between a man and a woman is valid or recognized in California.

That definition–which upholds traditional marriage and explicitly excludes any type of extra-hetrosexual marriage relationship–cannot be modified by an act of the legislature. The only body that stands in the people’s way is the California Supreme Court, which in time will hear a challenge to California’s Defense of Marriage Act.

An grass-roots organization, Campaign for Children and Families, is attempting to get a Marriage Amendment in the California ballot in 2006. This would pre-empt or supersede any activist action by the California Supreme Court to impose same-sex marriage on the Californian populace.

It will be interesting to see what course of action Governor Schwarzenegger will take. If he vetoes the law, he will make the conservatives happy within the Republican and Democratic parties and perhaps elevate his national status within the Republican Party. Even if this is his course of action (which it will likely be), his veto will not be one of principle, as Schwarzenegger does not oppose same-sex marriage. If he signs the law, he will lose any hope of becoming POTUS (assuming the unlikely possibility a constitutional amendment is passed that allows him to run). Social conservatives comprise the bulk of the Republican Party and the bulk of those who get out and vote. We (I am a social conservative) would never forget his veto to destroy marriage.

What about same-sex marriage proponents who say Wow! this is the first time a state legislature has actually voted to legalize same-sex marriage. My answer: Not quite true. What the California Assembly did was become the first state legislature to pass an unconstitutional law that attempts to legalize same-sex marriage. Now that’s a feat worth celebrating.

Update 9:53 P.M. EST: Looks like Gov. Schwarzenegger will veto the legislation “out of respect for the will of the people.” How nice of him.

In a recently published law journal article, Professor Lynn Wardle persuasively argues why a Federal Marriage Amendment is a needed addition to our Constitution. The whole issue of the journal–The Federal Marriage Amendment: Yes or No?–is worth reading, containing some of the latest scholarly thought on the issue of same-sex marriage.

Some supporters of same-sex marriage buttress their arguments for societial radicialism on the First Amendment Religion Clauses. Particularly, they assert that traditional marriage is a qualified endorsement of Christian faith–that marriage is the conjugal joining of one man and one woman. Thus, when the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” it prohibits the establishment of a Christian marriage as a federalized norm. Similarly but distinctly, “Congress shall make no law . . . prohibiting the free exercise [of religion]” means that heterosexual marriage cannot be promoted or sustained financially or otherwise by the federal government because that runs contrary to the relgiousity of other Americans who believe in different forms of marriage that offend, interfere, or inhibit their own religious expression and belief.

Would same-sex advocates be so anxious to use the First Amendment to eradicate marriage if traditional marriage where part of that Amendment? Professor Wardle makes the following observation:

In 1987 marriage was not threatened or abused by government, so it is not surprising that the Constitution and the Bill of Rights make no reference to marriage. Those documents protect the vulnerable valued institutions and rights that were threatened and which had been abused by the states and the British government in recent history–press, speech, religion, assembly, jury trial, quartering troops, etc. Today there is little threat of forcible troops in our homes, but the institution of conjugal marriage is threatened. It makes as much sense to adopt marriage protection today as it did in 1787 to adopt constitutional protection for speech, private residences, jury trials, etc.

. . .

If James Madison, Thomas Jefferson, George Mason, and Alexander Hamilton were alive today, we could expect to see them leading the movement to adopt constitutional protection for the institution of conjugal marriage.

Wardle’s historical instinct seems correct. If marriage were threatened during the Founding as it is right now, then the First Amendment (or at least the Bill of Rights) would contain a provision explicitly defining marriage as the union between one man and one woman. Moreover, most (if not all) the Framers would be advocating on behalf of preserving traditional marriage.

The battle to preserve traditional marriage is NOW. It’s not in five years or ten years. Wardle warns:

The choice is clear–either in the next dozen years there will be a constitutional rule protecting the institution of conjugal marriage, or there will be a constitutional rule forcing all states to create or to recognize–and effectively leading to the domestic approval of–same-sex marriages.

The radical elites who desire to thrust same-sex marriage on the entire populace are not waiting for societal approbation. In the end, failure to enact a Federal Marriage Amendment will spell the end of traditional marriage. The ACLU and other gay advocacy groups know it . . . and so should you.

Justice O’Connor’s retirement (and possibly Rehnquist’s and Steven’s as well!) present a historic opportunity to halt the social and internationalist judicial activism that froths from the court’s current opinion-making.

My beef with Justice O’Connor judical contributions is three-fold: the unconstitutional prolongment of affirmative action policies on the college admissions process; the development of the endorsement test in Establishment Clause cases; the radicalization of social policy, particularly homosexual “rights.” Two of these judicial qualities are recent incarnations, while one (the endorsement test) was O’Connor’s position over the last two decades.

In Grutter v. Bolinger (2003), Justice O’Connor’s majority opinion upheld the University of Michigan’s undergraduate admissions policy even though that policy sustantially overvalued an applicant’s race (but only African-American, Latino, and Native-Americans–screw the Asians and the Caucasians). In that opinion, Justice O’Connor said the following:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

In other words, an unconstitutional admissions policy is constitutional for 25 more years because Justice O’Connor gazed into the future and said so–not because the Constitution permitted or warranted the arbitrary extension.

In Lynch v. Donnelly (1984), Justice O’Connor introduced her endorsement test to “clarify” the Court’s Establishment Clause jurisprudence. However, all Justice O’Connor did was further muddy the legal waters of permitted religiousity in America. In her view, the government violates the Establishment Clause when to a reasonable or objective observer “the government intends to convey a message of endorsement or disapproval of religion.” Also, the purpose of the governmental practice must not “endorse or disapprove of religion.” This endorsement test, based upon her amalgamation of the Court’s Establishment jurisprudence and not on the Founder’s intent of the Establishment Clause’s purpose, is what held together the majority of five justices in the recent case of McCreary County v. ACLU where Justice O’Connor concurred that a courtroom display of the Ten Commandments was unconstitutional:

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. See Justice O’Connor’s concurrence, page 3 (citations omitted and emphasis mine).

In Lawrence v. Texas (2003), Justice O’Connor joined five other justices in finding a Texas statute criminalizing sodomy unconstitutional. In that opinion, she coughed out the following in her concurrence:

Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating a classification of persons undertaken for its own sake. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. (quotations and citations omitted)(emphasis mine).

Justice O’Connor’s personal preference–that States’ cannot morally disapprove of any group’s behavior–is absurd. Her usurpation of the State’s policy interest to grant gay and lesbians reprieve from a criminal law is judical activism at its finest (apart from the fact that the Equal Protection Clause was ratified to rectify racist State practices–not protect any disadvantaged group with whom Justice O’Connor or any judge sympathizes).

These three examples of Justice O’Connor inserting her personal policy preferences in lieu of the constitutional text or deference to state sovereignity are reasons why conservatives should rejoice (as I do) that Justice O’Connor is leaving the Court. President Bush has promised to appoint a strict constructionist (i.e., a judge who will interpret the Constitution and other law according to its orginal intent and meaning) in her place. I believe Bush will keep his promise and appoint a lawyer of a Scalia/Thomas mold. If so, an originalist interpretation of the Establishment Clause is likely to take hold, admission practices that disguise racial quotas with the mantra of diversity less likely to receive the Court’s judicial blessing, and it is less likely that same-sex marriage will be thrust upon our Nation by the Court.

First, in response to Philo’s assertion that any State’s enactment of a constitutional amendment defining marriage as between one man and one woman is homophobic and ignorant. I beg to differ. It’s quite irksome that advocates for same-sex marriage insist on labeling any action contra the advancement of gay/lesbian rights as homophobic. Such careless slander does nothing but infuriate those who support traditional marriage and is deterimental to gay/lesbian proponents attempt to radicalize marriage. I doubt one would be labeled racist if he or she was against affirmative action–especially if that person was black (Ward Connelly comes to mind).

The raison d’etre that States have been forced to craft and enact constitutional amendments defining marriage between one man and one woman is to prevent judges from pulling a coup d’etat Massachusetts-style and forcing same-sex marriage upon them by fiat. In other words, marriage has always been defined between a man and a woman. It does not mean anymore than that. Period. To preserve that definition from the liberalization of a scant minority and protect it from judicial usurpation is hardly homophobic. To be un-homophobic, one has to support gay and lesbian relationships not merely tolerate their existence. To tolerate one’s lifestyle choice, whether gambling or homosexuality, is not an abnormal fear.

TST, there is a big difference with interracial marriage and homosexual “marriage”–the interracial marriage is a heterosexual marriage whereas the homosexual marriage is either two women or two men. That children adopted into homosexual relationships would be confused about their unique sex roles (particularly a boy with two lesbians or a girl with two gay men) is so obvious I find it hard to believe you actually argue to the contrary.

Philo, you argue that legalizing same-sex marriage would increase the 8 reasons I cited that describe traditional marriage’s unique contribution to society. I disagree. Let me just take number two–responsible procreation. Neither the union of two men or two women can produce offspring. Gay and lesbian relationships are biologically incapable of procreating. Procreation is “to bring (a living thing) into existence by the natural process of reproduction.” See Oxford American Dictionary 713 (1980). Neither in vitro fertilization nor adoption qualify as natural processes. These are mere substitutes for procreation. Same-sex couples can never be parents of the same child. They may adopt a child (in states that allow gay/lesbian adoption or finagle the adoption via second-parent adoption) and become the parents legally, but they can never be parents genetically of the same child.

On to proof about the negative impact of same-sex marriage on society and the family. Since 1998, the Netherlands have legalized same-sex marriage. That recognition has not strengthened marriage or the family unit. Patrick Fagan and Grace Smith of the Heritage Foundation authored an article discussing homosexual marriage’s impact on the Dutch entitled “The Transatlantic Divide on Marriage: Dutch Data and the U.S. Debate on Same-Sex Unions.” They quote Dutch social scientists as follows:

[The Dutch] increasingly regard marriage as no longer relevant because they have been persuaded that marriage is not connected to parenthood and that marriage and cohabitation are equally valid lifestyle choices . . .

In addition, according to data collected by Fagan and Smith, the marriage rate has declined and the divorce rate has increased after the introduction of same-sex marriage. Thus, if one where to look at The Netherlands experience, the introduction of same-sex marriage weakens rather than bolsters same-sex marriage.

Philo and TST, both of you are eager to dismiss the stake society has in the stability of its family structure. Perhaps, it is because you continue to ignore the societal interest in preserving traditional marriage and instead focus on marriage defined by the love of two people in a monogamous relationship (as alluded to in the NY Times editorial you quote from). Marriage might be about love on a individual level–but that is irrevelant. It is society’s interest, not the individual’s that matters. Moreover, if marriage is re-defined as the union of two persons enamored with one another, what justification does society have to prevent other couplings like father/son or mother/daughter from marrying? The laws of incest would not prevent such overt discrimination from two, three, or four people in love–if love is the rationale behind society’s legal encouragement of marriage.

Traditional marriage is about much more that love, from the societal point of view. It is about the union of one man and one woman who create and nuture offspring that form the next generation and provide a stable family infrastructure. A nation-state has no business promoting love. It does, however, need to promote the optimal familial structure to maintain its population and promote social stability. Historically, traditional marriage is that structure.

Why should our Nation dismantle the definition of traditional marriage to placate the desires of a small minority of gays and lesbians? Why should their lifestyle choice be promoted or encouraged within society? A man’s love for a man or a woman’s love for a woman does not warrant such a drastic and cataclysmic change.

Stuffed Tiger (”ST”), thanks for your responses. I’ve enjoyed reading them.

Routinely, same-sex marriage supporters confuse the sphere of interests that the introduction of same-sex marriage presents. ST, one of your gripes with my viewpoint is that I label the fight for gay/lesbian marriage as a “special rights” fight instead of a “human rights” fight. This is problematic, in your view, because it could produce in a slippery-slope fashion a dehumanization of homosexuals. Moreover, how can I possibly deny a lesbian marital rights who is in love with another woman and raising a child together?

There is an enormous difference between societal interests and individual interests when contemplating the legalization of same-sex marriage. Individual interests are those mentioned by the woman in New York who laments she cannot be married because she is lesbian. Personally, she is hurt. However, is preventing her individual harm (by granting her a marriage license) more valuable to society than the societal harm caused by legalizing same-sex marriage? The answer is a resounding NO. Societies, throughout the history of the world, from Aristotle to today have nurtured and sustained heterosexual marriage as the foundation of their society. The United States is the beacon to the world in part because of its ability to nuture a robust, productive, and patriotic citizenry by encouraging marital coupling and subsequent rearing of children. That lesbians and gays feel bad or even ostracized is irrelevant. It is the societal or public interest that justifies government support of traditional marriage, not the individual or personalized feelings of love that draw a couple together.

Also, traditional marriage is the “glue” of society because that union not only produces children but rears the children as well. A male-female parent environment is the optimal setting for a stable rearing of offspring. Each parent teaches the child about their roles in society, each sex uniquely contributing to the child’s development. Same-sex couples cannot replicate this uniqueness because they are missing the male or female counterpart. Admittedly, there some couples are infertile and cannot reproduce or some couples marry in the older years when conception is either impracticable or impossible. But this tiny minority of marriages that fall into this category do not outweigh the vast majority of marriages that do successfully procreate and bear the burden of raising the next generation.

ST, you also gripe about the divorce rate and out-of-wedlock births as undermining my argument that marriage is the glue of society. First, to divorce. The divorce rate in United States and other nations is pathetic (and also overemphasizes those who are divorced multitudinous times). Primarily, this is due to no-fault divorce. This leads to increased societal instability which marriage is designed to foster and protect. Our divorce laws need revision. But that does not mean we should introduce an untested, less valuable form of “marriage” into society to further weaken and hamper the institution. Moreover, marriage laws exist to provide an incentive for co-habitating couples to marry precisely because of the instability inherent in those types of relationships (i.e., either the male or female can walk out without any consequence).

Lynn Wardle, Professor of law at Brigham Young University, highlights the unique contributions and benefits that heterosexual marriage brings to society:

1. Safe sexual relations
2. Responsible procreation
3. Optimal child rearing
4. Healthy human development
5. Protecting those who undertake the most vulnerable family roles for the benefit of society, especially wives and mothers
6. Securing the stability and intergrity of the basic unit of society
7. Fostering civic virtue, democracy, and social order
8. Facilitating interjurisdictional compatability.
See Lynn Wardle, “Multiple and Replenish”; Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, Harvard Journal of Law and Public Policy, 24: 771, 779-780.

These are the many of the reasons why traditional marriage is the glue of society. Relationships, simply, are not that glue. There are many types of relationships (co-worker, friend, acquaintance, lover) but only one has the potential of creating and raising offspring that sustain a nation’s vitality. That is heterosexual marriage.

First off, thanks for noting my grammatical errors. I have fixed them. I too, would enjoy a a little back-and-forth on the issue of same-sex marriage.

Philo, I disagree with your characterization of the fight for same-sex marriage as a “human rights” fight. Rather, it is a “special rights” fight. Gays and lesbians choose to be gay or lesbian–whether they want to admit it or not. That choice, like all choices, creates a consequence–which in this case means a prohibition on entering into a marriage relationship (excluding the judical tyranny in Massaschusetts, but I won’t go there now). Same-sex marriage is as much a human rights issue as fat people fighting for bigger seats on airplanes. Both groups are identifiable by their particular lifestyle choice, homosexuality or gluttony, not by the individual’s qualities inherited at birth.

By pushing same-sex marriage into the “human rights” category of causes, one obscures the real danger that same-sex marriage imposes: the dismantlement and corruption of the marriage institution. Traditional marriage is the glue to society. A family is formed by the union of a male and female, and the offspring of that family create their own families and propagate and sustain the human species. Moreover, a man and woman united in marriage is the optimal rearing environment for children. By expanding or enlarging the definiton of marriage to incorporate same-sex unions, the meaning of marriage becomes disjointed and malleable. Moreover, the protections incorporated into our laws to uphold marital unions will protect “marriages” that the legislators who made those laws never intended to protect or uphold.

As far the American opinion of same-sex marriage goes, my prior post directs the reader to (obliquely, I admit) polling data referenced by National Review Online’s Stanley Kurtz located here. A CNN/USA Today/Gallup poll recently found that 68% of Americans oppose gay marriage while only 28% support it. That’s a 40% spread–a statistical margin very similar to those who overwhemingly voted for and the bleak minority who voted against the Kansas amendment that defines marriage as the union of one man and one woman.

Now to Loving. Loving was about race–which is a “human rights” issue. A person cannot choose their innate racial being, they are born white, black, etc. In Loving the Court emphasized the importance of a traditional marriage relationship:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (emphases mine).

Why is traditional marriage fundamental to our existence and survival? Because the beginnings of the human race came from the union of one man and one woman (Adam and Eve), and the human race does not survive but for the propogation of its species through conjugal relations between the male and female sexes. Same-sex marriage is not fundamental to our society’s existence and survival. Neither can children be created from the union of a man and a man or a woman and a woman nor do the progenitors of the human race descend from homosexual relations. Loving bolsters heterosexual marriage, recognizing its anchoring effect within society.

I am glad that our Nation’s laws and systems of government have removed themselves from the sludge of racism. However, slavery and its progeny (Black Crow laws, etc.) are very different from the “special rights” movement of gays and lesbians. The laws that uphold, define, and support marriage between one man and one woman are not analagous to racism or racist practices. Rather, they are a product of a conscious choice by our Nation and 49 of our States to sustain our polity rather than throw it into familial chaos.

This Wednesday, Spain joined Belgium and The Netherlands as the only countries to legalize same-sex marriage.

Despite the huge public outcry, the Socialist legislature carried through the measure. The reaction on the blogosphere has been interesting.

Andrew Sullivan argues that the Spanish decison (combined with the Dutch and Belgian) creates problems for gays who desire to work in the U.S. but cannot bring their gay lover in a “married” fashion. Sullivan implies that because our country prohibits gay marriage, U.S. immigration policy unjustly discriminates against immigrants whose country of origin adopts a more radical approach toward marriage. The argument Sullivan advances is a simplistic ruse for serepitiously advancing same-sex marriage, similar to second-parent adoption. The United States is not required to acquiese to the societal norms of other countries, especially in the immigration area. To cry discrimination is coddlesome and weak.

Others use the Socialist Spaniards as an opportunity to promote their characterization of same-sex marriage as a “human rights” cause. After utterly confusing the rationale behind institution of marriage, Philo of the Baltimore Group insists that same-sex marriage is “inevitable” in the U.S. because it’s a “human right”–Americans just need to wake up. Well, you might want to consider moving Philo. I heard Canada is a great place to live. Support for traditional marriage is strong, vastly overpowering any desire for same-sex marriage. The activist judges love same-sex marriage but the American people stand opposed, for reasons I’ve expressed before.

Another blogger dismisses any notion of societal normality and leaps up-and-down about the Spainish decision. Too bad he forgets that by granting same-sex marriage rights to gays, that decision affects the entire polity and institutional mechanisms (courts, adminstrative agencies, etc.) that hold a society together. Hey Ed, you might want to read up on the Dutch and how their society is doing after legalizing gay marriage.

The Spanish paper, El Pais, editorializes that the whole country of Spain should feel “proud” to have same-sex marriage. Incorrectly, like Ed, they also state that “same-sex marriage doesn’t diminish or harm heterosexual marriage nor attack the traditional family.” Same-sex marriage is again a “rights” issue, a mere extension of the rights equally given to other Spaniards. Including Spanish husbands/sons and mothers/daughters? Of course not. Same-sex marriage advocates and supporters cannot make this argument because there are other relationships (polgamy, intra-family) that are prohibited from forming a marriage relationship, precisely because society does not benefit from those types of relationships qua heterosexual marriages.

Those radicals who support same-sex marriage will twist every “victory” toward their individualized movement toward “equality.” However, as most Americans recognize, the institution of traditional marriage is the bulwark of our society and tradtional marriage supporters (like myself) will not allow its deleterious effects run rampant among our society.

Today in Lewis v. Harris, a New Jersey Appeals Court upheld a lower court decision that refused to find the right to same-sex marriage in the New Jersey Constitution. This moment of judicial sanity is applaudable. The opinion is sound and straight-forward, solidly grounded in the law and history of our Nation. Judge Skillman rejected the radical rationale of Goodridge and acquiesced to the voice of the legislature–not that the tiny but loud minority voice of the ACLU and LAMBDA. Here are some key points of the majority decision:

A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores. (Page 11)

Plaintiffs’ claim that a right to marriage between members of the same sex maybe found in . . . the New Jersey Constitution has no foundation in its text, this Nation’s history and traditions or contemporary standards of liberty and justice. (Page 18)

[T]he historical and prevailing contemporary conception of marriage as solely a union between a single man and a single woman is based partly on society’s view that this institution plays an essential role in propogating the species and child rearing. (Page 20, Footnote 4)

The significant difference between [traditional marriage and same-sex marriage] is that the State’s argument [traditional marriage] is grounded on historical tradition and our nation’s religious and social values, while plaintiffs’ argument is based on nothing more than their own normative claim that society should give unions between same-sex couples the same form of recognition as marriages between members of the opposite sex. (Page 23) (my emphases)

Also, the New Jersey Court captures the disingenuousness of same-sex marriage advocates claim that altering marriage by permitting gays and lesbians to marry does not adulerate or mar the traditional definition of marriage. In their argument before the New Jersey Court, the ACLU and their allies define marriage as a “compelling and definitive expression of love and commitment that can occur between two adults.” (Page 19). Not only is marriage no longer a union, but a transformative concoction containing adjectives of feeling (love and commitment) while deemphasizing the unique bond between one man and one woman. Clearly, the ACLU, LAMBDA, and others cannot argue that allowing same-sex couples to marry does not change the definition of marriage. Rather, their definition of marriage and that of the state of Massachusetts is a “significant alter[ation].” (Page 32).

Hopefully, the New Jersey Supreme Court will uphold this decision after the inevitable appeal. As for now, traditional marriage advocates can relish the savor of sweet constitional sanity. Man, that tastes good.

In the June 6th issue of National Review, Ramesh Ponnuru opines that the public debate over traditional marriage and its bastard children (same-sex marriage, civil unions, domestic partnerships, etc.) should be steered in a different direction. Ponnuru argues that both sides could agree that the benefit structure that has been legally created for traditionally-married couples (i.e., hospital vistation rights and bereavement) should be extended to same-sex couples. His premise:

[T]he issue of benefits can, to a large extent, be separated from the issue of the legal recognition of relationships.

And the issues should be separated. There is no very good reason that many of the incidents of marriage that remain on the books should be tied strictly to marriage. To the extent possible, they should be extended more widely. Liberals and conservatives, supporters and opponents of same-sex marriage alike, should be willing to support this extension.

Ponnuru argues, in a follow-up piece, that the piece-meal giving of benefits to same-sex couples “is worth doing on the merits.”

What Ponnuru fails to acknowledge is that the meritoriousness of the benefit derives from the marriage relationship itself. It is the marital bond that our state and federal legislatures seek to encourage and sustain in granting the benefits or incidents of marriage. The State doesn’t support marriage merely because the conjugal relationship is the traditional familial structure, but that heterosexual couples foster benefits to the State and society that cannot be replicated in other non-traditional relationships–particularly child-rearing.

The problem with a compromise on benefits is the explicit acknowledgement by the States or Federal government that homosexual relationships are worthy of supportive recognition. The family is the bedrock of any society. Our representative governments need not further fracture the family by encouraging the coupling of its citizenry who cannot procreate or provide the optimal environment for the growth and development of children.

The debate over same-sex marriage and subsequent legal battles will continue at a torid pace. As Maggie Gallagher wrote in response to Ponnurru, any compromise will not placate the gay radicals. Ultimately, there will be a constitutional amendment protecting the traditional defintion of marriage–between one man and one woman–or, same-sex marriage or civil unions granting all benefits of traditional marriage will be imposed by judicial fiat.