Today is the second part looking at the
questions to be answered in oral arguments before the Supreme Court on April 28th.
There are two questions being addressed.
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
We covered question 1 in Part I. Today we’ll cover question
2, plus take a look at the status of marriage laws in the states prior to a
ruling.
Question 2 relates to Article IV of the Constitution,
Section 1: “Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State.”
Normally, a contract formed in one state is upheld in the
other 49 states. But marriage isn’t a normal contract. A simple contract
between two people—such as co-ownership of a boat—would hold up beyond state
boundaries. But a marriage is more complicated. It’s more than just a
two-person contract; government and society are involved in honoring the particular
thing that marriage is. While the marriage remains intact, we offer joint
ownership of property accumulated during the marriage—which allows for one
spouse to stay home to care for offspring while the other spouse earns income
for the whole household, and other arrangements particular families might find
beneficial. Insurance is different for married and single people. Taxes are
different for married and singles (sometimes choices can be made to do what is
most beneficial, filing jointly or separately).
Then there are things the state is required to do when the
participants choose to end the contract—to divorce. States differ in general
rules for dividing property. And then there’s the more difficult issue of
dealing with child custody—preferably in the best way possible for the children
while not abrogating the rights of fit parents.
Note that states already differ in ways they handle divorce;
the couple is subject to the laws of the state in which they divorce,
regardless of what the laws were where they married. The Full Faith and Credit
clause does not require a state to have its laws subsumed within some other state’s
laws, just because the contract was formed there.
Things would be less messy if no same-sex “family” had child
custody issues. No such couple can produce children, so if a child is
genetically related to one or the other, the simple decision would be to allow
custody to the biological parent. If laws had been maintained to allow adoption
only by married husband and wife, there would be no messiness now, in which
homosexual couples complain that we, society, have somehow marginalized their
children by making it seem that their family forms were less valid.
We did not make it that way; nature made it that way. And so
far these “parents” are failing to prove themselves equally valuable to
children or society. More studies are showing that same-sex parented families
have outcomes seriously inferior to married parent families.[1] Among the amicus briefs offered to the 5th
Circuit Court in January came from a group of now-adult children raised by
same-sex parents, declaring the problems they faced, ranging from sexual
confusion, to fear of disagreeing with the same-sex “marriage” promoters
(risking ostracism from family relationships), to subjugation to sexual
predation—apparently unprotected by the parents, and possibly even enabled by
those parents.
We do, however, have precedent for how to treat marriages
formed in other states (other sovereign nations) that do not meet our basic
definition. Various countries throughout history, and currently in our world,
allow for multiple wives. Our government does not recognize more than one as a
legal wife. Most of the time there is not interference with these people’s
chosen family forms—unless they start requiring government recognition, such as
in taxes, welfare, or child custody. It would be a simple thing to apply the
same pattern among the united sovereign states in the US. If there are differences in what can be accepted
as a marriage, then let the couple be aware of where they are going, as they do
now concerning divorce.
No one is going to stop these people from traveling state to
state and staying together. Nobody cares. But if they move to a non-recognizing
state and then start requiring the state to determine their division of
property and child custody disagreements, they shouldn’t expect the state to
deal with them as their state of origin might. Nor should they expect the
state’s tax laws to change just to satisfy them.
It shouldn’t be possible for a small state, like
Massachusetts, which had same-sex “marriage” imposed on the people by its state
supreme court’s misreading of their constitution, to suddenly by fiat go
against the will and belief of the people in all the other states. That is not
the intention of the Fourteenth Amendment, nor of the Full Faith and Credit
clause.
Changes happen day-by-day lately. But I’ve attempted to find
the current status of marriage in the United States and its territories. By my
count, currently 25 states have had same-sex “marriage” imposed on them
regardless of the state’s laws and constitutions to the contrary. Ten states
plus the District of Columbia have had same-sex “marriage” imposed on them by
state legislatures, with varying percentages of agreement from the people.
Eight states have court rulings attempting to impose same-sex “marriage,” but
these are under appeal and haven’t been imposed yet (or fully imposed in some
cases). Seven states and the remaining five territories still have their
original definition of marriage—so far.
If the SCOTUS ruling is that states have no right to define
marriage in a way that doesn’t include same-sex couples, that would be at odds
with the purpose of the 14th Amendment, and it would reverse the Court’s
most recent ruling.
If the ruling on question 1 is that states have the right to
their own definitions, as was made clear the last time the Supreme Court looked
at the issue,
then it would allow any or all of
those 25 court-imposed states to revert to their traditional definition of
marriage. That would be a swing from 35states licensing same-sex couples to
only 10 (plus DC). And it would move the number keeping the traditional
definition of marriage to 40 plus the territories. If that is the ruling on
question 1, then it is likely that individual state laws will be respected in
question 2 as well.
An anti-freedom ruling on either question would face state
sovereignty challenges in a number of states (Texas, for one).[2]
But the ruling would be expected to go beyond the court cases at issue and
apply to every state.
So the stakes are high. Certainly higher than anything court
related was intended to be by the writers of the Constitution. We’ll be
watching and praying that the justices understand the law and abide by it, for
the sake of civilization
as we know it.
While the questions address specifically whether same-sex "marriage" will be imposed generally, we should be aware that every time same-sex "marriage" is allowed, freedom of religion comes under attack. Civilization requires a religious people, self-governing according to codes of conduct based on the Ten Commandments, and protecting family as the basic unit of society. Same-sex "marriage" isn't just a question of whether homosexuals have an innate right to marry whoever they choose regardless of the definition of marriage; it is a question of whether we choose to live in a civilized society, along with freedom and prosperity--or the alternative of savagery with tyranny and poverty.
[1] Citations related to
same-sex parents and children’s outcome:
• Parliamentary Report on the Family and the Rights of
Children, January 2006.
• Douglas Allen, “Review of the Economics of the
Household,” October 2013, described in “A Married Mom and Dad Really Do Matter:
New Evidence from Canada,” by Mark Regnerus: http://www.thepublicdiscourse.com/2013/10/10996/
• Loren Marks, “Same-sex parenting and children’s
outcomes: A closer examination of the American psychological association’s
brief on lesbian and gay parenting,” Social
Science Research, Volume 4, Issue 41, [
http://www.sciencedirect.com/science/journal/0049089X/41/4
] July 2012, pp. 735-751.
• Mark Regnerus, “How different are the adult children
of parents who have same-sex relationships? Findings from the New Family
Structures Study,” Social Science
Research, Volume 41, Issue 4, July 2012, Pages 752–770.
• Ana Samuel, “The Kids Aren’t All Right: New Family
Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14,
2012, http://www.thepublicdiscourse.com/2012/06/5640/#_edn1. [See the footnotes
as well.]
• Ann Bailey, “How do children fare when reared by
same-sex couples?” United Families International Blog, June 11, 2012 [has an
excellent graphic]: https://unitedfamiliesinternational.wordpress.com/2012/06/11/how-do-children-fare-when-reared-by-same-sex-couples/
[2] The Texas Legislature is
currently considering a bill that would disallow officials from granting
licenses to same-sex couples or any others that do not meet the requirements of
the law, as written in the state constitution; it is a sovereignty issue. More
on this bill in a Breitbart news item: http://www.breitbart.com/texas/2015/01/11/texas-rep-introduces-bill-to-defend-traditional-marriage-and-state-sovereignty/
.
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