Marriage Amendment

This morning on the President's Radio Address, President Bush endorsed "a constitutional amendment that defines marriage in the United States as the union of a man and woman."

From a historical and constitutional perspective, such an amendment is completely unnecessary.

Marriage is not defined by a State or a constitution. The Declaration of Independence says that our nation and its laws are subservient to "the Laws of Nature and of Nature's God." Marriage is an institution created and defined by God. For the first 300 years of American history, and for centuries of English common law before that, marriage laws in this country were based on the origin of the marital union in Genesis. It was only in the last few years that judges who had taken an oath to "support the Constitution" declared the entire legislative process and the process of popular amendment of constitutions to be "unconstitutional." Overwhelming electoral and legislative majorities have passed laws and amendments to affirm the traditional view of marriage. Judges that negate constitutional processes violate their oath to support the constitution, and should be impeached.

No judge, no court, no government has the right to compel anyone to hold that any but a man and a woman can be united in "marriage." This is the position of America's founding charters.

In 1913, the Texas Supreme Court reflected the views of the Founding Fathers when it declared:

Marriage was not originated by human law. When God created Eve, she was a wife to Adam; they then and there occupied the status of husband to wife and wife to husband. . . . When Noah was selected for salvation from the flood, he and his wife and his three sons and their wives were placed in the Ark; and, when the flood waters had subsided and the families came forth, it was Noah and his wife and each son and his wife . . . . The truth is that civil government has grown out of marriage . . . which created homes, and population, and society, from which government became necessary [sic] . . . . [Marriages] will produce a home and family that will contribute to good society, to free and just government, and to the support of Christianity. . . . It would be sacrilegious to apply the designation "a civil contract" to such a marriage. It is that and more; a status ordained by God.
Grigsby v Reib, 153 S.W. 1124, 1129-30 (TxSupCt 1913)

This opinion hearkened back to an earlier decision by the Texas Supreme Court in 1848, which declared that the legal contract of marriage

is the most solemn and important of human transactions. It is regarded by all Christian nations as the basis of civilized society, of sound morals, and of the domestic affections. . . . The mutual comfort and happiness of the parties are the principal, but not the only, objects of the engagement. It is intended also for the benefit of their common offspring and is an important element in the moral order, security and tranquility of civilized society. The parties cannot dissolve the contract, as they can others, by mutual consent, and no light or trivial causes should be suffered to effect its recision. . . . [A]ccording to the experience of the most enlightened nations, the happiness of married life greatly depends on its indissolubility.
Sheffield v. Sheffield, 3 Tex. 79, 85-86 (TxSupCt 1848)

These courts were articulating the position of America's Founding Fathers. Alexander Hamilton lamented the anti-Biblical, anti-Family evils of the French Revolution:

Equal pains have been taken to deprave the morals as to extinguish the religion of the country, if indeed morality in a community can be separated from religion. It is among the singular and fantastic vagaries [freaks] of the French Revolution that . . . a new law of divorce was passed which makes it as easy for a husband to get rid of his wife and a wife of her husband as to discard a worn out habit. . . . [T]hose ties . . . are the chief links of domestic and ultimately of social attachment.
Syrett, Harold C., et al., eds. The Papers of Alexander Hamilton, 27 vols. New York: Columbia Univ. Press, 1974, vol. XXI pp 402-404, "The Stand No. III." New York, Apr. 7, 1798.

James Wilson, who was a US Supreme Court Justice after he signed the Constitution, emphasized the importance of a Biblical concept of the family:

Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated in Holy Writ, we shall find that to the institution of marriage the true origin of society must be traced.
By that institution the felicity of Paradise was consummated . . . . Legislators have with great propriety . . . provided as far as municipal law can provide against the violation of rights indispensably essential to the purity and harmony of the matrimonial union. . . . By an act of the legislature . . . all marriages not forbidden by the law of God shall be encouraged . . . . But of causes which are light or trivial, a divorce should by no means be permitted to be the effect. When divorces can be summoned . . . a state of marriage becomes frequently a state of war.
Works, McCloskey, ed., Belknap/Harvard Univ Press, 1967 II:598-603

In James Kent's Commentaries on the Constitution, one of the greatest legal works of the 19th century, we are reminded:

All Christian states favor the perpetuity of marriage, and suspicion and alarm watch every step to dissolve it . . . . Unlike other contracts, marriage cannot be dissolved by mutual consent . . . . The laws of divorce are considered as of the utmost importance as public laws affecting the dearest interests of society . . . . The domestic relation . . . of parent and child . . . [and] the duties that reciprocally result from this connection are prescribed . . . by the positive precepts of religion and of our municipal law.
Kent, Commentaries on American Law, DeCapo Reprint of 1st ed., 1826-30, II:96-98,159

Adulterers and polygamists were quick to seize on ambiguous language in the constitution and attempt to legitimize their anti-Biblical acts with the protection of the First Amendment. Courts didn't buy their arguments:

[The Founders] did not mean that the pure moral customs which Christianity has introduced should be without legal protection because some pagan, or other religionist, or anti-religionist, should advocate as a matter of conscience concubinage, polygamy, incest, free love, and free divorce, or any of them . . . . No Christian people could possibly allow such things.
The Supreme Court of Pennsylvania, in Commonwealth v. Nesbit 84 Pa. 398 (1859)

These views were echoed by the US Supreme Court in the anti-polygamy cases.

The Seventh Commandment was the basis for American Family Law.

The State of California recently considered adopting legislation on sex-education for public schools requiring that:

Course material and instruction shall stress that monogamous heterosexual intercourse [one man and one woman] within marriage is a traditional American value.

The ACLU was outraged:

It is our position that monogamous, heterosexual intercourse within marriage as a traditional American value is an unconstitutional establishment of a religious doctrine in public schools. . . . We believe [this bill] violates the First Amendment.

Those who wrote, debated, and ratified the First Amendment did not. Heterosexual marriage is a part of "the Laws of Nature and of Nature's God"; homosexuality is contrary to it.

As a Libertarian, I oppose all government laws regarding marriage. I believe the Mafia should not recognize the moral legitimacy of homosexuality, and I would say the same thing about the federal government. I am also working for the abolition of both institutions. Homosexuals who seek the licensure or approval of the State for their relationship seek that which is unconstitutional and against their own interests.

I believe heterosexual marriage is essential to the flourishing of humanity, and government recognition of homosexuality impoverishes us all. As long as any proposed marriage amendment which recognizes marriage as defined by the Laws of Nature and of Nature's God does not advocate the initiation of force as a means of achieving political or social goals, I would vote for it.

There is much that could be said about this issue, and I hope any who oppose my views (or can't exactly figure them out) will post their comments.