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Homosexual marriage back on the front burner

By Scott Tibbs, November 24, 2003

The Massachusetts Supreme Court ruled last week that the state's ban on homosexual marriages violates the state constitution. The ruling provoked an immediate backlash from social conservatives, including Concerned Women for America, which sees it as a step toward a national recognition of homosexual marriages.

The ruling does create a thorny issue; given the Constitution's mandate that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Without federal intervention, the other 49 states would be forced to honor same-sex marriages performed in Massachusetts. However, the 1996 Defense of Marriage Act used the powers granted Congress in the following sentence to state:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

What this means is that without a ruling from the U.S. Supreme Court, the Massachusetts decision cannot be applied to other states. However, the ruling has brought the debate over homosexual marriage to the forefront of political and cultural circles, and many people are asking where we go from here on this issue.

Before delving into the debate over homosexual marriage, it is important to consider a more general principle behind the Massachusetts case. The state supreme court ruled that a prohibition on homosexual marriages violates the principle in the state constitution that "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." The state supreme court "found" a right that had not existed in over 225 years of statehood.

No one is being denied the equal protection under the laws because they cannot marry someone of the same gender. The state specifically defines marriage as a union between one man and one woman. Anyone in the state can enter into this union, including homosexuals.

Whatever the arguments for or against homosexual marriage, it is important that the legislative branch, not the judicial branch, adopt changes in policy. If the people of Massachusetts, through their elected representatives, decided to recognize homosexual marriages, they have a right to do so. Neither the federal nor the various state constitutions are "living" documents. A "living" constitution means there is no constitution at all, but that the judicial branch can legislate from the bench.

I do not support government recognition of homosexual marriages. I do not believe the government should be codifying a same-sex relationship in law.

Note that I “wrote government recognition of homosexual marriages”. If a same-sex couple wishes to enter into a “committed relationship”, they should not be prohibited from doing so but government should limit the legal contract of marriage to one man and one woman.

It is reasonable that homosexuals should be able, under freedom of contract, to legally designate some of the same rights available to married couples, such as rights regarding property, inheritance, wrongful death, and power of attorney. But there is no reason these rights should be available only to homosexuals. Canada has implemented this into its Adult Interdependent Relationships Act.

While the idea of a "slippery slope" is often dismissed as a logical fallacy, the concept of a "slippery slope" is not without merit. It is true that the end result of the "slippery slope" need not take if a particular policy is implemented. But recognition of same-sex marriages would set a precedent that could then be used to expand the definition of marriage beyond that.

One reason why I oppose government recognition of same-sex marriages is that it would effectively be a tax increase. Employers that offer benefits to married couples would suddenly have more couples to whom they would be required to provide benefits. If a private business wishes to provide these benefits, they have the right to do so in a free market (though, like Disney, they can expect some public opposition) but this should not be mandated by the state.

Many conservatives are supporting a constitutional amendment that would ban homosexual marriages. The Defense of Marriage Act, while in line with a strict reading of the Constitution, would not be enough to prevent the Supreme Court from mandating recognition of same-sex marriages.

I am concerned that putting this matter to a vote is not appropriate. Passing a federal marriage amendment would be surrender to the unconstitutional powers of an activist judiciary. Congress should consider impeachment of judges (including Supreme Court Justices) that abuse their power to make rather than interpret the law.

However, the federal marriage amendment goes too far and I cannot support the amendment as currently written. While I oppose government recognition of same-sex marriages, I think the states should be allowed to make this decision for themselves. Passing a constitutional amendment taking this power away from the states would be an attack on the concept of federalism and self-rule.

The First Amendment implications of same-sex marriage must also be addressed. Should a Christian business owner be forced to provide benefits to a homosexual couple? While states should have the authority to recognize same-sex marriages, there must be a First Amendment exemption to those who have religious or moral objections to homosexuality.

If a constitutional amendment is to be passed, a new version of the federal marriage amendment should be introduced, allowing the states to decide the issue for themselves, denying federal recognition of same-sex marriages, and guaranteeing that religious freedom is not infringed.