Same sex Marriage and the Rule of Law

Posted By Elgin Hushbeck


Bob Cornwall recently posted on his blog about some of the legal issues surrounding the same sex marriage debate. He writes “There are important legal issues at stake here” and this is very true. However when he starts his blog with the claim that “Across the nation gay marriage bans are falling under the weight of the Rule of Law” he could not be more wrong. The laws on marriage are not being stuck down because of the Rule of Law, but rather the rule of courts

There are many aspects to the Rule of Law, but two that are key to this debate are 1) that laws are clear and written, 2) that no one is above the law. Court decisions such as the one Cornwall writes about in Michigan violate both of these. Since they are actually overturning clear and written laws, the only appeal can be to the Constitution, which Cornwall acknowledges.

But here there is a problem. There is nothing in the Constitution about homosexuality, or marriage. Cornwall attempts to get around this by writing, “Thus, it was ultimately the Constitution that proved to overturn earlier voter supported bans on interracial marriage. While some opponents of gay marriage, do not want to equate the two, on Constitutional grounds they are the same.” This is just factually wrong.

In addition to the 14th and 15th amendments, bans on interracial marriage were correctly struck down because there is no legitimate difference between people of differing skin color. Now it was a popular view on the left from the late 1960s into the 1990s that there were no legitimate differences between men and women. But except for a few holdouts this has largely been abandoned because numerous scientific studies have shown that men and women are significantly different, not only in obvious things like outward appearance but in the way they think and react to the world around them. Shocking as it may seem to some, men and women are different.

The bottom line here is that while no legitimate distinction can be drawn on skin color, real distinctions do exist when it comes to male and female. Now society can, and I believe should, have a debate about these differences when it comes to social constructs such as the family, particularly when they are too be enshrined into our laws, but it is simply factually false to pretend they do not exist.

I happen to believe that these differences are not only significant, but complementary, such that the best environment in which to raise children is a stable two parent home with a man and a woman, what traditionally has been called marriage. This was the idea behind the establishment of marriage laws in the first place, and it remains the fundamental reason I support laws on traditional marriage, something I have been concerned about even before there was a same-sex marriage debate, and thus is a concern that exists independent of it.

This is the reason I oppose same-sex marriage, not out of any hostility to same-sex couples, but because to expand marriage laws designed to provide the best environment to raise children, is to weaken it. Cornwall claims that it does not, but it is just fundamental that the more a word can mean, the less significance it has.

For example, I would like to help children with autism, so say I had the money to set up a foundation to support these kids. If the definition of the kids this foundation supports is later expanded to include all kids with special needs, this must by definition weaken the support given to kids with autism. If it is expanded again to include all kids, this would weaken it even further and in fact would undermine the reason for the foundation.

Marriage was written into law to strengthen it by giving it preferential treatment. It was society’s way of saying this is the best way to raise children. The more situations “Marriage” is expanded to cover, by definition, the less significant traditional marriage will have. Thus to expand the definition of marriage is to weaken it as a concept. Something that can mean anything, ultimately means nothing.

Cornwall writes the common argument that, “My marriage to Cheryl will not be affected in any way by recognizing the marriages of my gay and lesbian friends.” I have no doubt about this. Neither will it affect my marriage to my wife. But while true, it is completely irrelevant to this debate. Quite frankly, they could abolish marriage laws altogether and it would have no effect on my marriage, and I suspect on Cornwall’s.

This is because when we speak of marriage there are really two types. One is the commitment we make to our spouses before God. This is the true marriage and is independent of what the government does or does not do. But then there is the legal construct called marriage, which is the focus of the current debate over its definition.

While such redefinitions may be irrelevant to individual marriages, the same cannot be said about society as a whole. A society that says a family headed by a man and a woman is the best way to raise children will be a different society than one does not. While people may have differing opinions as to the degree, significance, and desirability of this difference, it is irrational to claim it will have no effect. After all, if it had no effect at all, then there would be no reason to change the law in the first place.

Legal marriage is a social construct established for particular civic goals. There is nothing that says marriage need be sanctioned by the state and for most of human history it was not. Some argue that it was a mistake for government to get involved in marriage in the first place. Others argue that we should keep the traditional definition, still others argue that the definition should be expanded to include same-sex couples, while still others would expand it to include any combination, which is effectively the same as the first position.

For the courts to step into the middle of this debate and impose a particular view as a matter of allegedly Constitutional law is simply absurd. For a judge to strike down traditional laws on marriage, they really have only two options. 1) They can rule that there is no difference between men and women. 2) They can just impose their own views on the law. As we saw above while the first option was a popular view a few decades ago, this view is no longer scientifically tenable, and thus I would argue the first option is really indistinguishable from the second.

In any event it should be clear that Judges are not tossing out laws on traditional marriage because of any clearly established legal principles. If they were we would not have had to wait for over 200 years for the courts to have discovered these principles buried in the Constitutions.

Those who like what the courts have done, often speak of a living Constitution, a Constitution that grows and evolves with our understanding. While this may sound good to some, it is not the Rule of Law. Again the Rule of Law implies clear established laws where no one is above the law. How can the law be clearly established if we do not know what it is until a court tells us? Rather than being the Rule of Law, this destroys the concept.

Since someone would have to tell us when the law evolves, the judge then assumes the role of legislator, one who determines what the law will be, rather than a judge who must decide how to apply it is a given situation. These are fundamentally different roles. It makes the judge, particularly on the Supreme Court, more a king than a judge, for as the ones who will determine the law, they are by definition above it.

So supporters of same-sex marriage may celebrate these legal victories as an advancement of their side, but they are a defeat for both the Rule of Law and the democratic process. It is important to remember that kings change, and so do judges. Giving this power to Judges is dangerous as they cannot always be counted on to rule in your favor, and the ruling of a judge is much harder to change.

Finally, with the Rule of Law dying, so too are its protections. Thus it is really no surprise that the more extreme of those demanding “tolerance” for their points of view, will permit no disagreement with theirs, as some high profile people have recently found out when they lost their jobs because they expressed, or had expressed in the past, disagreement. Others have been hauled before the government and fined for not falling into line with the new enlightenment. Some get off lightly as they are merely packed off to be reeducated in the new enlightenment, a clear warning to others not to disagree, even in a tweet.

If you agree with the new enlightenment these can all be signs of progress, but if you hold a contrary view this is much closer to a soft totalitarianism than anything resembling the Rule of Law, much less a democratic system. It is just one of a number of reasons that a recent Rasmussen Poll showed that 37% of people now fear their government, and 54% see it as a threat to liberty. A government in which this many people are living in fear of it may be many things, but it is not a democratic government and it is hardly under the Rule of Law.


May 17th, 2014

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