On Friday, the Supreme Court of the United States made a “Historic” ruling. They ruled that the Constitution of the United States requires that same sex marriage be recognized in all states. An incredible ruling, considering that same sex marriage was never even considered in this country (or any country) until just a little over a decade ago. And now, all of the sudden, we are coming to the realization that our very own constitution has required it for the last one and half centuries; amazing that we missed it for so long.
As you would likely have guessed, I strongly oppose this ruling. From two of my previous posts (It’s Not Just Cake, and Today We Stand On the Precipice of Sodom and Gomorrah) my objections to homosexuality (and by association same sex marriage) for moral, spiritual, and Biblical reasons should be pretty well understood. I’m not going to rehash all of those points.
My opposition to the Supreme Court’s ruling is not solely based on my strongly held religious convictions, but just as much based on the fact that it is a complete defilement of the Constitution. Not just because of the gross misinterpretation, but the entirely unconstitutional and downright tyrannical manner in which the Supreme Court has circumvented democracy.
Everyone, conservative and liberal alike, should be appalled at what the Supreme Court has done. Even if you support Gay Rights, you should feel disgraced in the way that the “equal rights” victory has been achieved. The ends do not justify the means, and in this case the means has completely perverted democracy.
To see my point, let us turn to Section 1 of the 14th Amendment of the Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Somewhere, buried deep inside this text is where the Supreme Court said that they found the right for same sex marriage.
To be fair, I understand the argument. The argument goes that the due process clause requires that everyone share equal protection (or privilege) under the law, and if heterosexuals are granted the privilege of marriage then homosexuals must also be granted that same privilege. The argument almost makes sense. At a first glance it seems fairly straight forward. Straight people can get married, so Gay people should be able to: “equal protection of the laws”.
But if you look any deeper than just the surface of the argument it is clear that it doesn’t really hold water.
The 14th Amendment was written and ratified shortly after the Civil War, during the period that is called “Reconstruction”. The nation was still reeling from the devastation of 4 years of ravaging war. On top of that, half of the nation up until that period had depended on slavery, which was finally abolished via the 13th Amendment. The 14th Amendment, which followed shortly after, granted citizenship to these freed slaves. As right as it was to abolish slavery, and grant citizenship to the freed, it was never going to be an easy transition. Former slave owners in the South had to come to terms with the fact that those who had once been considered their property were now citizens of the United States, and were free men and women. As one would expect, this was not easy for many of them to do. Any read of history shows that the hard life of the black man was not over when slavery ended, in many ways it was still only just beginning. The end of slavery was but the beginning of Jim Crow laws in the South. Even though slavery had been abolished, blacks in most part of the country were still under the iron fist of laws that brutally denied them life, liberty, and property and so much more. The authors of 14th Amendment knew it was going to be like this, and they did their best to stop it (though it clearly didn’t do a terribly good job of it, as evidenced by the next 100 years leading up to the civil rights movement of the 1960’s).
The 14th Amendment was specifically meant to protect all human beings in the jurisdiction of the United States from being oppressed under such laws. It is meant to prevent mob lynching because a black man dared to look at a white woman. It is meant to ensure a black man received a fair and impartial trial when accused of any crime. It is meant to ensure that no one is thrown into prison and denied their liberty without being proved guilty beyond a reasonable doubt according to due process. It is meant to protect all people, of all races and creeds from the potential abuse or oppression of the government’s power to fine (property), incarcerate (liberty), and execute (life).
With that historical context in mind, the actual meaning of the 14th Amendment becomes a bit clearer. It starts out with a statement about citizenship, that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” To us today this might seem like a bit of odd redundancy (saying that citizens are citizens), but during the reconstruction period there were millions of former slaves, recently freed. This statement granted them citizenship. They may have been freed from slavery but they were living under state governments (particularly in the south) that were hell-bent on denying the most basic rights of citizenship to them. So this first statement is the Congress telling the State governments that they are citizens, and that they can’t pretend they are otherwise.
Recognizing that, the following statement also becomes clearer, when it says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” It might be tempting to think that this is saying that no state shall deny any privilege to anyone, but that doesn’t make sense. We have countless laws which deny certain privileges to certain individuals. The law prohibits people from driving under they are 16. The law prohibits people from drinking until they are 21. If the 14th Amendment is to mean that no privileges that are afforded to anyone are to be denied to someone else, then all of these laws are unconstitutional. But it is clear that the “privileges and immunities” clause of 14th Amendment is clearly focused on citizenship. Therefore it is referring to “privileges and immunities” that are fundamental to citizenship. These are privileges such the right to vote, the right hold public office, citizenship for children born abroad, etc. The many of these were rights that many recently freed blacks were being denied during the Reconstruction period.
So what about marriage? Is marriage a fundamental right to citizenship? Not really, considering that there are plenty of citizens who are not married, and there are plenty of non-citizens who are married. It also certainly doesn’t have anything to do with the basic freedoms that citizenship is supposed to protect. In reality marriage (in the legal sense of the term, not the religious or spiritual sense of the term) is not necessary for any real freedoms. One doesn’t need a marriage license to love. One doesn’t need a marriage license to live with someone. One doesn’t need a marriage license to make a life with someone. The Supreme Court is dead wrong when it says that denying a marriage license will doom someone to a “life of loneliness”. A marriage license does not grant happiness, nor does withholding a marriage license deny happiness. The only real privilege that a marriage license grants is the right to file a joint tax return, that is hardly an essential, fundamental “privilege or immunity” of citizenship.
But, the 14th Amendment does go beyond the rights of citizenship, and extends to the most basic rights of man, saying “… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Does a marriage license provide a person with life? Does a marriage license provide a person with liberty (ie. freedom from Government restriction)? Does a marriage license provide a person with property? The answer to all of those questions is a very obvious, no. A marriage license from the state does not provide any of those. Therefore, if a marriage license does not provide life, liberty or property; then there is no way that withholding a marriage license could possibly deny anyone life, liberty, or property.
Yes, marriage (in the legal sense) provides certain benefits provided by the Government (which are not privileges associated with citizenship), and while some may be tempted to say that marriage is necessary for liberty, to quote Justice Thomas in his dissent, liberty is, “… freedom from government action, not entitlement to government benefits.” The Government can’t prevent you from holding a marriage ceremony, living a married life, raising children. But a restriction on Government intervention is not the same as an obligation of the Government to provide benefit. In truth the Government does not have to recognize marriage at all. They could say that it will not recognize marriage of any kind, and nobody’s life, liberty, or property will be deprived. Indeed, if the satisfaction of your marriage is dependent upon recognition from the Government then your marriage has some serious issues that you need to address.
But what about “equal protection”? Does defining marriage as being between a man and a woman does create “unequal protection under the law”? No, because nobody ever said that homosexuals could not get married. Such a definition of marriage does not ban anyone, gay, straight, or anywhere in the middle, from entering into such a union. It simply puts defining characteristics on what does or does not constitute a marriage. A gay man has every legal right to marry a woman as a straight man. A straight man is no more allowed to marry another man as the gay man. You may say that is ridiculous because a gay man would never want to marry a woman, but that’s not the point. Equal protection under the law does not mean equal satisfaction under the law. It only demands that the law be equally applied to everyone. The homosexual may not like marriage being defined as between a man or a woman. But just because he is not satisfied by that definition does not mean that the law is not being equally applied to him.
If a law, any law, must be all encompassing of everything, then what purpose would it serve. The legal definition of marriage must have some limitations in it. Redefining it to mean between any two people still excludes polygamy. Redefining it between any four or less people still excludes those with five or more. If the definition were to be enlarged to be a relationship between any number of people, then the definition becomes meaningless, it becomes nothing. In order for marriage to be something, it must be clearly defined what it is not, and no matter how you define that there will always be someone who feels left out. So just because someone feels the definition does not satisfy their interests, does not mean that they do not have equal protection. Otherwise any law ever written would “unequally protect” someone.
So it is clear, that marriage (in the legal sense of the term) is not a fundamental “privilege or immunity” of citizenship. It is not a necessary factor in life, liberty, or property. Defining marriage as between a man and woman is not unequal protection. There is nowhere else to look. There is nothing in the 14th Amendment that has any relevance to marriage at all.
But the Supreme Court of the United States perverted the 14th amendment and interpreted a definition of marriage from it. They looked for something in those words that was never there. It was never intended to be there by the authors of the words. It was never believed to be there by those that voted to pass and ratify it. It was never interpreted to be there for the last 147 years of US judicial history. But for the sake of a political agenda, the Supreme Court said that it was there.
The Supreme Court made a law say something that the law does not say. There is a term for that: Legislating from the bench.
Creating a new definition of marriage from the words of the constitution, that have no bearing on marriage whatsoever, is in effect creating an entirely new law. In doing so the United States Supreme Court has appointed itself as law maker. That is what really terrifies me, and it should terrify you too.
One thing the Constitution is very clear about is that the Supreme Court does not have the authority create laws. That is the job of legislative branch of government. That is the job of the Congress, comprised of the Senate and the House of Representatives. The Supreme Court’s only job is to provide rulings on specific cases, based on what the law says. The minute that the Supreme Court usurps the role of law maker, they are overstepping their boundaries as laid out in the Constitution. And those boundaries are not arbitrary; they are put in place to protect the rule of democracy.
The job of law maker is given to the Congress, because the members of Congress are elected by the people, to represent the people, and to serve the people. They serve for limited periods of time before they must be re-elected, specifically to ensure that democracy, the rule of the people, remains intact. Between the Senate and the House of Representatives there are hundreds of members of Congress, so that the power of legislation is not held by too small of a group of individuals.
The members of the Supreme Court however, are not elected. They are appointed to their position, and there is no limitation the time that they serve. Their appointments are for life, or until such time they choose to step down. And there are only nine of them, and only five of them must agree to make a ruling. There are good reasons that Supreme Court is structured the way it is, but this structure is specifically why they are not meant to be law makers, because there is nothing democratic about the Supreme Court. The moment that the Supreme Court decides to create law, is the moment that democracy (the rule of the people) dies, and tyranny (the rule of the few) is born.
So why is everyone celebrating the ruling from the Supreme Court? Why is my news feed buzzing with people declaring that this is a “Great Day for America”?
I don’t care if you support Gay rights or not, you should be terrified of a Supreme Court that can create law by perverting the Constitution to say something that it has never come even remotely close to saying. You should be terrified because democracy is giving way to tyranny. Just because in this particular instance you like what the tyrant has to say does not make what he says any less tyrannical. You have no guarantee that the next time he speaks that you will like what he has to say.
The ruling on Friday was supposedly a great victory for Gay rights. But if the victory comes at the expense democracy, then the victory is a hollow one.
Nearly every debate on the issue of same sex marriage will inevitably boil down to the same sex advocate stating that “The majority of people support it.” If that’s the case, then why not do it the right way?
If you want the Constitution to protect the right for same sex marriage, then there is a right way to do it, it’s called a Constitutional Amendment. The Congress could propose, vote upon, and pass an Amendment to the Constitution that would give such a right, and it could be sent to the States for ratification. This is how the democracy in our Constitutional Republic is supposed to work. If the majority of the people truly want it, their Congressmen will support, and their State legislatures will ratify it.
If same sex marriage were to be made the law of the land in that way, I would still be opposed to it, for the same moral, spiritual, and Biblical reasons that I always have. But I would at least take solace in knowing that it was passed in the right way. As much as I would grieve for the spiritual state of our country, I would be comforted to know that democracy still meant something, and that we were still a nation of the people, by the people, and for the people.
Had it been done properly, perhaps the “majority opinion” of the people would have legalized same sex marriage. Perhaps the advocates of Gay rights would feel that their victory was legitimate. But now we will never know. Instead the “victory” that so many are blindly celebrating is but another example of a few dictating their word to the masses. And what once was the world’s greatest experiment of democracy is crumbling away, leaving us with a nation of the few, by the few, and for the few. And that is a tragedy, no matter what your view on same sex marriage.
May God help us.
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