The Constitution is not a piece of super-legislation to be amended by factions, or even majorities, who, from time to time, don’t get what they want. Nor is it some type of referendum on moral or social or religious institutions or beliefs. It is a sacred legal document which defines the relationship between the Government and its sub-parts, and the Individual. It stands for broad enduring principles, not ad hoc pronouncements or proscriptions.

Free Speech. Due Process. Equal Protection. Trial by Jury. The Right to Bear Arms.

No Gay Marriage?

Come on.

It's inconsistent with the entire structure of the Constitution, which sets forth the limited powers of the Federal Government, and then places even further limitations on those powers by protecting the individual from the tyranny of the majority. So how would such an Amendment, "defining 'marriage'", fit into that structure?

It doesn’t.

If the Federal Government believes that it is so important to define marriage as a union between a man and a woman, the appropriate place to do that would seem to be in the U.S. Tax Code. Marriage confers various legal benefits, some Federal, some State. If the Federal Government wants to "strengthen the institution of marriage", then it can choose to bestow Federal benefits as it sees fit.

I realize that this doesn’t solve the “problem” of allowing States to define marriage differently, but the system of Government which we live under is designed precisely to give such latitude to the States. (And, of course, it is this structure of Federalism or “States Rights” which some “conservatives” have been talking up, when it suits them, for years.) The definition of marriage is, in the first instance, a Religious matter. No Constitution or Law can change what Marriage is. But, to the extent marriage also confers legal status or benefits, this has always been an issue left to the province of the States.

Why should the people in Wyoming be able to tell the people in Florida what they can and can’t do with respect to their own citizens?

What if, over the next twenty years, sentiments change, and the majority of the country believes that homosexual marriage is good. Should they be able to tell the people of Wyoming that they are required to expand their definition of marriage to include gays?

What’s good for the goose is good for the gander. And times change. Which is precisely why the Constitution takes, and should continue to take, a flexible and ultimately neutral approach.

The second problem with the proposed Amendment is that it seems small-minded. It doesn’t seem to appeal to our nobler instincts. It doesn't seem motivated even by self-interest. But perhaps by fear, or in the worst case, spite.

The third and related problem is that it seems so short-sighted. While marriage, as noted, is defined in the first instance as a religious matter, ultimately no one can define marriage except for the two people who are engaged in it. If you think your marriage is weak, I doubt it’s because of anything that’s happening between a couple of gay people that you don’t even know and will likely never meet. The threats to a marriage, and to the institution of marriage generally, are infidelity, spousal abuse, child abuse, abuse of drugs and alcohol, teen pregnancy, loss of intimacy, career changes, tragedy, and divorce. If you think these threats are going to disappear simply by defining “marriage” nationally as the union between a man and a woman, you seem a little overly optimistic, at best.

It’s part of the same false illusion that we can continue to take the easy way out. Do a quick fix. Avoid focusing on the problem. It’s a scapegoat. Adopted by the very same people who are always preaching about “personal responsibility.” They want to tell you, in this case, that the problem is "out there" somewhere. With somebody else. Gays. TV. Culture. Activist judges. Society.

No one can define marriage except for the two people who are parties to it.

I don’t care whether gay people get married or not. That’s why it’s not a Political issue. It doesn’t affect me. It only affects them.

I should only vote for or against things that affect me.

And, in my opinion, you should generally do the same.



Stephen J. Herman, Esq.

[Note - The views expressed on this political blog / blawg relating to gay marriage, Constitutional Law, and other issues are the personal observations of Steve Herman as a practicing attorney and are not intended to represent the views of Herman Herman Katz & Cotlar, Herman Mathis, LTLA, LAJ, ATLA, AAJ, Public Justice, TLPJ, Loyola Law School, the Civil Justice Foundation, or any other organization.]

I dunno. Your post is interesting but I'll respectfully disagree with much of it.

1. Marriage has religious significance, yes, but the social institution of marriage is written into the nature of humankind. We are all borne of man and woman; as social beings we adapt, culturally, to our human physiology (given to us by God, The Universe, or Something Beyond Ourselves) and basic biology. Likewise our freewill is not something originating with ourselves but freewill is intrinsic to the human individual. Human nature does not evolve; however each generation teaches subsequent generations. That comes from the example of history -- recent and ancient -- but also it comes at the knee of our parents and their parents. This is a universal aspect of human society. But, yes, freewill is individualized in the here and now.

As individuals we are prone to narrowed-self-interest; but marriage is a social institution with public meaning. The range of religions, like the range of cultures, provides for variety in the protocols or regulations of the outer edges of this basic unit of humankind -- marriage, the family. But the basic unit begins with the inescapable fact that humankind is two-sexed and as social beings we are dependant on one another.

That dependancy changes as we mature; we might become more depended on than dependant; but throughout the range of religions and cultures there is a basic need for the combination of two things -- the integration of the sexes (man and woman together in conjugality) and responsible procreation (mating, childbearing, and parenting). Marriage is the unique social institution which bonds father with mother and their children. It is also the first community for the individual; preferential treatment of marriage arises from the social need for good governance, and that begins at home. This is the bedrock of society.

The home could be of any religion or it could be agnostic or athiestic or disinterested in all matters spiritual. No matter. Marriage is a public idea that is intrinsic to liberty. Prefential treatment of marriage is a common good. Where the bedrock is undermined, society suffers.

2. On the other hand, the one-sex-short arrangement (OSSA) is not a social norm. It barely has a foothold on the margins of the adult homosexual population -- here or anywhere else. Sex integration and responsible procreation are extrinsic to OSSA. It would be an error of governance to merge OSSA with State recognition of the social institution of marriage. Societies have long existed without preferential treatment of OSSA as if it was marriage. Yet, the human dignity of the individual is worthy of respect and protection by society -- through the State and nongovernmental agencies -- and accomodation of nonmarital alternatives is just. Provided that such accomodation is not confused -- merged -- with marital status.

3. In our form of government we acknowledge self-evident truths and inalienable rights and liberties. We have ratified various amendments with that acknowledgement. The framework of the Constitution (also ratified) protects these liberties in practical ways. The marriage idea is presupposed in that structure. No society has ever survived without the integration of man and woman and without the bonding together of father and mother with their children.

4. This is not redefinable by religion nor by this or that particular couple. The Marriage Amendment reaffirms self-evident truth. Just as the original amendments boldly stated the truth, this generation would declare the man-woman criterion of State recognition of marriage to be truthful. While legislatures could accomodate the one-sex-short arrangement, no judiciary could construe such an arrangement to be merged with the social institution of marriage.

5. The Marriage Amendment is a Good Governance Amendment as per the preamble of the US Constitution.

6. This is not small-minded. It is big picture.

7. The public meaning of marriage touches us all. The "gay marriage" project seeks to appropriate the social esteem for marriage, precisely because the goal is to change the public meaning of State recognition of marriage.

The legal incidents of marital status form the legal shadow; the Marriage Amendment is meant to clarify that the legal shadow is not something cast by OSSA; it is a shadow cast by societal preference for the institution of marriage. The man-woman criterion signifies the integration of the sexes -- combined with responsible procreation.

All of us come from man and woman; all of us are dependant on an integrated society; all of us have responsiblities toward one another and toward future generations. Our liberty does not depend on the State creating some legal status purely for "here and now" needs of adults who engage in sexual relations. The State does not regulate romance nor sex play. And there is no State interest in promoting sex-segregation where sex integration is integral.

8. In the past some states overlayed racism on marriage. This system selectively segregated the sexes. There is one human race; and it is two-sexed. Racism is extrinsic to State recognition of marriage; sex integration is intrinsic to it.

Well, that's my lengthy response to your well-written post. I hope I have not meandered too far from the points you raised.

You say you do not care because it does not affect you, well I really wish more people would realize it doesn't affect anyone but gays. Imagine telling Betrand Russell or C.S. Lewis that the governments recognition of the union between two people somehow detracts from the symbolism of your own relationship simply becasue those two people are of the same sex.
I'm young. I am young enough to know the childeren of these people, or at least the childeren of the demographic associated with the anti-same sex view. I've done enough illicit drugs with these kids and I've had enough unholy sexual relationships with their daughters to see quite clearly that kids can be very screwed up without gay parents.
So if it's gay child rearing that bothers you as an anticipated consequence of gay marriage, relax. I'm sure you're kids are as messed up as theirs will be.
I suspect that it's really just the sight of two men holding hands in public that makes conservatives sick. I would argue that this is misguided nastalgia and belongs right there with a distaste for niggers who can read.
grow up.

Your view of the Constitution is a sound one on this issue, but I would suggest that you go one step further. Those who support bans at the state level still make this a political question, just in a different forum, and by invoking state action come perilously close to involving the federal judiciary. It seems ironic that those who support limited government support intervention on a decision that is, as you state, between two individuals. The State should not be an instrument of discrimination. If religious entities wish to celebrate the sacrament of marriage only between heterosexual couples then that is fine, but to require the State to observe such a limitation is fundamentally wrong.

I agree with all of you who wonder why it matters. Who cares if gays get married. It does not affect you. I also agree that telling gays that they can not get married is like telling you what you can and cannot do. How would you like if the government told you that you could not get married with the man or woman that you love.
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