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Trade Paperback
160 pages
Sep 2004
Broadman & Holman

Same-Sex Marriage: Putting Every Household at Risk

by Mathew D. Staver

Review  |   Author Bio  |  Read an Excerpt

Although for different reasons, same-sex marriage opponents and some states’ rights advocates oppose amending the United States Constitution to protect marriage between one man and one woman.

I too believe in states’ rights, but I strongly support amending our Constitution to protect traditional marriage. Marriage between one man and one woman is and always has been a federal matter, and the very act of amending the Constitution is an exercise in states' rights.

To sanction same-sex marriage would be to say that there is no relevance to gender, and thus result in the abolition of gender. Indeed, many same-sex and transsexual proponents advocate the abolition of gender, stating that the concept of male and female is an outdated, stereotypic model that needs to be abolished.

Society has never supported every conceivable combination of human relationships. To the contrary, marriage has always been a national policy between one man and one woman.

Utah’s battle over polygamy is instructive for our purposes. In 1862, the United States Congress passed the Morril Act, which prohibited polygamy in the territories, disincorporated the Mormon church, and restricted the church’s ownership of property.

In Reynolds v. United States, the United States Supreme Court upheld the Morril Act, stating that polygamy has always been “odious” among the Northern and Western nations of Europe, and from “the earliest history of England polygamy has been treated as an offense against society.”

The court noted that “it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.”

In 1882, Congress passed the Edmunds Act, which prohibited polygamists from holding political office and disqualified them from serving on juries. Then in 1887, Congress passed the Edmunds-Tucker Bill, which required, among other things, wives of polygamous relationships to testify against their husbands. On October 6, 1890, the Mormon church officially approved a Manifesto that required the church no longer sanction polygamous marriages.

As a condition to be admitted to the Union, the United States Congress required the inclusion of anti-polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah. For Arizona, New Mexico and Utah, the Enabling Acts permitting these states to be admitted to the Union required that the anti-polygamy provisions be “irrevocable,” and that in order to change their laws to allow polygamy, each state would have to persuade the entire country to change the marriage laws.

Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Ohio into the Union, found its constitution to be “republican in form and…in conformity with the Constitution of the United States.” To this day, Arizona, Idaho, New Mexico, Oklahoma and Utah state in their constitutions that polygamy is “forever prohibited.”

The Supreme Court has ruled that a juror who has a conscientious belief that polygamy is right may be challenged for cause in a trial for polygamy. Anyone who practices polygamy is ineligible to immigrate to the United States.

If same-sex marriage were sanctioned, it would be virtually impossible to ban polygamy. Moreover, allowing same-sex marriage would likely take us down the slippery slope to legalize polygamy and polyamory (group marriage).

When Tom Green was put on trial for polygamy in Utah in 2001, several articles and editorials appeared in various newspapers supporting the practice of polygamy (The Village Voice, Washington Times, Chicago Tribune, and the New York Times).

Although the ACLU initially tried to downplay the idea of the slippery slope between gay marriage and polygamy, the ACLU itself defended Tom Green during his trial and declared its support for the repeal of all “laws prohibiting or penalizing the practice of plural marriage,” and Steven Clark, the director for the Utah ACLU stated, “Talking to Utah polygamists is like talking to gays and lesbians who really want the right to live their lives.”

Preserving traditional marriage was of such paramount importance that a number of the states could not be admitted to the Union without first banning polygamy. The United States Supreme Court ruled that Congress had authority to prosecute polygamy under the Mann Act. While states have been permitted to regulate the edges of marriage, such as the ceremonies, dissolution, support, custody and visitation, the states have never been allowed to modify its very essence – the legal union of one man and one woman.

Marriage will be national one way or another. Either the courts will dictate marriage policy or the people will. If a federal constitutional amendment is not enacted, the courts will no doubt alter traditional marriage policy.

Last year four of the seven state court justices in Massachusetts incredibly concocted a right to same-sex marriage in that state’s constitution. The constitution of Massachusetts was drafted by none other than John Adams, our first Vice President and second President of the United States, who himself was a devout Christian.

Acknowledging that neither the history of the constitution nor the state statutes envisioned same-sex marriage, four of the justices nevertheless imposed their own will upon the entire state. The citizens of Massachusetts were, therefore, left with no other choice but to overturn this radical decision by a state constitutional amendment.

On September 21, 1996, Congress passed the Federal Defense of Marriage Act. This law declared that no state or territory is required to recognize a same-sex marriage sanctioned by another state or territory. While this law is designed to insure that the sovereignty of a state is not overridden by another state’s same-sex marriage law, there is no guarantee that this law will be upheld by the courts.

Considering the judicial activism of the Massachusetts Supreme Court, we dare not trust the courts to hold sacred the institution of marriage. Considering the mobility and the impact that marriage has on transactions between the states, we would find ourselves broiled for years in endless litigation over whether one state should accept the same-sex marriage sanctioned by a sister state.

Marriage is not something with which we should experiment, and it is certainly not amenable to having same-sex marriage in some states but not in others. Whether imposed judicially or otherwise, marriage, in whatever form, will be, and always has been, national.

The only way for the people in America to have a voice in marriage is to exercise their right under the Constitution to enshrine marriage once and for all between one man and one woman. To do so requires two-thirds of the U.S. House and Senate to pass an amendment, and then three-quarters of the states (38) must ratify the amendment through their state legislatures.

The required number of states has already gone on record since 1996 declaring their support for traditional marriage by specifically enacting legislation protecting marriage between one man and one woman, and expressly banning same-sex marriage.

During this time a number of states amended their state constitutions. It is only by the passage of a federal marriage amendment that the states may protect the will of the people. Marriage is clearly too important to be left to the whim of the courts. It has been and must continue to be national, and it must always be between one man and one woman.

Some argue that the government should have nothing to do with marriage, and thus should no longer license marriage. In this way, marriages could consist of either private religious or secular ceremonial services, but with no state sanction. While this argument might have some appeal on the surface, it fundamentally misunderstands the importance of marriage and its impact on society.

The state has always been empowered to regulate to protect the public health and welfare of its citizens. Thus, we have laws protecting our personal security and property rights. Although consensual, we have laws regarding prostitution, gambling, and private drug use. The reason society has chosen to regulate these areas of our lives is because, although appearing to be somewhat private, these private acts have public consequences. The same is true with marriage.

Marriage is not merely a personal, private act. Children are part of marriage, and as such, the greater society is affected. It is neither wise nor desirable to deregulate marriage because, in so doing, our society would indeed suffer. No, marriage is a public good, and it is precisely one of the areas in which the government should and must continue to regulate in order to protect the public good.

In their book, The Case for Marriage, Linda Waite and Maggie Gallagher write:

“Marriage is not merely a private taste or a private relation; it is an important public good. As marriage weakens, the costs are borne not only by individual children or families but by all of us taxpayers, citizens, and neighbors.

"We all incur the costs of higher crime, welfare, education and healthcare expenditures, and in reduced security for our own marriage investments. Simply as a matter of public health alone, to take just one public consequence of marriage's decline, a new campaign to reduce marriage failure is as important as the campaign to reduce smoking.”

Listen to the story of Jackii Edwards who summarized her experience of being raised by a lesbian mother: “We constantly wonder if we will eventually become gay. There is humiliation when other kids see our parents kissing a same-sex lover in front of us. Trust me, it's hard on the children, no matter how much they love their gay parent. The homosexual community may never admit it, but the damage stemming from their actions can be profound.”

Sanctioning same-sex marriage would have a profound destabilizing effect on the health, welfare, education, and morals of the country. We should not play Russian roulette with marriage. We must draw a line in the sand and preserve marriage once and for all between one man and one woman.