Some argue that since marriage is not a right guaranteed or granted by the Constitution, the federal government has no authority regarding its regulation or construction. According to the 10th Amendment, this leaves this power exclusively with the individual states. A lot of people support this reasoning. That’s why when the courts overrule a law that has been established by a state’s duly elected legislative body, or one that has the support of a majority of the citizens, a good case can be made that it has overstepped its authority.
Of the three areas the 14th Amendment addresses in its “equal protection” clause, two do not apply to the topic at hand. The other can be interpreted broadly enough, or not, to suit one’s personal preference. Yes, judges are human and not immune from personal biases that result in “judicial activism,” especially when the stakes are high.
However, I would take it a step further. The Declaration of Independence states we are endowed by our Creator with certain “unalienable” rights (these are absolute, non-transferable, of divine origin, and they exist independent of any governing body). These unique rights are based on a recognition of Natural Law – “the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is evaluated and governed.” Accordingly, those moral principles were defined by the Creator, not man.
The institution of marriage, just like the family unit, predates government. Its definition is a component of Natural Law. Therefore, no political group or governmental agency has the authority to redefine, alter or abolish what it did not create. This is the problem behind the argument that the definition of marriage should be decided by state legislatures, the courts, or even the electorate at large. This approach endorses the idea that these groups have the authority to change something they do not. Once Natural Law is set aside, we no longer have any guaranteed rights; we only have what the collective will of the electorate grants us. There is very little stability in a society governed by a philosophy of moral relativism. Whatever the rules are today, they can be turned on their head tomorrow.
People don’t need government to grant them permission to be involved in meaningful relationships. And there are ways to seek the benefits same-sex couples desire, without unraveling and or undermining traditional marriage. Despite claims to the contrary, this appears to be what will happen.
This writer, Jennifer Roback Morse, raises a valid point: “Advocates of same-sex ‘marriage’ present the idea as a step forward for tolerance and respect. But legalizing same-sex ‘marriage’ is not a stand-alone policy, independent of all the other activities of the state. Once governments assert that same-sex unions are the equivalent of marriage, those governments must defend and enforce a whole host of other social changes. Unfortunately, these government-enforced changes conflict with a wide array of ordinary liberties, including religious freedom and ordinary private property rights.
“Marriage between men and women is a pre-political, naturally emerging social institution. Men and women come together to create children, independently of any government. The duty of caring for those children exists even without a government or any political order. Because marriage is an organic part of civil society, it is robust enough to sustain itself, with minimal [or no] assistance from the state.
“By contrast, same-sex ‘marriage’ is completely a creation of the state. The state must [intervene and] create parentage for the same-sex couple. For the opposite-sex couple, the state merely recognizes parentage.
“The fact that opposite- and same-sex couples are different in significant ways means that there will always be scope for the state to expand its reach into more and more private areas of more and more people’s lives. Advocates of same-sex ‘marriage’ insist that theirs is a modest reform: a mere expansion of marriage to include people currently excluded. But the price of same-sex ‘marriage’ is a reduction in tolerance for everyone else, and an expansion of the power of the state.”
As the power of the state grows, regardless of the rationale given, liberty diminishes. My position will always be to support liberty.
We hear far too many clamoring for more “rights” and not nearly enough advocating for more “responsibility.” Too much of the one, and not enough of the other, is hazardous to the health and stability of any society.
Gregg Stucki lives in Moab and serves on the Moab City Council.
“Once Natural Law is set aside, we no longer have any guaranteed rights; we only have what the collective will of the electorate grants us. There is very little stability in a society governed by a philosophy of moral relativism. Whatever the rules are today, they can be turned on their head tomorrow.”