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Who
Will Define Marriage, the People or the Courts?
As
momentum grows for federal action to protect traditional marriage,
critics of the effort have asked whether defense of marriage is
a federal issue at all, or one better left to the states to decide.
This important question was addressed Wednesday, Mar. 3, at a sub-committee
hearing of the Senate.
Opening
Statement of Senator John Cornyn at Senate Hearing
An
on-going national conversation about the importance of marriage
intensified recently when four Massachusetts judges declared traditional
marriage a “stain” on our laws that must be “eradicated.” Since
then, Americans have witnessed startling and lawless developments
nationwide—from Boston to San Francisco, and numerous points between.
Those
who saw our hearing in September [read Meridian’s report on that
hearing here]
know that today’s debate over marriage was actually sparked last
June, when the U.S. Supreme Court issued its controversial ruling
in Lawrence v. Texas [Read Meridian’s editorial commentary
on that court decision here].
In the hands of activist judges like those in Massachusetts, California,
and elsewhere, part of the rationale adopted in Lawrence, one completely
unnecessary to reach the result, presents a serious threat to traditional
marriage laws across the nation. That’s not just my conclusion—it’s
the conclusion of legal experts, constitutional scholars, and Supreme
Court observers across the political spectrum.
It’s
important to note at the outset: The American people didn’t initiate
this discussion, nor did members of Congress or either party. Let’s
be clear and honest about this. The only reason we are discussing
this issue today is the work of aggressive lawyers, and a handful
of activist judges.
Across
diverse civilizations, religions and cultures, humankind has consistently
recognized the institution of marriage as society’s bedrock institution.
After all, as a matter of biology, only the union of a man and a
woman can reproduce children. And as a matter of common sense,
confirmed by social science, the union of mother and father is the
optimal, most stable foundation for the family and for raising children.
Unsurprisingly,
then, traditional marriage has always been the law of all 50 states.
At the national level, overwhelming congressional majorities—representing
over three-fourths of each chamber—joined President Clinton in codifying
a federal definition of marriage by enacting the bipartisan Defense
of Marriage Act of 1996.
In
light of this extraordinary consensus, it is offensive for anyone
to charge supporters of traditional marriage with bigotry. Yet
that is exactly what activist judges are doing today: accusing
ordinary Americans of intolerance, while abolishing American traditions
by judicial fiat.
Renegade
judges (and some local officials) are attempting to radically redefine
marriage. Marriage laws have already been flouted in Massachusetts,
California, New Mexico, and New York. Lawsuits seeking the same
result have also been filed in Nebraska, Florida, Indiana, Iowa,
Utah, Georgia, Arizona, Alaska, Hawaii, New Jersey, Connecticut,
and Vermont, as well as my home state of Texas.
Disregarding
the democratic process, four judges in Massachusetts concluded that
the “deep-seated religious, moral, and ethical convictions” underlying
traditional marriage is “rooted in persistent prejudices” and “invidious
discrimination,” and not the best interest of children. They even
suggested abolishing marriage outright, stating that “if the Legislature
were to jettison the term ‘marriage’ altogether, it might well be
rational and permissible.”
Apologists
for the Massachusetts court lamely contend that democracy and marriage
can be restored in that state. But not until 2006—and only through
a process citizens shouldn’t have to endure just to preserve current
law. Moreover, the problem is not limited to Massachusetts. In
California, courts have refused to enforce that state’s law defining
marriage as between a man and a woman, against a lawless mayor.
New Mexico, New York, and Illinois officials have followed. And
just this morning, I’ve read that officials in Oregon are going
to join this trend.
Defenders
of marriage and democracy alike recognize that this is a serious
problem—and indeed a national problem, requiring a national solution.
Congress
recognized the national importance of marriage in 1996 by codifying
a federal definition of marriage. And most officials on both sides
of the aisle continue to express their support for traditional marriage.
But words are not enough to combat judicial defiance. If elected
representatives are to retain their relevance in a democracy—indeed,
if we are to remain faithful to our national creed of government
of the people, by the people, and for the people—words must be joined
by action.
True,
the Constitution should not be amended casually. But serious people
have reluctantly recognized that an amendment may be the only way
to ensure survival of traditional marriage in America. Why is an
amendment necessary? Two words: activist judges.
Legal
experts across the political spectrum agree the Lawrence
decision presents a federal judicial threat to marriage. Harvard
Law Professor Laurence Tribe has said “you’d have to be tone deaf
not to get the message” that Lawrence renders traditional marriage
“constitutionally suspect.” According to Tribe, the defense of
marriage is now a “federal constitutional issue,” and he predicts
the U.S. Supreme Court will eventually reach the same conclusion
as the Massachusetts court.
Tribe’s
predictions are confirmed, of course, by the Massachusetts ruling,
which not only invalidated that state’s marriage law, but also suggested
that Lawrence might be used to threaten laws across the country—including
the federal Defense of Marriage Act. Tribe is also jointed by members
of Congress who argue that federal law is “unconstitutional.”
Moreover,
constitutional scholars predict that Nebraska--which has approved
a state constitutional amendment defending marriage—may soon see
that amendment invalidated on federal constitutional grounds in
a pending federal lawsuit. Another federal suit has been filed
in Utah to establish a federal constitutional right to polygamy
under Lawrence.
The
only way to save laws deemed “unconstitutional” by activist judges
is a constitutional amendment. Indeed, we have ratified numerous
amendments as a democratic response to judicial decisions before—including
the Eleventh, Fourteenth, Sixteenth, Nineteenth, Twenty-Fourth,
and Twenty-Sixth amendments…
Throughout
the nation, children are being raised in nontraditional environments—by
foster parents, by single parents, by grandparents, uncles and aunts…We
know they are doing the best job they can. We can respect the hard
work that they are doing, while at the same time still adhering
to the dream that we have for every child—which is a mother and
a father in an intact family.
In
1996, Senator Kennedy pointed out that “there are strongly held
religious, ethical, moral beliefs that are different from mine with
regards to the issue of same-sex marriage which I respect and which
are no indications of intolerance.” I hope that that spirit continues
today. Millions of Americans who support the traditional institution
of marriage should not be slandered as intolerant. The institution
of marriage was not created to discriminate or oppress – it was
established to protect and nurture children.
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© 2004 Meridian
Magazine. All Rights Reserved.
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