Monday, August 25, 2008

The Arizona Marriage Amendment -- What is the challenge?

I have been discussing the California Court's opinion in

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

It is the nature of judicial writing that the court would like to make it appear that the decision was inevitable. The judges don't want to appear to be making new law so that they can avoid the criticism that they are "activist" judges with an agenda. It is rare that the Court will be so open, as the California Court here, as to allow the readers to see through the appearances and understand that the judges really are setting forth an agenda contrary, to not just the position of the losing party, but a position that is in opposition to the majority of society. The only legal way to curb judge made law is through legislation.

The California Court is not just in opposition to societal norms, the California Court is actively attacking the entire concept of marriage. As stated in the Divine Institution of Marriage (see link on this blog):

"Marriage is not primarily a contract between individuals to ratify their affections and provide for mutual obligations. Rather, marriage and family are vital instruments for rearing children and teaching them to become responsible adults. While governments did not invent marriage, throughout the ages governments of all types have recognized and affirmed marriage as an essential institution in preserving social stability and perpetuating life itself. Hence, regardless of whether marriages were performed as a religious rite or a civil ceremony, married couples in almost every culture have been granted special benefits aimed primarily at sustaining their relationship and promoting the environment in which children are reared. A husband and a wife do not receive these benefits to elevate them above any other two people who may share a residence or social tie, but rather in order to preserve, protect, and defend the all-important institutions of marriage and family."

It is apparent that the action taken by the California Court is not benign. It is not merely an extension of the law but a radical and direct attack on the sanctity of marriage. Even though the language of the decision seems scholarly and constantly appeals to prior legislation and judicial decisions, it is unquestionably not benign.

Once again to quote The Divine Institution of Marriage:

"In recent years in the United States and other countries, a movement has emerged to promote same-sex marriage as an inherent or constitutional right. This is not a small step, but a radical change: instead of society tolerating or accepting private, consensual sexual behavior between adults, advocates of same-sex marriage seek its official endorsement and recognition."

This statement is not a narrow minded reaction to a liberal position taken by the California Court, it is a statement of fundamental belief. A belief held by millions of people throughout the world. As it states in The Divine Institution of Marriage:

"Legalizing same-sex marriage will affect a wide spectrum of government activities and policies. Once a state government declares that same-sex unions are a civil right, those governments almost certainly will enforce a wide variety of other policies intended to ensure that there is no discrimination against same-sex couples. This may well place “church and state on a collision course.”"

More later.

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