Friday, August 29, 2008

The Marriage Amendment in Arizona -- The California marriage cases

I am continuing my discussion of the California Marriage Cases:

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

The California Court plays lip service to the fundamental nature of the marriage relationship. For example, at page 63, the Court includes the following quote in a footnote;

"It is noteworthy that the California and federal Constitutions are not alone in recognizing that the right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people. Article 16 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, provides: “Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. . . . [¶]. . . [¶] The family is the natural and fundamental unit of society and is entitled to protection by society and the State.” Numerous other international human rights treaties similarly recognize the right “to marry and to found a family” as a basic human right (Internat. Covenant on Civil and Political Rights, art. 23; see European Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 12; Amer. Convention on Human Rights, art. 17), and the constitutions of many nations throughout the world explicitly link marriage and family and provide special protections to these institutions. (See Wardle, Federal Constitutional Protection for Marriage: Why and How (2006) 20 BYU J. Pub.L. 439, 453-461 [describing constitutional provisions of other nations].)"

The California Court then substitutes in its version of the meaning of the language to argue that it is actually upholding the institution of marriage rather than attacking it. The California Court's attitude towards marriage is revealed in this statement:

"Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple."

In other words, the rights of the individuals "override" those of society as a whole.

The Court's arguments include references to the marriage as the basis for the establishment of the family unit. The Court says: "Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one’s liberty and personal autonomy."

Whose children are they talking about? At least one member of a same-sex domestic partnership, cannot have a biological relationship with the other's children. It is a physical fact that children in such a relationship must come from outside that relationship. No changing of labels will change that fundamental fact.

As stated in The Divine Institution of Marriage: "Strong, stable families, headed by a father and mother, are the anchor of civilized society. When marriage is undermined by gender confusion and by distortions of its God-given meaning, the rising generation of children and youth will find it increasingly difficult to develop their natural identity as a man or a woman. Some will find it more difficult to engage in wholesome courtships, form stable marriages, and raise yet another generation imbued with moral strength and purpose." It is a mockery of the institution of the family and of marriage itself to even assume for the purpose of an argument that redefining marriage would not have a dilatory effect on the entire society.

Again to The Divine Institution of Marriage: "It is true that some same-sex couples will obtain guardianship over children –through prior heterosexual relationships, through adoption in the states where this is permitted, or by artificial insemination. Despite that, the all-important question of public policy must be: what environment is best for the child and for the rising generation? Traditional marriage provides a solid and well-established social identity to children. It increases the likelihood that they will be able to form a clear gender identity, with sexuality closely linked to both love and procreation. By contrast, the legalization of same-sex marriage likely will erode the social identity, gender development, and moral character of children. Is it really wise for society to pursue such a radical experiment without taking into account its long-term consequences for children?"

Even though proponents of same-sex marriages can argue that other societies have tolerated that relationship, the tolerance has never been to the extent of displacing the traditional family and marriage.

More later.

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