Monday, September 1, 2008

The Arizona Marriage Amendment -- Why is it necessary?

We are back to the California marriage case:

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

The California Court states: "The question of access to civil marriage by same-sex couples ‘is not a matter of social policy but of constitutional interpretation.’ [Citation.] It is a question for this Court to decide.” (Id. at pp. 230-231 (conc. & dis. opn. of Poritz, C.J.). As noted generally by Professor Jesse Choper, “the Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience.” (Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) p. 167.)" See page 110.

The question of the power of the judiciary to make laws is a fundamental issue in American government.

As the California Court notes in a footnote:
"At this time, only six jurisdictions (Massachusetts and five foreign nations — Canada, South Africa, the Netherlands, Belgium, and Spain) authorize same-sex couples to marry. Of these six jurisdictions, three (Massachusetts, Canada, and South Africa) arrived at that position through judicial decision (Goodridge v. Dept. of Pub. Health, supra, 798 N.E.2d 941; Halpern v. Canada
(Ont.Ct.App. 2003) 65 O.R.3d 161; EGALE Canada, Inc. v. Canada (B.C.Ct.App. 2003) 225 D.L.R.4th 472; Hendricks v. Quebec (Que.Super.Ct. 2002) R.J.Q. 2506; Minister of Home Affairs v. Fourie (S.Afr.Const.Ct. 2006) (3) BCLR 355), and three (the Netherlands, Belgium, and Spain) adopted that position legislatively, without compulsion or direction from a judicial decision. (Netherlands: Civ. code, art. 30 [as amended Dec. 21, 2000]; Belgium: Civ. code, art. 143 [as amended Feb. 13, 2003]; Spain: Civ. code, art. 44 [as amended by law 13/2005, July 1, 2005].) In Canada and South Africa, after the judiciary invalidated marriage statutes limiting marriage to opposite-sex couples, the legislative branch enacted laws complying with the judicial decisions. (Canada: Civil Marriage Act, 2005S.C., ch. 33; South Africa: Civil Union Act 2006 (art. No. 17. 2006).) Although to date the Supreme Judicial Court of Massachusetts is the only state high court in this nation to have found a statute limiting marriage to opposite sex couples violative of its state constitution, we note that in each of the other instances in which a state high court has addressed this issue in recent years, each decision rejecting the constitutional challenge was determined by a divided court, frequently by a one-vote margin. (See, e.g., Conaway v. Deane, supra, 932 A.2d 571 [Md.: four-to-three decision]; Hernandez v. Robles, supra, 855 N.E.2d 1 [N.Y.: four-to-two decision]; Andersen v. King County, supra, 138 P.3d 963 [Wn.:
five-to-four decision]; see also Lewis v. Harris, supra, 908 A.2d 196 [N.J.: court unanimously concluded that same-sex couples are constitutionally entitled to the rights and benefits of marriage, and three of the seven justices further concluded that denying such couples the designation of marriage necessarily would violate the state constitution].)" See pages 114 and 115.

The California Court explains:

"As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

In other words, the California Court is placing the rights of same-sex couples to have their relationship called a "marriage" on the same basis as the freedom of speech, religion and assembly!! If you understand this position, you can see that the only way to limit the courts' continued expansion of these so-called rights, is at the constitutional level. Only if the individual constitutions of the states, and perhaps of the United States itself, are changed to eliminate the possibility of the court extension of this doctrine, will there be any chance of limiting it. The California Court recognizes the serious challenge their position is to traditional religion and states, in what can be considered dicta, as follows:

"Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)"

In light of my previous comments, it is also interesting that the California Court extends its concern to the "same-sex couples and their children." At the risk of repetition, same-sex couples do not have children in the biological sense and the fact that our legal system allows same-sex couples to have custody of some one else's child cannot change that fact. The California Court disposes of this issue in a footnote:

"Contrary to the contention of the Proposition 22 Legal Defense Fund and the Campaign, the distinction in nomenclature between marriage and domestic partnership cannot be defended on the basis of an asserted difference in the effect on children of being raised by an opposite-sex couple instead of by a same-sex couple. Because the governing California statutes permit same-sex couples to adopt and raise children and additionally draw no distinction between married couples and domestic partners with regard to the legal rights and responsibilities relating to children raised within each of these family relationships, the asserted difference in the effect on children does not provide a justification for the differentiation in nomenclature set forth in the challenged statutes."

The position of The Divine Institution of Marriage is clear: : "It is true that some couples who marry will not have children, either by choice or because of infertility, but the special status of marriage is nonetheless closely linked to the inherent powers and responsibilities of procreation, and to the inherent differences between the genders. Co-habitation under any guise or title is not a sufficient reason for defining new forms of marriage."

Despite the California Court's comments, this is not a neutral issue. Once again quoting from The Divine Institution of Marriage:

"The prospect of same-sex marriage has already spawned legal collisions with the rights of free speech and of action based on religious beliefs. For example, advocates and government officials in certain states already are challenging the long-held right of religious adoption agencies to follow their religious beliefs and only place children in homes with both a mother and a father. As a result, Catholic Charities in Boston has stopped offering adoption services."

Again The Divine Institution of Marriage:

"When a man and a woman marry with the intention of forming a new family, their success in that endeavor depends on their willingness to renounce the single-minded pursuit of self-fulfillment and to sacrifice their time and means to the nurturing and rearing of their children. Marriage is fundamentally an unselfish act: legally protected because only a male and female together can create new life, and because the rearing of children requires a life-long commitment, which marriage is intended to provide. Societal recognition of same-sex marriage cannot be justified simply on the grounds that it provides self-fulfillment to its partners, for it is not the purpose of government to provide legal protection to every possible way in which individuals may pursue fulfillment. By definition, all same-sex unions are infertile, and two individuals of the same gender, whatever their affections, can never form a marriage devoted to raising their own mutual offspring."

" 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?"

There is no question that there is a need for a constitutional amendment in Arizona, and elsewhere.

More later.

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