Marriage and the Constitution

It doesn’t take much knowledge of national and world events to realize the deplorable state of some things going on around us. But as bad as things are, some of us have thought that it was not quite as bad as that point reached by civilizations past where destruction was eminent. I always thought we had a little more time even though it seemed we were headed that direction. Then I read the words of a well-respected religious leader who recently said, “The world is spiraling downward at an ever-quickening pace. I am sorry to tell you that it will not get better. I know of nothing.in the history of the world to compare with our present circumstances. Nothing happened in Sodom and Gomorrah which exceeds the wickedness and depravity which surrounds us now.” (Boyd K. Packer, address to the J. Reuben Clark Law Society, 28 February 2004)

Our Deplorable and Dangerous State

Those of us who are involved in education continue to thrill as people young and old feel the power and truthfulness of principles of good government and the tremendous good which could be accomplished in the nation and the world by restoring real liberty under the Constitution. I, for one, rejoice when even one soul is truly converted to liberty and to the original brilliance of Constitutional government. But the sad fact is that as a nation we are losing the battles. What we have done is not enough. Our tactics and strategies are not enough.

The scheming leaders who have bought this depravity onto us are evil minded and bent on destroying those things we hold sacred. They have worked their way into powerful and influential positions. The very foundation of our nation-the family-is being attacked and systematically dismantled. We think we are at war in distant lands but our greatest war is in our own land. It is a war for the very heart and soul of American and human traditions. It is a war for our very survival because those nations which have gone down this path before have all perished. Even some of our constitutional friends are confused over what should be done.

Should the Constitution be amended to define marriage?

Law professor Richard Wilkins explains why this is necessary:

“Ten years ago, I would have explained that amending the Constitution to define marriage is clearly wrong – for at least three important reasons.  First, the Constitution says nothing about marriage; why should that change?  Second, marriage is a question the Constitution wisely leaves to the people within their respective states; why change that?  Third, and finally, the last thing America needs is more powerful federal courts; why tempt the judges by inserting a new topic into the Constitution?

“But that was then.  And this is now.

“Now, when I hear devotees of the Constitution repeat arguments that are almost a part of my DNA, I shake my head in disbelief.  The very concerns that, ten years ago, would have prompted my opposition to a marriage amendment now compel my support.

“‘The Constitution says nothing about marriage.’

“Quite true.  But the judges have.

“The Supreme Court this past summer in Lawrence v. Texas gave us an entirely ‘new Constitution’ that, for the first time in history, prohibits state legislatures from treating homosexuality any differently than heterosexuality.  What does this ‘new Constitution’ do to marriage?  The Massachusetts Supreme Judicial Court answered that question: relying on Lawrence , the Massachusetts court has ordered same-sex marriage. The Constitution now says a lot about marriage.  (Just interview the mayor of San Francisco.  Why did he issue marriage licenses not authorized by California law?  The Constitution demands it, he said.)

“‘Marriage is a question the Constitution wisely leaves to the people to decide in their respective states.'”

“Again, quite true.  And again the judges have taken that power away .

“Does the Massachusetts legislature have any say in who can get married?  Indeed, can the legislature even timidly suggest that it give a different name (like ‘civil union’) to state-recognized unions of homosexual couples?  No, say the courts.  After all, the Constitution (as construed in Lawrence ) forbids states from treating homosexuals any differently than heterosexuals.

“The Constitution now takes away the power of the people to decide questions relating to marriage and marital law.  (Just ask the Massachusetts legislature.)

“‘The last thing America needs is more powerful federal courts.’

“Yet again, quite true.  But by now the judges are laughing.

“The United States Supreme Court has demonstrated that it is capable of transcending not only the wording of the Constitution but the history, traditions and actual practices of the American people.  Even though the Constitution says nothing about ‘sexual liberty;’ even though the history, traditions and actual practices of the American people do not support an unrestrained ‘right’ for consenting adults to engage in any kind of sex they want; the Court has created this very right out of thin air.   Lawrence created this ‘right,’ not by relying upon the wording of the Constitution or the traditions and practices of American society, but by invoking (and I am not making this up) the ‘meaning of life’ and ‘mysteries of the universe.’

“The judges are now so powerful that they feel free to invent the Constitution as they move along.  (If the definition of marriage – an understanding as old as time – violates constitutional strictures, one wonders what centuries’ old legal notions the “mysteries of the universe” will invalidate next.)

“In light of these astonishing developments, it is absolutely clear why so many people are putting the words ‘marriage’ and ‘constitution’ in the same sentence.  An amendment is necessary to preserve not only the social viability of marriage, but the political integrity of the Constitution.” (Richard Wilkins, Marriage and the Constitution: Why We Need an Amendment,

But Doesn’t the Constitution Provide for Limiting the Jurisdiction of the Courts?

The U. S. Constitution declares:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions , and under such regulations as the Congress shall make .” (Article 3.2.2, emphasis added)

Some Constitutional devotees have relied on this clause to indicate all Congress has to do is pass a law limiting the jurisdiction of the federal courts. But this is not what it says. As Dr. Skousen explains:

“This provision was not designed to give Congress the power to limit the jurisdiction of the federal courts, but simply to make decisions on many topics conclusive after a hearing in the lower courts. It was the purpose of the Founders to protect the Supreme Court from being submerged by a mountain of trivial cases when it should be concentrating its attention on matters of national importance.” (The Making of America, p. 612. See quotes from the Founders on pages 612-613 to support this position)

Even if Congress were to pass a law limiting the kinds of cases which could be appealed to the Supreme Court, it may have the opposite affect. Imagine not being able to appeal sensitive cases to the Supreme Court. That would make the lower court decisions final. The lower courts have been just as active in destroying the Constitution as the Supreme Court has been, and there are so many more of them! (Examples include abortion, flag burning, homosexuality, and pornography cases).

A much better solution is to begin to limit the jurisdiction of the federal courts to the eleven kinds of cases outlined in Article III of the Constitution. However, this still would not undo the damage of past cases.

Continuing with Professor Richard Wilkins:

“1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.

“As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by ‘a written constitution’ and ‘the framers of the constitution contemplated that instrument as a rule for the government of courts , as well as of the legislature.’  (Emphasis by Justice Marshall.)  Because the Constitution binds the courts as well as any other branch of government, judges should adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people.  Any other course, as Chief Justice Marshall noted in Marbury , ‘would subvert the very foundation of all written constitutions.’

“Modern courts have dangerously ignored the teachings of Marbury .

“The ‘new Constitution,’ announced by the Supreme Court in Lawrence, frees judges from any need to tie their decisions to either the words of the Constitution or the traditions, history and actual practices of the American people.  Many people applaud the idea of a ‘living Constitution;’ a document that transcends words, definitions and the restrictive bonds of history and tradition.  But a document as fluid, unfettered and free as the ‘new Constitution’ unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has demanded that the people (and not the courts) resolve society’s controversial moral and social debates.

“Under the ‘new Constitution’ announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court – rather than a legislature – will settle the matter.  Why?  Because (according to the judges, the law professors and other elites) the ‘meaning of life’ and the ‘mysteries of the universe’ become more and more important as social debates become more and more divisive, difficult and debatable.

“Of course, this is not the Constitution the Framers intended.  It is not what the written text demands.  But it is what the courts have now decreed.

“We need an amendment on marriage, not only to protect marriage, but to demonstrate to the courts that they exceeded their power in constitutionalizing marriage in the first place.

“Modern courts feel free to ignore or alter constitutional text at will.  A constitutional amendment on marriage, by forcefully rejecting the judges’ latest excursion from constitutional text and history, will forcibly (and quite properly) remind the judges that their role is to adjudicate, not legislate.  A constitutional amendment is necessary to revive the idea which provides ‘the very foundation of all written constitutions;’ that is, that the Constitution is ‘a rule for the government of courts , as well as of the legislature.’  Marbury v. Madison (emphasis in original).

“2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.

“Under the ‘new Constitution’ drafted by the Supreme Court in Lawrence , state legislatures may not ‘demean’ the sexual practices of ‘consenting adults’ that are closely connected to individual views regarding ‘the meaning of life’ and ‘mysteries of the universe.’  (For those of you who either aren’t familiar with legal lingo or simply like people to write clearly: legislatures may not suggest that there are any differences between heterosexuality and homosexuality.)  To reach this result, of course, the Supreme Court had to ignore the words of the Constitution and the history and traditions of the American people.  In their place, the Justices have given us a poem – a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.

“This departure from text, history and tradition is a serious matter.  It dramatically upsets the proper balance of power between the judiciary and the representative branches of government.

“If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act.  But the Founders intended the judicial role to be exceptional and rarely invoked.  Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the ‘least dangerous branch’ because it does not create policy but merely exercises ‘judgment.’  The really difficult questions, Hamilton and the other Founders thought, would be left to the people.

“Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can’t be controlled) by the precise language of the Constitution.  If the ‘correct’ answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action.

“The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution.   By inventing and enforcing ‘rights’ nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the people’s popular control over an ever-expanding range of fairly debatable controversies.

“The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts.  But, because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance.  Without a constitutional amendment, the Supreme Court – and not the people – ultimately will determine what marriage means.  With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes.

“What does the Constitution demand?

“I fully understand the concerns of those who assert that, since the Constitution has never addressed marriage before, it should not be amended to address marriage now. But whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is in the Constitution.  The Founders did not do it.  But the courts have.

“By placing marriage in the Constitution, the judges have taken marriage out of the hands of the people.  The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.  It is now up to the people, by constitutional amendment, to remedy these errors.

“A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order.”