U.S. Constitution’s Preamble Upholds Traditional Marriage

On April 28, the United States Supreme Court will hear oral arguments on Obergefell v. Hodges and three other cases, testing the constitutionality of state bans on same-sex “marriage” and state refusals to recognize existing same-sex “marriages.” The outcome may well impose same-sex “marriage” on the entire United States of America, much as Roe v. Wade imposed abortion on demand upon the entire nation in 1973.

Such another sweeping “exercise in raw judicial power” (to cite Justice Byron White’s famous dissent in Roe) would be, in large part, based upon claims, rooted in the Fourteenth Amendment to the U.S. Constitution, to the effect that homosexuals have been unjustly denied “equal protection of the laws” by not enjoying access to homosexual “marriage” and, thereby, to the legal status and benefits given to those citizens who are free to enter into traditional heterosexual marriages. The following analysis addresses this central claim presented in the pending cases.

Traditional marriage already has a legitimate and exclusive foundation in the Constitution, because the Constitution’s Preamble explicitly states that among its enumerated purposes is to “secure the Blessings of Liberty to ourselves and our Posterity.”

According to Burton’s Legal Thesaurus, fourth edition (2007), “posterity” means, exclusively, entities, such as “later generations,” “children,” “progeny,” and other terms unequivocally identified with biological descendants.

Since the Preamble establishes the “legislative intent” that judges look to in determining the meaning of a law or constitution, it is clear that the U.S. Constitution is designed to secure the blessings of liberty to the biological descendants of the citizenry that constituted the United States at the time that the Constitution was enacted. This makes those biological descendants and whatever essentially pertains to them, including, presumably, the process by which they come into being as citizens of the nation, a central part or purpose of the Constitution itself.

“Equal protection of the laws” found in the Fourteenth Amendment language is cited in both state and federal claims alleging that homosexuals have the same right to marry as heterosexuals.

But such equality claims are illicit unless litigants are similarly situated before the law.

Since heterosexual marriage as a general institution can, at least potentially, further the purposes of the Constitution by securing the “blessings of liberty … to … our posterity” (biological descendants)—insofar as traditional marriage is the only institution that is naturally able to produce society’s posterity (biological descendants)—and since homosexual unions cannot produce any “posterity” (biological descendants) by themselves, the potential litigants are not similarly situated.

That is to say, while anyone can contribute to the blessings of liberty which may be bestowed upon posterity, traditional marriage between a man and a woman is the only civil institution naturally able to create the very object which is to receive those blessings, namely, posterity itself—the biological descendants of the present citizenry.

Anyone can make contributions to posterity, but the sexual union of male and female alone actually makes posterity itself. Marriage is the civil institution that regulates that union in civil society.

Thus, the Preamble’s wording establishes a distinct and special basis for traditional marriage, which does not obtain in homosexual unions.

This role of traditional marriage in producing society’s posterity is consistent with the classical meaning of marriage, even as understood by the pagan Romans.

Matrimony is taken from the Latin, “mater,” meaning “mother,” and “monium,” meaning “a state or condition,” thus defining the purpose of marriage as a man taking a wife in order to have children. In ancient Rome, this was understood as the purpose of marriage, the production of new citizens for the pagan Roman Empire.

While not every traditional marriage may actually beget new citizens for America, and while anyone may be able to adopt children, nonetheless traditional marriage between a man and a woman is the sole natural institution through which our “posterity” is begotten in order to replenish and perpetuate the citizenry of our nation. No merely arbitrarily formed contract—including so-called “same-sex marriage”—can fulfill that role as envisioned by the Founding Fathers, when they created a Constitution that secured the blessings of liberty, not only for ourselves, but also for our posterity.

Therefore, there is no legitimate basis for demanding “marriage equality” for homosexual unions—given the wording that expresses the legislative intent of the Founding Fathers as stated in the Preamble to the Constitution.

The Fourteenth Amendment cannot be legitimately employed to impose same-sex “marriage” upon the United States of America—unless the present Supreme Court intends once again to bear the infamy of engaging in an “exercise in raw judicial power.”

Dennis Bonnette

By

Dennis Bonnette retired in 2003 as Professor of Philosophy at Niagara University in Lewiston, New York, where he taught for 36 years. He received his doctorate in philosophy from the University of Notre Dame. Dr. Bonnette has authored many scholarly articles as well as two books: Aquinas’ Proofs for God’s Existence (Martinus-Nijhoff, 1972) and Origin of the Human Species: Third Edition (Sapientia Press. 2014). He and his wife, Lois, live in Youngstown, New York, and have seven adult children and twenty-three grandchildren.

  • athanasius777

    Those arguments would settle the issue if the actual meaning of the language of the Constitution were somehow relevant to our contemporary judiciary as they impose their decisions on the rest of us.

    “Legal” abortion is unconstitutional in the same way. One can’t be securing the blessings of liberty for the posterity of the founding generation and killing them off by the millions at the same time.

  • JR

    We all know that the Supreme Court will force same-sex “marriage” on the nation, like it did with abortion and the Constitution be damned. The “balance of power” is a farce in this country. We were taught that Congress makes the laws, the President through executive agencies enforces the laws and the Courts interpret the laws. Not so. Congress makes the laws as it’s supposed to; the President makes the laws by executive order or regulations of his myriad executive agencies and the Courts makes the laws by judiciary fiat.

  • Seamrog

    One more reason why I can NEVER understand why any Catholic could vote for a democrat in any election.

    Local elections and efforts gain momentum and lead to national political movements that give us the likes of Kagan and Sotomayor.

    I can only imagine how badly Obama wants Ginsburg to pass away.

  • An intriguing argument, but given that we have no right left to protect our posterity after Roe v Wade, entirety meaningless.

  • Mary Petnel

    Well argued but I fear we do not live under the rule of law anymore

    • St JD George

      Indeed, the rule of uninspired but somehow certain men, lacking in faith.

  • To argue that use of the word “posterity” in the Preamble is some enshrinement of marriage as a purely heterosexual institution is a bit of a stretch. But that’s not what matters, is it? As we get ever closer to the Supreme Court’s decision on marriage equality for law-abiding couples, expect the hysteria to pitch even higher.

    IF, as expected, Gay couples are granted the same legal benefits and opportunities that Straight couples have always taken for granted, there will undoubtedly be more than a few anti-Gay folks who simply SNAP. Already people are suggesting that such a ruling could precipitate another Civil War. And it will be in part because of hysteria whipped up, in part, by columns like this.

    • orientstar

      Please! There will be no “snapping” just as there is no hysteria. The Supreme Court will do as they wish and we will just live with the consequences. The Constitution had a good run, in historical terms better than most!

      • Asmondius

        Civil War?
        .
        Americans can get quite riled when it comes to issues of liberty.

        • I’m expecting it, but I think the Supreme Court will try to stall by giving in to the terrorists.

        • “Americans can get quite riled when it comes to issues of liberty.”

          Yes, the freedom to own slaves comes to mind.

          • Asmondius

            homosexual = African American
            .
            Yes, we all know the insulting comparison.

    • maineman

      The potential upheaval is being caused by the failure of many of us to think things through to their logical conclusions. For example, the term “marriage equality” that is so loosely thrown about these days implies that A + A = A + B. That can only be true if A = B, which in this case means that men and women are exactly equivalent.

      When a significant portion of the population is removed from reality in this way, i.e. delusional for all practical purposes, then civil conflict must necessarily be inevitable.

      • The point is not that men and women are exactly equivalent. They aren’t. But Gay and Straight people are different. If you are Straight, it is normal and natural to marry another compatible Straight person of the opposite sex. If you are Gay, it is normal and natural to marry another compatible Gay person of the same sex. What else is there to understand?

        I just hope people don’t resort to armed uprising after the Supreme Court’s decision.

        • “I just hope people don’t resort to armed uprising after the Supreme Court’s decision.”
          The armed uprising will come when theres a critical mass of Muslims and they depose the accumulated body of lunacy that has been issued by our esteemed ennead with something worse, Chuck.
          You’ll might be pushing up daisies when that happens Chuck, but for future homosexuals…

          • Ford Oxaal

            Progressives have more important things to worry about than posterity and survival.

            • Oh yes, I forgot their mission to reorder society in their own image.

        • The armed uprising has already come, the Supreme Court is simply giving in to terrorists.

        • maineman

          Sorry Chuck. You’re still talking nonsense.

          First, Gay and Straight people are not really different in any ontological way; they just prefer to do different things.

          But still, your argument is now that C+C= A + B. That’s just silly.

          And there is nothing “normal” about, say, inserting a procreative organ into an excretory organ. That is obviously aberrant. The fact that someone convinces themselves that it is “fine” or “normal” does not change that reality.

        • Chairm

          How does the “straight” couple consummate their sexual union, do your think?

          How might the all-male couple? And how might the all-female couple?

          When you said “Gay people and Straight people are different”, did you have this in mind? Yeh, you did. That is the sexual basis for your claim of difference and your assumption of what is normal and natural.

          The one-sexed sexual scenario is not procreative. But, as your own comparison shows, the difference is that coition is procreative in kind and commonly procreative in outcome.

          This sexuak basis is expressed in marriage law on sexual consummation, on marital paternity, on annulment, on adultery-divorce, and so forth. It is a two-sexed sexual basis.

          As per your own comparison, and according to the ssm complaint against the man-woman requiremnt of marriage law, the union of husband and wife is reasonably presumed to be a sexual union.

          Heterosexual in kind. That concedes procreative in kind. This is a difference in kind rather than degree. And that sets aside your false equivalence.

      • Ford Oxaal

        HAahah. Great post. If a rabid dog comes round your kids, you gotta shoot the damn thing. You should’ve seen my little factory town when it heard a rabid fox was running around. Guns everywhere! Boom. Dead. Threat eliminated. No control freaks were whining then.

    • Asmondius

      ‘ marriage equality for law-abiding couples’
      .
      Such as brothers, sisters, fathers and daughters, mothers and sons? Why shouldn’t a widowed mother be able to marry a child in order to benefit from government largess just as homosexuals are demanding? She would, after all, be a much more worthy contributor to society than two men engaged in long-term sodomy.
      .
      You see, the fact remains that the only way homosexuals qualify for marriage is to reduce it to an absurdity.
      .
      Incidentally, the only ‘hysteria’ I’ve witnessed over the past few years is that exhibited by people on your side of the issue. For example, I don’t recall people reviewing contribution lists for the effort to stop Prop 8 and then attacking the businesses of those they found there.

      • Such “slippery slope” arguments are pathetic.

        • Ford Oxaal

          Why? Let me guess. You will pull out the silly “slippery slope fallacy” card from your high school logic class. Ironically, the fact is slippery slope arguments apply in reality because they are used by the irrational to get “what you want”.

          • Yes, if you let a compatible Gay couple marry in the same way as a compatible Straight couple would marry, well, you just have to let fathers marry their daughters, cats marry dogs, fish marry bicycles, and lord knows what else. It’s a pathetic, tiresome argument.

            • Asmondius

              Are you aware that the term ‘straight’ is offensive to many of us?

              • You think the term “Straight” is offensive? Perhaps you’d like to make a list of terms you prefer to apply to people who are Gay. That should be interesting.

                • Asmondius

                  I’ll be happy to refer to you with a term you find objectionable if you wish to continue referring to 98% of the human population as ‘Straight’.

                  • Whether you like it or not, Asmondius, the terms “Gay” and “Straight” are part of common parlance when discussion matters of sexual orientation.

                    • GG

                      The terms are common the way weeds are common. They exist but need to be removed when intelligent people see them.

                    • Asmondius

                      Only in your world – not in mine. No one died and gave you the keys to the language. I guess I’ll just refer to you as a sodomite from here on out, as you refuse to acknowledge my feelings.

                    • Yeah, so were “Jew” and “Aryan” at another time and place.

                    • Chairm

                      Define “gay”.

                      Define “straight”.

                • Ever been called a breeder, Chuck?

              • GG

                Agreed. It is a silly propaganda term.

                • Asmondius

                  It’s just another manipulative attempt to make less than 2% of humanity exactly equal to the other 98%. I refuse to abide by it.

            • Ford Oxaal

              Would gays want to get married if the old restrictions on divorce still existed? No. This whole effort is a charade that exposes the ridiculous point that ‘progressives’ have brought us to in this country under the adolescent and facile flag emblazoned with the immortal words of idiocy: “Intolerance for intolerance! Change!”

              • For people who are Straight, nothing is changing. The marriage equality movement was never some sinister effort to make homosexuality compulsory. Straight couples will continue to date, get engaged, marry, and build lives and families together as they always have. None of that is going to change whether (or not) Gay couples do the same.

                • Ford Oxaal

                  This is correct. So called “straight” folks have destroyed marriage as an institution. Marriage in the west was once upon a time a sort of super contract that not even the parties themselves could dissolve. This has been the greatest gift to children in the history of mankind. Then came Protestantism. And, well, here we are. The slippery slope of Protestantism, which is founded upon their innovation of western divorce, has finally, after 500 years, ended up destroying the institution of marriage. Children abandoned, unloved, parents behaving like teenagers, eating too many chips, watching too much TV, eating corporate baked goods, buying plastic, making landfills. Our once great nation looks like a bad Dutch tavern painting or a Rubens flesh fest.

                • I wish you would stop euphemizing. It’s inaccurate and insulting.
                  Why are you here again?

                  • Martha

                    We may wonder what Chuck thinks he is accomplishing, but I do have to say that I don’t mind his presence as much as some pot-stirrers, as he at least tries to be rational and considerate enough for a debate. I’ve met many online personalities here that you wouldn’t want to meet in broad daylight, much less a dark alley.

                    • LarryCicero

                      He does not try to be rational when he won’t answer “slippery slope” arguments because his reason is simply that you have to draw the somewhere and if you move that line a little further than non-related gay couples his answer boils down to “Because I say so.” So a man should be able to marry another man, unless it is a son, brother, nephew, or cousin, then for some reason it is objectionable, even to him.

                    • Larry, the “slippery slope” arguments are no more relevant to Gay couples marrying than to Straight couples marrying. The notion that allowing compatible Gay couples to marry will automatically lead to fathers marrying their daughters or their cars is just silly.

                    • LarryCicero

                      Why must they be unrelated?

                    • For the same reason Straight couples who marry must be unrelated. I didn’t make that rule, but there it is.

                    • LarryCicero

                      Cousins don’t marry to prevent inbreeding. That is not an issue if they are of the same sex. So why can’t two brothers marry?

                    • LarryCicero

                      Cousins do not marry because it is dangerous and unfair to the offspring. The “rule” takes into consideration the effect on the child. Likewise a child has a right to a mother and a father, not that a child always has both present in his/her life, but that it is an ideal and a biological reality. To force a child to have two same sex parents is not fair to the child, even though a child may come through it and not be maladjusted when he/she reaches adulthood, it is not the ideal and it is not a biological reality that same sex parents can exist. God created them male and female. That is the rule we cannot change. Mother, father and child are a reflection of the Holy Family, Three in one. There it is, sir.

                    • Secundius

                      @ LarryCicero.

                      And yet it has been know too happen, especially in some of the more isolated area’s of human population…

                    • Secundius

                      @ Chuck Anziulewics.

                      Scientifically speaking, all it takes to make a “Viable Population Base” is Seven People. Six Men and A Woman…

                    • Rules can be changed.

                    • Chairm

                      And what is that “same reason”, do you think?

                    • Martha

                      True. A strange dichotomy.

                    • I don’t mind pot stirrers, its the passive aggressive types that I find most perilous.

                • Chairm

                  Homosexuality is not a legal requirement for those who’d ssm and no such requirement is proposed.

                  But your complaint against the marriage law is that the man-woman requirement is a heterosexual requirement. You’d abolish it.

                  So your homo-hetero, or gay-straight, dichotomy is false.

            • what about bi-sexuals? should the law disallow them from marrying one from each sex?

              • “What about bi-sexuals? should the law disallow them from marrying one from each sex?”

                At the same time? That would amount to plural marriage, and that’s not at issue here. Someone who is bisexual would obviously be happy marrying a compatible person of EITHER sex.

                • But why impose your feelings of what constitutes authentic bi-sexuality? Maybe it’s not obvious that his nature is wired for happiness being with just one sex. are you bi?

                • “Someone who is bisexual would obviously be happy marrying a compatible person of EITHER sex.”

                  And in a fit of exclusion, Chuck forgets that might not work well for the wife or husband of that bisexual.

                • Ford Oxaal

                  Hey, if marriage can’t be grandfather claused, nothing can. So relax, I get to marry several nieces, all at the same time. What should prevent it now that we are rewriting the laws of nature!

                • Martha

                  But don’t you think that plural marriage will be on the table sooner or later? I know you said you think the slippery slope argument is silly, but isn’t it logical? Why should a three-way love be denied marriage and equal rights? Heavens, it’s an entire religion, isn’t it? I think there are Mormons who still follow polygamy, albeit privately.

                • Chairm

                  What is the basis for your objection to “plural” ssm?

            • GG

              A “gay” couple is as illogical as a man and horse.

            • Secundius

              @ Chuck Anziulewcz.

              I didn’t know that STUPIDITY was an Human Exclusive…

            • Chairm

              Your dodge is tiresome.

        • Asmondius

          You provided the ‘slope’ – if you slip on it, this is entirely of your own doing. You specifically reduced marriage eligibility to ‘law-abiding couples’.
          .
          Explain to me, in a factual manner, why single relatives or Any same sex couple would not be able to marry? After all, there is no physical test that would determine homosexuality.
          .
          Just crying out ‘pathetic’ is not a legitimate response. Did they not show you how to deal with such comments when you received the playbook?

        • Do tell us about “pathetic” Arguments Chuck. Most of us have interests apart from mattters of sex, but you and the rest of the prarie dogs seem absolutely consumed by it.

        • St JD George

          You are aware that for the longest time that the man-boy and homosexuality movements were one and the same, organizationally at least, I’m not suggesting that the two are connected in terms of attractions. I’m sure in the meetings one group sat on one side of the hall, and the other on the other. In Europe for sure, I’m not sure how common else where. A few decades ago somebody thought they saw a glimmer of hope going it alone with the start of the cultural rebellion and decided that the other didn’t stand a chance of gaining a foothold so discarded them like a … and made a dash for it going alone.

        • Chairm

          It is not a slippery slope argument.

    • Ford Oxaal

      Hysteria? Whipped up? The author is making a legal case for crying out loud, and a pretty clever one at that. The hysteria comes from pushy political movements such as the gay “rights” movement, as if gays somehow deserve more rights than anybody else. What we really need in this country is an amendment that reads something like “any citizen can boycott or protest any public display they deem objectionable”.

      • When I see the word “posterity” in the Preamble of the Constitution, I think of future generations. I do not think it’s “clever” to suggest that the term was meant to exclude law-abiding, taxpaying Gay couples from civil marriage.

        • Ford Oxaal

          You don’t think it is clever, yet you think it is hysterical and inciting the country to burn down Page Street or something. But it is clever. The problem is the Supreme Courtiers are poorly educated and will likely fail to grasp the inherent cleverness of society in providing a safe haven and special place for posterity and for the deepest bond between humans, that of the procreative family. Plus, they have been smoking too much of their own crack and feel the power!

          • As one person noted (above):

            “The same “posterity” argument could be used to prevent the sterile from getting married.”

            • Ford Oxaal

              So what? Why play make believe as an adult? Posterity is about just that, posterity. But society does not have to work through all the complications of marriage — it has already been done for over a thousand years of great minds. Just look to the Roman Catholic Church regarding marriage and posterity. You cannot beat their logic – you might not *like* rationality and common sense, but then just be honest and say so.

            • Yes, and I for one consider that a good thing.

            • Chairm

              Nah, that is not so.

          • GG

            Plus some of them most likely have the same deviant tendencies.

        • GG

          I guess words are plastic to you. You just make things up as you go along.

    • Veritas

      “…expect the hysteria to pitch even higher.”

      Kinda’ like a climax, right Chuck.

    • Somehow, I think there will be more pro-gay folks who SNAP.

      Or at least apply for SNAP benefits for their same-sex spouses.

    • GG

      Do you think the founders anticipated homosexual groupings becoming legally equal to normal married people? You are confused.

      • There’s a lot of things about 21st Century America that the “Founders” could not have anticipated.

  • orientstar

    Good try – but we all know what they have decided to do. Neither Constitution nor any expression of popular will (votes, referenda, etc) are going to sway them. Religious rights, States rights, they don’t matter. Neither does Natural Law, Tradition, etc. They will do what they want to their shame and our children’s cost.

    • Jacqueleen

      Oh what money will buy!

  • David Kenny

    Is Chuck Anziulewicz saying that opposing some proposed change in the civil condition is morally wrong as it could lead to some people carrying out some act beyond civil discourse?
    In other words we must accede to a controversial proposal to avoid violence! What strange logic. It sounds like a proponent of homosexual marriage who wants all opposition shut down.

    • Never have found an SSA advocate apply that logic to himself. You can bet if the SCOTUS came down in favor of sanity and morality, the opponents would be defiantly acting against it.

    • “It sounds like a proponent of homosexual marriage who wants all opposition shut down.”

      Precisely.

      If your proposition is absurd, and veracity and logic don’t don’t apply, you advance your position with ferocity and suppression.

  • Charles Putter

    In the proposed scaled down version of marriage, government will legally recognise a “love pair”, and confer benefits on the two persons. What about unwed couples. Aren’t they entitled to these same benefits? GOVERNMENTS MUST NOT BE ALLOWED TO USE MARITAL STATUS TO DISCRIMINATE AGAINST ITS CITIZENS. These benefits have poisoned the matrimonial chalice. Remove them and marriage will return to its more pristine form.

    By the way, a “love pair” means “we love the benefits of pairing”. Any such pair should be allowed to apply for these benefits.

    • publiusnj

      If “love pairs,” why not “love chains”?

      I can see a governmental interest in heterosexual intercourse and its reproductive consequences into legitimate pairings and reproductions as it has been channeled until now. However, if that is not the purpose of Marriage (as it clearly cannot be in any marital regulation of Homosexual Intercourse) what legitmate right does the State have to say how many people can enter ito intimate relations with one another at one time?

      If condoms (or the sacrament of abortion) are used to prevent genetic anomalies, why can’t a father (or mother) have sexual relations with any of his (or her) children (male or female) once they are adults, if that is how they want to express their “love” or lust for one another? Indeed, why shouldn’t an adult child who wants to get an edge on his/her siblings be free to have intercourse or even marry the parent precisely to get an edge in the inheritance contest that may go on between them?

  • disqus_gEynqDDvb8

    The same “posterity” argument could be used to prevent the sterile from getting married. If one uses this argument alone to prevent same sex marriage, then it has to be applied equally to people who are barren. I know a woman who had a hysterectomy after suffering from endometrial cancer. Should she also be forbidden from being married because she can’t produce biological descendants?

    • Ford Oxaal

      But society does not have to work through all the complications of marriage — it has already been worked through for over a thousand years by great minds. Just look to the Roman Catholic Church regarding marriage and posterity. You cannot beat their logic. One might not *like* what is reasonable, but then one should just be honest and say so.

      • disqus_gEynqDDvb8

        None of the arguments here address my point, which was a response to the specific claim that ” but the sexual union of male and female alone actually makes posterity itself.” It was claimed that the Constitution supports marriage, through the use of the word “posterity,” as an institution devoted to the production of “biological descendants.” If this argument is accepted as true, why should barren people be allowed to marry?

        • “If this argument is accepted as true, why should barren people be allowed to marry?”

          They shouldn’t, at least, not civilly. There is, of course, the Sara Escape Clause in all of that….

          • GG

            I assume this is a joke.

            • The last bit is. Sara and Abram had Isaac late in life. It means you can’t quite predict what God will do with infertility.

              The first part is not a joke. Not at all. DINKs, Double Income No Kids, are an economic class whose only real lasting effect is to push up inflation.

              • GG

                Marriage is not about taxes or inflation.

                • Thus there is no reason to give such benefits to any private relationship.

                  • GG

                    There may be reasons to give such things to a married couple. That depends on a variety of factors.

                    • There is only ONE reason to give such things to a heternormative lifelong monogamous couple- building a family dynasty that will affect citizens many generations into the future.

                      That reason does not exist for DINKs, homosexuals, serial adulterers (divorced and remarried) or infertile couples. Adoption should get some of the benefits, but only if the adoptive couple is willing to provide a state certified heteronormative home life for the children, because that is the only way to raise children that will make posterity for the state.

                    • GG

                      No, that is not the only reason. Marriage is to be protected and the State giving certain incentives, regardless of children, is consistent with that protection.

        • GG

          Because the subjective state of any one couple does not negate the objective truth that their relationship is ordered towards procreation.

          Two men cannot be ordered toward procreation in any possible way.

          • Personally I think barren couples SHOULD be allowed to marry. After all, they can still adopt children, just like Gay couples do.

            • GG

              They can adopt and be normal parents. They are not sterile in the same sense “gays” are sterile.

              • disqus_gEynqDDvb8

                Now you’re changing the goalposts. That is a different argument entirely. Nobody here has yet given a good reason why a barren couple should be able to marry but not a same sex couple IF the Preamble to the Constitution supposedly suggests marriage is ordered toward generating biological descendants.

                • GG

                  No, no change. There is no comparison between homosexual groupings and married people. They are vastly different.

            • I am against gay people robbing a child of an opposite sex parent.

          • Martha

            Well said.

            • GG

              It is a shame I have to even type what I did. The obvious is no longer obvious to some. Poor Chuck refuses to see what is true and self evident.

          • disqus_gEynqDDvb8

            A woman who has had a hysterectomy is not ordered toward procreation in any possible way either.

            • fredx2

              And yet the complementarity between male and female remains.

            • GG

              She is most definitely ordered toward procreation. Likelihood of conception is not issue. The marital act takes place whether conception occurs or not.

        • Martha

          And how *should* barren people know that they are before marriage?

          You have to backtrack your argument to biology and science. Male/female unity is the only natural way to introduce sperm and ovum.

          Matrimony’s intended purpose (as far as government’s interest is concerned) is to further the citizenry of a country.

          • disqus_gEynqDDvb8

            If a woman has had her uterus removed, she may safely assume she’s barren.

    • “The same “posterity” argument could be used to prevent the sterile from getting married. ”
      Only if you ignore the fact that there is a natural, complementary affection between men and women that enables, but doesn’t guarantee issue.
      But again, the radical left thinks reality is something to be contrived and engineered rather than accepted.

      • GG

        Up until the gay lobby, and their minions, gained popular attention I doubt any sane person would ever think to compare a normal couple in their 70s with two men sodomizing each other. Only in our dark and sick age would such a comparison be offered.

    • GG

      Why on earth compare unequal situations and then draw false conclusions? It is illogical.

    • Charles Putter

      Of what is this barren couple deprived if they are not allowed to get married? Having sex, companionship? No, they can have those things without marriage. The only real loss is the various “material state benefits”.

      In any case, how is one going to enforce an “infertility ban”? Wouldn’t that be an extreme invasion of privacy? What greater good will it serve?

    • “The same “posterity” argument could be used to prevent the sterile from getting married. ”

      Good. DINKs are a drain on the resources of our posterity.

      • GG

        Such a utilitarian notion.

        • Such a utilitarian notion of marriage to begin with. If the only purpose of marriage is to get benefits, then it is within the rights of civil society to decide who deserves those benefits.

          DINKs, Double Income No Kids, are an economic class whose only real lasting effect is to push up inflation.

          I don’t see why we should be giving them benefits to do that.

          • GG

            The “gays”, and some libertarians think marriage is only about utility and taxes. It is not.

            • They are right when it comes to civil unions, they are wrong when it comes to the sacrament of matrimony.

              The problem is, when they are right, they don’t take the argument far enough. They don’t question why people deserve such benefits.

              • GG

                A so called civil union is a marriage. Changing the words cannot change the essence of the thing.

                • A civil union is a contract, not a marriage. The sacrament of marriage is spiritual, not physical.

                  A huge part of the problem is that we have conflated the two for far too long. In my opinion, Catholic Priests should stop acting as agents of the State and the evil government it represents.

                  • GG

                    Marriages can exist without being a sacrament. Marriage is a man and woman. The State certainly has an interest in protecting such things. The modern notion of it being simply a contract is based in a false notion of marriage and the State.

                    • The only thing the state can regulate and protect is the contract. I submit it has no interest in protecting the contract of homosexuals, DINKs, infertile couples, or anybody else not allowing for procreation.

                    • GG

                      You sound like anarchist.

                    • That is because I believe the United States, by rejecting the Right to Life, has already become a totalitarian anarchy. The only question left is how to protect the Church, which is not an anarchy, from the corrupting influence of the state.

                    • Every once in a while, Theodore ignores the slow order and takes a diverting switch at full speed and goes off the rails. In this case asserting some novelty that is found nowhere in scripture, history, canon or civil law.

                      In this case, he’d have told my late Great Uncle “sorry dude”, your intended is beyond childbearing years, so you can’t marry. Of course my late great Uncle wed at 68, and remained married until his death @ 97. Since Theodore is in his mid 40’s that means my Uncle was married longer than Theodore could hope to be at this point in his life.

                  • A “civil union” was a contrivance and a deception, a transient arrangement to extend all of the effects of marriage to homosexuals-an attempt by politicians to have their cake and eat it too. The militants would have none of it and its not an issue anywhere now.

                    • Thing is, they were right in one way:
                      It is valuable to society for random people to learn to live together, and it is reasonable to have people living at the same address co-mingle assets.

                      The problem was, they were discriminatory about it. The only way you could get a civil union, is if you were homosexual. A brother and sister living together and sharing material assets would not be eligible.

                    • “Random” people live together in college dormitories and military barracks. Most of us swear “never again” after that experience.

                      Two people who seek state recognition for their relationship aren’t random.

                      However, if you want to see unrelated people living together, google this former crime show subject : Mark Mangelsdorf.
                      A little over a decade ago, I worked for him, a couple levels down.
                      Comminging assets is a stupid idea from communes.
                      Civil unions were answers in search of a question.

                    • Having done quite a few studies on the Benedict Option, I see little wrong with small scale communes given moncultural assumptions. It is only in pluralistic societies that shared assets do not work, for obvious reasons.

                    • You need to see family members squabbling over the proceeds of an estate for better perspective.

                    • Children in a rural, traditional economy are a blessing. Children under urban capitalism are a liability. Come to your own conclusion on which economy I prefer.

                    • Secundius

                      @ Theodore Seeber.

                      Children are children, it’s just a matter on how you raise and teach them…

                    • Children in rural areas are raised in a way to make money. At best, children in urban areas are raised to spend money. A 12 year old in the country can earn $400 at 4-H auction raising a livestock animal. A 12 year old in the city can only play minecraft on a tablet.

                    • Secundius

                      @ Theodore Seeber.

                      You have a Clouded Skewed view of City Life. A 12-year old Country Child is just a likely to play Warcraft or Minecraft, as any City Child. Probably even more so, because of the Isolated Life Style…

                    • I grew up rural. I am now raising a son urban. The difference in work ethic, merely by both sets going to public school, is very great indeed.

                    • You really need to face the fact that you don’t know what you are talking about.

          • DINKs, Double Income No Kids, are an economic class whose only real lasting effect is to push up inflation.
            Negative. A large plurality of non-reproducing couples, would presumably be distortionary, but not inflationary.

            • So you do not believe that when demand goes up prices go up? You do not believe in the basic law of supply and demand?

              • LarryCicero

                That is just nuts.

                • More money, more disposable income, is more dollars chasing the same amount of goods. What did you learn about supply – demand pricing in high school economy happens when demand is increased and supply holds steady?

                  • LarryCicero

                    Do you believe supply is static-“chasing the same amount of goods”? Did you learn anything about economics beyond high school? Are you suggesting that marriage is the cause of the double income, that had they remained singles, there would be less income, whether or not it be disposable? Do you think DINKS are buying Legos? Are you not buying into the overpopulation argument of finite resources and arguing at the same time to have more children? If they are working, are they not producing and increasing the supply of whatever it is they are producing? Are DINKS automatically net takers unless they produce offspring and cease being DINKS? Please enlighten me on the economics of marriage and child birth.

                    • I believe the Earth is finite. I also believe that God is a Marxist when it comes to time, he only grants 24 hours a day to each of us.

                      I also believe that Legos are in *artificially* short supply. As in, collectibles, created to keep the highest price.

                      The Earth does have finite resources, but that isn’t the limit on supply that is causing inflation nor starvation.

                      Not all jobs, especially the highest paying jobs, create more supply. Many just market the supply that there is, or actively work to *reduce* supply, in order to increase profit per unit sold.

                      DINKS are net takers, always. They take all their lives and never give back, do nothing to create the next generation.

                      Here’s the mind-blowing part if your mind isn’t already blown. This means that while minimum wage laws are indeed hyperinflationary, the real problem is the amount of net disposable income in a society. Reduce the money supply, you fix inflation.

                    • LarryCicero

                      Which is better, inflation or deflation?

                      What is the yield per acre compared to fifty or two-hundred years ago?

                      What happens to the increase in profit per unit sold? Dinks “never give back.” If DINKS take a vow of poverty and burn their money to reduce the supply, would that make you happy? If they spend their income and it goes back into the economy, would that make you happy? If they save and invest, would that make you happy? Are you not just a Marxist at heart who’s driving force is based on envy, and harbor resentment toward DINKS?

                      If a couple can’t have children, have compassion. If they are not open to having children, then is it not an invalid marriage? Two people of the same sex cannot participate in the procreative act, the marital act, and therefore they are not capable of entering into a marriage. Same sex “marriages” are pretend,and thus invalid. DINKS, if not open to conception, are selfish in that they are not willing to submit to God’s will. But to argue that they are net takers economically is incorrect. They are not the cause of inflation, but contribute to a declining birthrate which according to your high school economics is a decrease in demand, and thus an increase in net disposable income. Your argument is not mind blowing, it is just nuts.

                    • Holy poverty is better, thus deflation, which enables the poor to live.

                    • LarryCicero

                      Deflation enables the poor to live? Neither inflation nor deflation contribute to one’s well being. Enable charity to help the poor be less poor. Enable growth to increase wealth. Encourage production. Encourage charity. Encourage reproduction. Be fruitful. Multiply.

              • Inflation is not supply and demand, its a monetary issue.

                • Inflation and deflation are caused by the ratio of money available for demand to hard supply. The more money you have in the system, the more expensive stuff gets. Which was the mistake they made in Zimbabwe a few years back.

                  • Which has nothing to do with children, so I see you get it.

      • Except not all “DINKS” chose that path. I know people who scorched their bedsheets and bank accounts trying into their 30’s.

        Of course one couple conceived their only biological son weeks after starting adoption proceedings, and now they have a family of seven. Six are adopted.

    • publiusnj

      The connection of Traditional Marriage to reproduction is clear. The fact that there are some people who will not reproduce for physical, mental or volitional reasons is a rather different question than Gay Marriage.

      If an opposite sex couple is both fertile and nubile, intercourse likely will result in reproduction unless the couple exercises its supposedly constitutional right not to reproduce. So, Traditional Marriage is this extremely powerful relationship that the State needs to regulate due to the tremendous potential consequences of Heterosexual Sex. That is why we have always had laws against adultery and the legal presumption of paternity (or legitimacy) for all children born out of a woman during the course of a marriage as well as the inheritance laws of Curtesy, Dower, the Marital Share and intestacy.

      By contrast, NO gay can reproduce as the result of the exchange of genetic material to/from his/her same sex partner. If a gay wants to reproduce he/she will have to go outside the “Gay Marriage” and hook up in some fashion (sexual, or artificial) with an opposite sex genetic material donor. It would be just silly to attribute paternity to the other lesbian spouse when a woman in a lesbian marriage produces a child out of her womb. Even more crazily, who is the mother when two male homosexuals hire on a surrogate for a designer built child? It can’t be anyone in the marriage, so the presumption is not even relevant. In truth, homosexual sex is just sex and if the Government can’t interfere in a marital bedroom (where it has legitimate interests) why should it even address mere sex?

      While in a traditional marriage the state cannot be sure that reproduction will occur, decisions going back to Griswold v Connecticut make it clear that the State has no right to examine what goes on in a marital bedroom, as 50+ years of liberal sexual propaganda has reminded us. So why should the State be able to impose a reproduction mandate on a heterosexual couple, as would be required to prevent a woman with a hysterectomy from marrying unless the Government interferes with her right to privacy? How stupid would it be for a County Clerk to say to such a woman: “You can’t marry. I checked your Gynocolgist’s files and learned that YOU ARE BARREN! THEREFORE YOU CANNOT MARRY!” The possibility of reproduction is enough reason for the State to regulate heterosexual marriage, but a State demand that the heterosexual couple be able to reproduce would be an unwarranted interference on the State’s part.

    • Dennis Bonnette

      Since this issue appears to be causing some confusion, I will offer comment.

      In the text itself, I implicitly addressed this issue: “While not every traditional marriage may actually beget new citizens for America, and while anyone may be able to adopt children, nonetheless traditional marriage between a man and a woman is the sole natural institution through which our “posterity” is begotten in order to replenish and perpetuate the citizenry of our nation.”

      Without getting into the weeds, the logic is clear: While some natural marriages may fail to produce children through some defect – be it
      intended or biologically accidental, it remains clearly true that heterosexual unions are the only type inherently able to produce the posterity of the nation. Same-sex unions, by their very nature, are incapable of producing children by themselves. Yes, they can use male sperm in the case of lesbians, and both types can adopt (although adopting is not producing). But the fact remains that only through natural heterosexual union of sperm and ovum can offspring be produced. Same-sex unions can never do this by themselves. Heterosexual unions by nature can produce posterity, even if many fail to do so per accidens.

      Thus, while at least some heterosexual unions can (and most do) produce their posterity completely by nature and by themselves, absolutely no same-sex unions can ever do so without the direct contribution of some member of the opposite sex to a procreative act in some way.

      Hence, the two types of union are not similarly situated before the law with respect to the issue of “posterity.”

      I could get into the nature of the marriage contract itself, but that takes a lot more explaining.

      I am well aware that the Supreme Court is most unlikely to adhere to the logic of my argument, but perhaps some of our posterity will take note of it.

      • Poconos Exile

        That’s just not true. Our society can be reproduced artificially through naturalization. Are future naturalized citizens not part of our posterity?! That’s an absurd proposition.

      • disqus_gEynqDDvb8

        Thank you for your comment, Dr. Bonnette. My contention is that the word “posterity,” as used in the Preamble, does not refer merely to the biological descendants of traditionally wedded parents. It refers more generally to “future generations.” There is nothing in the Preamble that suggests that traditional marriage is necessary for “securing the blessings of liberty to ourselves and our posterity.” The “blessings of liberty” are available to all Americans, whether illegitimate, born to traditionally married parents, conceived in a test-tube, or naturalized. There is simply not enough information in the Preamble to support the claim you make.

        Clearly a man and a woman are, as you say, biologically required to produce a baby. However nowhere in the Preamble is it suggested that parents need to be married (some of the founding fathers may themselves have had illegitimate children) or that ability to procreate should be a condition of marriage. Your opinion may be valid for you, but it’s not supported by the Constitution.

        As an aside, fertility is not in a Catholic sense a prerequisite for marriage. According to the CCC #1654, “Spouses to whom God has not granted children can nevertheless have a conjugal life full of meaning, in both human and Christian terms. Their marriage can radiate a fruitfulness of charity, of hospitality, and of sacrifice.”

        • Dennis Bonnette

          The issue is not whether the Preamble mentions marriage, but whether it sees posterity as a value to be affirmed. In saying that the Constitution seeks to secure the blessings of liberty for ourselves and our posterity, it manifests a legislative intent aimed at benefiting our posterity, that is, biological descendants.

          In so saying, this shows that having posterity is a value to be affirmed. It is not a question, then, of defining marriage as such, but rather of noting that there is a difference with respect to this legislative goal between heterosexual marriage and homosexual unions, in that solely the former can naturally give to us a posterity, whereas the latter by nature cannot. That is why heterosexual and homosexual unions are not similarly situated before the law, as would be required by claims of “marriage equality” made under the 14th Amendment. Reread the exact wording of the article.

          As to whether Catholic teaching requires fertility for a valid marriage, few people understand the actual contract of marriage. Since you refer to Catholic teaching, I will cite Rev. Heribert Jone’s Moral Theology (1st ed.), a standard reference used by many parish priests:

          “The Marriage contract is a contract by which two competent persons of the opposite sex give to each other the exclusive and irrevocable right over their bodies (ius in corpus) for the procreation and education of children.” p. 483.

          Note the reference to the “right over their bodies.” This refers to the ability to perform those physical acts that are apt for procreation. It does not demand fertility. That is why the author further states, “Sterility neither invalidates marriage nor makes it unlawful. … even very aged people may marry as long as they can somehow consummate the marriage.” p. 515.

          Sterility may not invalidate a marriage, but the ability to perform those acts apt for procreation remains necessary. That is why homosexual persons cannot validly marry, since they do not possess the complementary genitalia requisite for acts open to the procreation of new life.

          They cannot produce posterity.

          • Secundius

            @ Dennis Bonnette.

            I dare you to produce one Case Study by the American Medical Association, that says Homosexuals are incapable of Reproduction of Any Kind due to Genitalia Deficiencies…

            • Dennis Bonnette

              Please reread what I said carefully: ” homosexual persons cannot validly marry, since they do not possess the
              complementary genitalia requisite for acts open to the procreation of
              new life.”

              The context is “marriage” between two persons of the same sex — meaning, to each other, of course. “…do not possess the complementary genitalia” — meaning, in obvious context again, that they are lacking the sexual differences of male and female, differences which are “complementary,” and necessarily so, in order to generate new life.

              Of course, homosexuals are capable of procreative acts with members of the opposite sex. They just won’t do them.

              This makes me think of what I have long held: The mere contemplation of the complementary nature of the sexes is such that homosexual acts are as obviously wrong as trying to put together two pieces of pipe with male fittings … or two with female fittings. The moment you even allow that there is an open question, you have already lost the argument.

              • disqus_gEynqDDvb8

                Again, this is a theological opinion, not a legally justifiable interpretation of the Constitution. As such, the argument cannot be used by the Supreme Court in determining the validity or otherwise of same sex marriage. And, as I pointed out above, some heterosexual people are genitally deformed or damaged, meaning that they too are incapable of participating in “acts open to the procreation of new life.” How would it be fair to deny gays the right to marry on these grounds but to allow heterosexual marriage to those who are barren or have genital deformities?

          • disqus_gEynqDDvb8

            I think we would all agree that posterity is a value to be affirmed. I can’t imagine that anyone would question that. Technically, however, the human race (“posterity”) can continue without heterosexual marriage (and does — I understand that above 40% of births in the US occur out of wedlock) and with homosexual marriage. The small percentage of homosexual marriages that occur are not going to prevent the continuation of the human race and will have very little effect on the total population.

            With regard to how homosexual and heterosexual marriages are “situated before the law,” there is — in terms of raw ability to “give to us a posterity” — no difference between a woman who has had a hysterectomy and a man in a homosexual relationship. Nor will a man who has lost his reproductive organs in an accident “possess the complementary genitalia requisite for acts open to the procreation of new life.” Under the equal protection clause, one cannot use the argument of barrenness and body construction to argue against homosexual marriage unless you are also prepared to use it to argue against heterosexual marriage where at least one party is infertile or incapable of having sexual intercourse. The two cases are not situated differently before the law at all. They are technically identical in terms of ability to produce posterity.

            I understand your theological argument, but it doesn’t translate into a legal argument that is supported by the Preamble. If anything, when considering the meaning of securing “the blessings of liberty to ourselves and our posterity,” we could interpret the legislative intent to be to ensure that that portion of our “posterity” that is gay is granted the “blessings of liberty” in being free to choose a spouse of the same sex.

  • Roe v Wade was 1973, not 63. Other than that, the article’s brilliance is that it only makes the obvious point: the Founders would have never dreamed of protecting publicly and intrinsically destructive acts as a right.

  • Jhawk77

    Thank you, Dennis. I’ll be overwhelmingly happy if the court does what it should have done with Roe v Wade, give it back to the states to decide. But, because our culture is no longer founded on divine law but on the “uninhibited right to sex,” and because the court no longer rules on law, I’m afraid the court will continue to ride the wave of cultural desires.

    • Kennedy will write something as arbitrary and capricious as he’s done in other cases, that mocks the idea that a judge applies or interprets the law, rather than making it.

      • GG

        True.

      • LarryCicero

        Who is to say that they hadn’t meant to secure the liberties of their posteriors?

    • ONE of the reasons why I think the Supreme Court won’t kick the issue back to the states is because they would later have to clarify how the “Full Faith & Credit” clause applies to married couples. Thanks to that clause, any Straight couple can fly off to Las Vegas, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, no questions asked. If you and your spouse relocate to another state because of a good job opportunity, you don’t have to re-apply for a new marriage license.

      But what happens if a legally married Gay couple in Iowa relocates south to Missouri? Should Missouri have the power to declare their marriage null and void? And if so, do they lose their federal benefits such as survivorship under Social Security?

      • MikeCody

        No, Missouri should have to recognize the marriage as valid while retaining the right to not allow the same couple to marry in that state. If a couple is married in a state with different consanguinity restrictions, that marriage is recognized as valid even if it could not have been performed in a second state, and this should be the same principle.

        • fredx2

          So if Massachusetts decides that you can marry your pig in that state, and a man does so, then if they move to Missouri, then the man and his pig must be considered as married by Missouri?

          Nope. The interpretation that gay marrriage advocates are urging of the Full Faith and Credit clause would effectively erase state sovereignity, and make each state lose complete control of its matters, based on what other states did. That is not what the clause does, and it has never been held that is what it does.

          • If a pig can give verbal and written consent to marry, let us know.

            • fredx2

              Who said it has to give consent? Under my example, Massachusetts has decided that the owner has the right to consent on behalf of the pig.

          • MikeCody

            First, if a state were foolish enough to pass such a law it would be soon held unconstitutional as it would be attempting to impose human standards upon animals. However, if a state allows second cousins to marry and they move to a state where no closer than third cousins are allowed marriage, that marriage is still valid in the second state.

            As to your opinion of what the clause does, I disagree. In support of my contention, I refer you to THOMPSON v. THOMPSON, AKA CLAY 484 U.S. 174 (1988) and WILLIAMS ET AL. v.NORTH CAROLINA.317 U.S. 287 (1942). Both of these cases involve similar issues and have been established case law for quite a while.

      • Chairm

        Replied to this under your repetition of the very same comment.

    • MikeCody

      I agree in part. It would be the correct legal decision to give the states full control over marriage qualifications. However, on the other part of the case, it would also be correct to force the states to recognize out of state marriages that do not meet their qualifications as valid, under the ‘full faith’ clause of the Constitution.

      • Chairm

        Yet any relationship that lacks either bride or groom is not a marriage. It would be something quite lawless for a state to recognize as marriage a relationship that is not marriage.

        Wht you describe is like forcing the people neighboring a slave state to enforce slavery in their free state.

        • MikeCody

          That may be true by your definition of truth; but the question it begs is “What is truth?”. If your definition is based on either history or on the Bible, than polygamous marriages are equally valid, since they existed for centuries in both the Bible and society in general.

          As a more valid example, what I describe is similar to the situation where one state allows second cousins to marry, and they move into a state where only third cousins may do so. The couple under this situation is still considered married by the neighboring state, even though they could not have married there. A couple married in a state where the age of consent is lowered is not unmarried by moving to another state either.

          • Secundius

            @ MikeCody.

            The following States allow Polygamy: Arizona, Colorado, Idaho, Montana, Nevada, South Dakota,Texas, Utah and Wyoming.

            There are currently Twenty-Four States that condone 2nd Cousin Marriages.

            Twenty-One States that condone 1st Cousin Marriages.

            And the BIGGIE. New Jersey, Ohio and Rhode Island condone Brother and Sister Marriages…

          • Chairm

            Backup the truck. Do you agree that it would be wrong to recognize as marriage a type of relationship that is not marriage?

            It would be analogous with recognizing a slave master as an owner of property. The enslaved person is a human being and as such is distinctively different in kind from pieces of property. Ownership and fellowship present another difference in kind. That is readily discernible in that both the enslaved and the slave master are fellows in humankind. Their lawful relationships is not ownership but fellowship.

            For marriage, eligibility by age and by relatedness are based on differences in degree, not differences in kind. Likewise polygamous practice which entails a series of concurrent man-woman relationships.

            The truth? It appears that the truth is less disputed that you’d suppose:

            Marriage is a sexual type of relationship, as the ssm side’s complaint concedes. They insist that the bride-groom requirement is a legal requirement for the type of sexual relationship that is heterosexual in kind. Hence their homosexual emphasis.

            Do they speak the truth? They seem to promise as much. Perhaps you disagree with the sexual basis of the ssm complaint.

            Heterosexual in kind reasonably means procreative in kind. We are discussing the kind of relationship.

  • publiusnj

    This is a very artificial argument, but then most arguments in our courts on constitutional issues have become very artificial. In truth, everyone knows that neither the Constitution nor any of its amendments ever contemplated extending the definition of Marriage to Gay Marriage. Everybody knew that as recently as during the 1996 passage of DOMA.

    Since then, various state courts, beginning with Massachusetts in 2003, have engaged in “raw exercises of judiical power” to invent rights to Gay Marriage and the People of State after State revolted by passing 32 referenda prohibiting Gay Marriage. That just enraged the judges even more, so they ignored the People and common sense and 2000 years plus of History and just kept ruling for their hearts delight.

    As the issue finally percolated up to the USSC in 2012, that bunch of black-robed rulers had to find a way to undo the will of the people as expressed both in the overwhelmingly passed federal Defense of Marriage Act and in the state referenda. They did so by striking down DOMA as an inappropriate federal exercise of power on an issue that belonged exclusively to the states and then knocking down the Califonria State Referendum on “standing grounds” (i.e., “because the governor of California and the Legislature chose to ignore the People’s referendum, we judges can also ignore it”). Now that it is clear that there are some state politicians who will try to enforce the People’s will (as expressed in the referenda), our Judicial Nonumvirate will have to concoct a new theory, this time based on a federal constitutional ground that somehow overpowers the supposedly exclusive power of the States on Marriage. Undoubtedly, they can find a way to do it because they have no shame.

    We live in country in which the rule of law has been replaced by judges’ druthers.

    • Ford Oxaal

      I think the article puts forth a legal argument as brilliant as the
      times are interesting. The argument is unassailable because it lives
      within the bedrock of the Constitution. The Constitution recognizes
      that a just civil government is duty bound to the well-being of the
      procreative family first, and all other concerns second. This then puts
      marriage, the societal basis of support for the procreative family, in a
      special class apart from all others, and is therefore legally
      unaffected by the fourteenth amendment and therefore unaffected by all
      the darts and arrows being tossed around in the peanut gallery.
      Absolutely brilliant.

      • publiusnj

        I agree that the “posterity” point is one that might show disinterested people that people back then thought differently and never had Gay Marriage in mind. We have many years worth of consitutional jurisprudence, though, that has incresingly assumed that the Founding Fathers were looking to get rid of all religious content and to produce an amoral nation. Indeed, according to the prevailing constitutional interpretation, there is NOT EVEN A REFERENCE TO GOD IN THE CONSTITUTION. That “truth” ignores the reality that “our Lord” is specifically referenced in Article VII of the Constitution; yet, our advocates allow the fiction that the Constitution never mentions our Lord to be repeated ad nauseam. The “Justices” and judges of inferior courts just don’t care about History or specific language. They excuse references to the opening phrase of a session of their own institution (“God save this honorable Court” or some such) as a mere nicety. They likewise would probably brush off either the Lord reference or the posterity reference as mere niceties without decisional significance. That is the way of judicial tyranny, so I wouldn’t get my hopes up.

        I think the better course is to argue that if their 2012 Decision striking down DOMA is right, then the states’ decisions should control. IOW, we should shame them into not talking out of both sides of their rubbery mouths. And, if we can’t shame them (as is likely), we ought to be talking about how far down the road they have gone toward tyranny (“we can ignore referenda and so can state governors who want to go our way”)..

        • Ford Oxaal

          I think this is a watershed moment because the justices, as clever as they are with finding arguments, can use the argument in this article to uphold marriage as an institution uniquely able to secure blessings for posterity. If they choose not to do so, then their decision will mark the moment in history when the abyss was sounded.

          • publiusnj

            They could also just say that Gay Marriage wasn’t legal at the time of the Constitution or at the time of the 14th Amendment, nor for most of the next 146 years in most states and that it is a matter,as we just said two years ago, that is exclusively reserved to the states. Then they ought to thank the governors and AGs who faithfully executed the laws of their states, unlike Schwarzenegger or Obama and Holder on DOMA. That to me is one of the most shameful things about our current jurisprudence and governance. When Obama or state governors don’t defend their laws, the USSC reaction is: “good, now we can do what we want and the People be damned.”

            • Ford Oxaal

              And yet the same People don’t get their dander up. It’s as if We the People have been fatted for the slaughter! Hopefully folks will look up from their feed bags one of these days and bring the smack down.

              • publiusnj

                You’re right. The People need leaders. However, the Dems are happy and the Republicans just figure the fix is in, so let’s concentrate on economic issues because that might be a way to get some of the newer demographics.

                • Paddy

                  Not to mention getting a piece of that new research facility in Shanghai the Chamber of Commerce is pushing.

              • Paddy

                True. Until patriotic citizens take to the streets…..we are doomed, and we richly deserve to be doomed.

    • fredx2

      Better to focus on the tenth amendment – since marriage is not expressly mentioned in the constitution, the matter is reserved to the states.

      • St JD George

        You are a funny guy Fred. State’s rights, what the heck are those. The state’s forfeited those eons ago in acquiescence to their rulers on the Potomac. With the recent shock to the system these last 6 years, I have read where a few have woken from their slumber and have searched the halls of the Library of Congress again to find it and remind themselves nostalgically of what was once their’s.

        • fredx2

          Yeah, sorry, I believe in the Constitution, rather than in Justice Kennedy’s personal preferences. There is a difference.

      • ONE of the reasons why I think the Supreme Court won’t kick the issue back to the states is because they would later have to clarify how the “Full Faith & Credit” clause applies to married couples. Thanks to that clause, any Straight couple can fly off to Las Vegas, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, no questions asked. If you and your spouse relocate to another state because of a good job opportunity, you don’t have to re-apply for a new marriage license.

        But what happens if a legally married Gay couple in Iowa relocates south to Missouri? Should Missouri have the power to declare their marriage null and void? And if so, do they lose their federal benefits such as survivorship under Social Security?

        • Mike W

          You are right in that the two different definitions of marriage are completely incompatible. This is why we need to decide whether marriage should be based on biological fact and truth or the whimsy of whatever people want at the time. There is, in fact, only one logical and reasonable definition of marriage and that is based on the actual function of the biological family.

        • bonaventure

          DOMA is still in effect, by the way.

          The SCOTUS kept those very sections in DOMA which allow States to reject the homosexual “marriage” from other states, if it is against their law. The SCOTUS left these sections there, while they could have struck them down when DOMA had its day in court those two years ago.

          But they didn’t.

        • Chairm

          That is an excellent reason to uohold the man-woman requirement in state law. The local imposition of ssm is designed to cause mischief rather than to settle the matter within the bounds are a given state.

    • Ford Oxaal

      Any government that compromises family is illegitimate. I think all citizens of sound mind, gay or otherwise, would agree with this. Gay marriage compromises family because it is *intrinsically* contrary to the ends of marriage which is to form, secure, and nurture the next generation. Therefore, any government that enshrines gay marriage into the law is illegitimate. The irony here is that any rights gays or anyone else have are ultimately founded upon family rights (family->tribe->government). Gays, in trying to secure a perceived good by inverting the most fundamental of all rights, are not even acting in their own best interest. We are all in the same boat here.

  • Mike Smith

    Maybe it’s the libertarian in me, but perhaps we should argue why we need the state to regulate marriage in the first place. Part of the issue lies in desiring “benefits” such as tax status, which actually has more to do with problems in our tax code than existential issues about the institution of marriage.

    To me, marriage is a natural and sacramental institution and I rely upon the Church to govern it, not Uncle Sam, and quite frankly the government probably shouldn’t be involved in the first place.

    • None of the legal benefits of marriage come from the church, they come from government. And couples don’t need church approval to obtain a civil marriage license.

      If the government considers “marriage” to be a religious designation rather than a legal one, it has no business making any laws concerning that institution. If, as confirmed by its actions, the government believes “marriage” to be a legal contract, it has no business denying that contract to any two unrelated adults, no matter what their gender might be.

      • Ford Oxaal

        But you aren’t arguing that the procreative family should be on par with non-procreative families, or are you? Forget nomenclature. Don’t you think a just civil government would carry out any and all of its duties with the procreative family foremost in mind?

        • I know plenty of married Gay couples who have adopted children. I know plenty of married Straight couples who have no desire to have children. And I know some Straight couples who have become parents, but have no intention of marrying. I’ll leave the moral finger-wagging to you.

          • I consider those to be bad parents.

          • Ford Oxaal

            I’m asking a simple, non-rhetorical question — do you agree that just civil government is duty bound to the well being of the procreative — not adoptive — procreative family first, and everything else second?

      • Martha

        I agree with you, Chuck; the separation of Church and State does make it a sticky wicket. However, the government certainly regulates other things that seem to be of a solely moral nature. Polygamy and suicide, for example, although I’m sure it’s only a matter of time before they become legal as well.

        I think the point is that the Constitution was founded with a God-fearing principle, and although it did formally separate Church and State in the sense that you wouldn’t be persecuted for being Catholic/Methodist/Puritan/whatever, it still was founded as Christian, which is why they felt that persecution of Mormons was alright- they weren’t considered a Christian denomination. But the laws were still meant to uphold Christianity, that was a given. As our nation has become increasingly secular, the definitions have been stretched to their limits, as is happening now.

        I notice you said ‘unrelated’ adults; if the gov has no business in marriage, then it has no business in marriage; that would include any kind of marriage to any person or persons, or possibly animals and objects, as well.

        • I said “unrelated adults” because it’s a standard that applies equally to Gay and Straight couples. As for “slippery slope” arguments about polygamy, bestiality, and what have you … they aren’t worth a response.

          • Seamrog

            Because they force you to acknowledge the fallacy of your arguments.

            Can’t hide from logic, Chuck.

          • Martha

            I disagree, but that probably goes without saying! I think slippery slope arguments make a logical point.

            • No they don’t. Otherwise you could easily say, “If you allow a man to marry one woman, you have to allow him to marry as many women as he wants.” You could say, “If you let a compatible Gay couple marry in the same way as a compatible Straight couple would marry, well, you just have to let fathers marry their daughters, cats marry dogs, fish marry bicycles, and lord knows what else.”

      • Mike Smith

        I said nothing about government considering marriage to be a religious institution or a civil one. I’m saying that government shouldn’t be considering anything about marriage at all.

        What legitimate government purpose does regulating marriage through licensing serve? Every legal benefit to marriage you can think of can be dealt with in such a way that doesn’t require even talking about marriage. Tax issues? Maybe we shouldn’t have a tax code that rewards or penalizes relationship status. Hospital visitation rights? Maybe everyone should be able to designate any other human being as the holder of those rights on their behalf.

        In actuality, this whole issue is something we shouldn’t even have to argue about because it should be left up to individuals as free persons.

    • Ford Oxaal

      It’s not the libertarian in you, it’s the fact that you have begun to notice that a ruling class (a) exists and (b) is self-absorbed. They don’t pay tax, they don’t get divorced, and they marry their children to others in their class. Their political patronage system takes care of all other issues.

    • “Maybe it’s the libertarian in me, but perhaps we should argue why we need the state to regulate marriage in the first place. ”
      Martin Luther proposed that marriage was a civil affair to be regulated by the state -and he had help from Henry Tudor. The first cvil marriage licenses were required by the French that MIchael PS likes to quote.

  • HartPonder

    If they don’t obey what is directed in the Constitution, why bother with the preamble? States rights, the takings cluase, asset forfeiture, income tax, the commerce clause, etc., the list is endless.

    Sad to say, but many Catholics have Americanized the Gospel, and now are disillusioned with this nation: “Do not trust in princes, In mortal man, in whom there is no salvation.” Psalms 146:3

    Now more than ever, as we work for justice for all peoples, being “in the world but not of the world”, we need to adhere to our mission as a Church (Matthew 28: 19,20), and point to the true source of Human hope, Our Lord’s Parousia (Daniel 2:44 CCC 1040).

    “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.”
    Cardinal George

  • Timothy Black

    wasn’t RvW 1973?

  • Keith Cameron

    ‘Big Gay’ is now in charge and the rest of us will dance to the tune they call. It’s going to get even more ugly.

    • Calm down. The marriage equality movement was never some sinister plot to make homosexuality compulsory. You won’t be forced to attend weddings for Gay couples, and you are still free to preach against them until the cows come home. This will have precisely ZERO impact on your life, your family, or your church.

      • Seamrog

        You are lying – again.

        The goal is to destroy the Truth, and replace it with deviance. You will come knocking on the Church doors demanding sacramental marriage and when refused, you will burn down the building.

        When you are refused a spot at the altar, the lawsuits will start.

        If they haven’t already.

        When the organist won’t play, or the cantor won’t sing, you will sue.

        When Reverend Msgr. Suchandsuch won’t give you premarital conseling, when he won’t schedule your sham weddings, when he won’t sign the marriage certificate, you will sue.

        Liar.

        • Sorry, but you’re just wrong. Churches have always been able to conduct their own affairs as they see fit. Separation of church and state guarantees this. The government can’t force a church to provide marriages for Gay couples, and churches can’t prevent the government from recognizing them.

          • Seamrog

            You are lying about your intentions.

            The evil of this movement will not stop and will break every promise it has made (as it already has) to destroy the Truth, and shutter the Light.

            When you can’t force the Church to participate in the evil, you will use the power of the government to do so.

            You are a liar, Chuck.

          • FrankW

            Tell that to Catholic organizations, which are part of the Catholic Church, who are being forced by the HHS mandate to either violate Church teachings or be fined out of existence.

            • Seamrog

              Tell that to Catherine of Aragon.

          • Jacqueleen

            Wrong…they will yell DISCRIMINATION….LOUD, LOUD, LOUDER!
            THEN THEY WILL SUE. The gays are disordered, remember!

            • Dear Jaqueleen:

              Do you have any Gay friends? Ask them why they would want to celebrate the happiest day of their lives in a hostile environment, when there are plenty of churches that are more welcoming.

              • Seamrog

                Like you, they would never answer honestly.

                It is not about celebrating a happy day – it is about destroying the Truth that confronts and agitates you.

                It is a war against the Truth that shines Light on the darkness of perverse relationships and behaviors.

                You continually lie and claim it is about picking a nice flower arrangement and a pretty cake.

                Newsflash tinkerbell…your paper is thin and we see through it.

              • Jacqueleen

                Ask them why they would want to celebrate the happiest day of their
                lives in a hostile environment, when there are plenty of churches that
                are more welcoming.
                For the simple reason that their agenda is to destroy the Catholic Church…the more welcoming churches will fall right into place with the One World Religion..It is the Church that Jesus instituted that is the problem for this evil NWO agenda. If gays were not so in love with their disordered lifestyle, they would recognize that they are choosing eternal suffering. Chastity for all singles no matter what the orientation is God’s law. Leave the sex revolution to die out like feminism movement.

              • fredx2

                Ask those gay friends why they want bakers who don’t want to bake them a cake to bake them a cake.

                • If you are in a business for the purpose of turning a profit, you have to abide by the same civil rights laws as anyone else.

                  • fredx2

                    What civil right says that you have to participate in ceremonies that you and your religion find immoral? Doesn’t that seem like the whole term “civil rights” has been turned on its head, and used against human beings instead of protecting them? Isn’t freedom of religion a “civil right” in this country?

                    How did being gay suddenly become the premier “civil right” in this country, trumping all others?

                  • Mike W

                    Forcing people to recognize a “marriage” that has nothing to do with biology is a complete undermining of civil rights. It is a fundamental lie.

                  • Chairm

                    Enforcing your pro-gay bigotry is not the legitimate business of government.

          • Augustus

            But the government can, as it does in Denmark, force churches to provide facilities for gay “marriages.” What we think is unthinkable today, is thinkable tomorrow, like, same-sex “marriage.” No one in the history of the human race every thought that was possible, until yesterday. Progressives will never be satisfied. They will never be content. What is reasonable today will be an offense, discrimination and bigotry tomorrow. We know how this works. Your assurances are ill informed and perhaps disingenuous (because you should know better). http://www.telegraph.co.uk/news/worldnews/europe/denmark/9317447/Gay-Danish-couples-win-right-to-marry-in-church.html

            • Did you know that Denmark has a state church, Augustus? The Church of Denmark itself chose to accept same-sex marriages back in 2012.

              But the United States is not Denmark. We do not have an official state church. The separation of church and state is so sacrosanct here that even huge moneymaking operations like CBN, Trinity Broadcasting, and Daystar Television are tax-exempt because they call themselves “ministries,” and the IRS looks the other way.

              There is no risk of the government requiring churches to cater in any way to Gay couples. None of the legal benefits of marriage come from the church anyway, they come from government. And couples in the U.S. do NOT need church approval to get a civil marriage license.

              • fredx2

                Notice that Chuck says that government will not force “churches” to do anything. However, he does not say it will not force “religious believers” to act against their consciences, based on their religious beliefs.

                In other words, your church can be free to do as it pleases, but the people in the church will be told what they can and cannot do.

              • Mike W

                But they require people to cater for Gay “marriages”. What are churches except the people that constitute them. Your idea that churches only exist within the walls of the church building is false.

          • fredx2

            What do you call the HHS mandate problems that we have been having. Get real, chuck. What do you call the pressure on Catholic schools to have to hire people who get gay married – get real, Chuck.

        • Jacqueleen

          Then, the polygamists and those into bestiality will be out to sue if they are denied a Sacramental marriage. The problem is that the Same Sex Agenda is to destroy the church…they could care less about marriage…They don’t stay that long with anyone to truly want a long term relationship such as marriage. Wake up and smell the bath house soap…do they use it?

          • None of your fears will come to pass, Jacqueleen. I feel sorry for you, though, being as angry as you are over the fact that Gay couples are just getting married.

            • Jacqueleen

              I don’t believe in fortune tellers. Stating facts is not anger…look at the violence coming from the disgruntled gays if you want to see anger and violence. They act like spoiled brats if they don’t get their way…I stand on the Word of God..They are in our prayers for conversion.

            • Mike W

              The only people exhibiting anger are the homosexuals and their supporters. The rest of us are expressing exasperation at the nonsense we are required to swallow.

            • Chairm

              Married?

              What is the basis, do you think, of a gay marriage? I mean, what distinguishes the gay relationship as the equal of the sexual union of husband and wife? And how might that distinguish the gay relationship as different from the rest of the types of relationship that are marriage?

      • LarryCicero

        If a man can marry a man because they both consent, can a man marry his mother if they both consent?

        • Sorry. “Slippery slope” arguments about incest are unworthy of a response.

          • Seamrog

            Nope, they are the logical end of your argument.

            Face it.

          • FrankW

            In other words, Larry, Chuck has no logical answer to your question, so he’s going to skip it and act like he’s taking the high moral ground.

          • GG

            What is more slippery than two men claiming to be “married”? It would be a joke it not so sickening.

          • Mike Smith

            That’s the biggest cop out ever. It is a completely valid and logical argument.

            The argument against incest usually revolves around the unwanted genetic side-effects that potential offspring can have. However, the gay rights movement has removed children entirely from a defining concept of marriage. Therefore, you can’t possibly argue that related individuals can’t get married because of certain effects on children.

            All you are left with, then, are social taboos, and homosexuality was one at one point, too. If your definition of marriage is simply love between consenting adults, incestuous relationships fit the exact same definition.

            • The Supreme Court won’t buy it, sorry.

              • Mike Smith

                You seem to be confusing logical arguments with legal ones. I’m sorry, the Supreme Court isn’t the ultimate arbiter of truth in the universe. Maybe they won’t buy it…now. But slipepry slopes are not always quick slopes. You think the Supreme Court would be even hearing these arguments 60 or 70 years ago? Heck, until fairly recently, homosexuality was still classified as a mental disorder.

                The simple fact is this: you are a hypocrite if you define marriage in terms of a basis of love and consent and yet you are not ok with incestuous relationships. I don’t need the Supreme Court to come to that conclusion for me.

              • Seamrog

                Here is where we are – which is EXACTLY where opponents of the homosexualist agenda said we would be:

                The Church and the country has historically and traditionally been against it.

                The majority of the population is against it.

                The States have legislation against it.

                Nature is against it.

                It is detrimental to our society, to our families, and to the moral fabric of our country.

                But we will get activist judges and the power of the federal government to FORCE you to accept it.

                You are moral cowards.

                • Sorry if the thought of a Gay couples getting married makes you that angry.

                  • Seamrog

                    You are not sorry – I think lying is habitual for you.

                    It does make me angry – furious in fact.

                    The homosexualist deviants who want to destroy Truth, profane sacred law, and obliterate the family literally make my stomach turn.

                    That is a noble, natural reaction to evil.

                    Evil, darkness, lies and depravity are to be shunned and combated.

                    What is regrettable is that your types run to your federal daddies because you can’t win otherwise.

                    You are moral cowards.

                • disqus_gEynqDDvb8

                  “The majority of the population is against it.”

                  Seamrog, the majority of the population has been for it since 2011. http://www.pewresearch.org/data-trend/domestic-issues/attitudes-on-gay-marriage/

                  Support for SSM is growing by a few percent every year as opposition decreases. This is partly because younger voters are replacing older ones and partly because of a major cultural shift.

                  • Seamrog

                    Nope – the pew polls lean that way, but when people get in the privacy of the ballot box, they are free to show how they really feel without the bigotry and hatred of the homosexualists.

                    Newsflash: Californians voted to ban same-sex ‘marriage.’

                • Secundius

                  @ Seamrog.

                  Just exactly how is Nature Against IT, there plenty examples of Homosexuality in Nature. Did you know that Hyena’s are born Hermaphrodites, and sex of the animal is determined by the availability of food…

                  • Seamrog

                    Did you know that hyenas also eat their young?

                    Should we promote this behavior because ‘animals do it.?’

                    Please think harder before posting.

                    • Secundius

                      @ Seamrog.

                      So do Lions, Tigers, Bruins, Polar Bears, Ohhh My…

                  • eddiestardust

                    Are human beings just animals or are we fundamentally different?

                    • Secundius

                      @ eddiestardust.

                      Human’s are the Alpha Predator’s of the World, but by definition. Human’s are STILL ANIMAL’S…

          • LarryCicero

            Can’t answer the question can ya? What if a man wants to marry his brother? Are you against gay brothers? What makes it a slippery slope? Who says they have to have intercourse? Is the government verifying that marriages are consumated? I thought your type wants them out of the bedroom.

          • LarryCicero

            Who said anything about incest. I am against child discrimination. A wife can share in the wealth accumulated through the earnings of the husband, but an adult child cannot, because of the estate tax. Therefore it is child discrimination, and I demand that children and widows be treated equally.

            • Fine, Larry. Argue your case in court if it’s so important to you.

              • LarryCicero

                So the law makes distinctions between types of people and the relationships they can have? Just because one can find a slippery orifice, it does make the opening worthy of equality. You are not in search of equality, but of normalization of the perverse.

              • LarryCicero

                Why should I not be able to divorce my wife, marry my mother, become entitled to her estate tax-free(through marriage) and then remarry my ex-wife after my mother’s and wife’s death?
                Are you bigoted against M-F’s?

          • Mike W

            Not knowing one’s biological parent always creates a risk of incest.

          • Tann

            That’s what they said when we said that allowing contraception would lead to gay marriage.

        • St JD George

          Reminds me of that old peculiar song ” I’m my own Grandpa”

          Many, many years ago when I was twenty-three
          I was married to a widow who was pretty as could be
          This widow had a grown-up daughter who had hair of red
          My father fell in love with her and soon they too were wed

          This made my dad my son-in-law and really changed my life
          For now my daughter was my mother, ’cause she was my father’s wife
          And to complicate the matter, even though it brought me joy
          I soon became the father of a bouncing baby boy

          My little baby then became a brother-in-law to dad
          And so became my uncle, though it made me very sad
          For if he were my uncle, then that also made him brother
          Of the widow’s grownup daughter, who was of course my step-mother

          Father’s wife then had a son who kept them on the run
          And he became my grandchild, for he was my daughter’s son
          My wife is now my mother’s mother and it makes me blue
          Because although she is my wife, she’s my grandmother too

          Now if my wife is my grandmother, then I’m her grandchild
          And every time I think of it, it nearly drives me wild
          ‘Cause now I have become the strangest ‘case you ever saw
          As husband of my grandmother, I am my own grandpa

          I’m my own grandpa, I’m my own grandpa
          It sounds funny, I know but it really is so
          I’m my own grandpa

          Read more at http://www.songlyrics.com/ray-stevens/i-m-my-own-grandpa-lyrics/#LwJYUIWWlCiLIzMO.99

      • FrankW

        Did the United States government invent the institution of marriage? No. As such, the United States government has no grounds on which to redefine marriage. By classifying marriage as a civil right, the government has now usurped for itself the power to determine who can, AND who cannot get married. This is a government power grab thinly disguised as a “civil rights” issue. Next up, the government will attempt the same approach with parenthood, redefining it as a civil right and determining who does and does not qualify for ‘parenthood’ – God help us all when that happens.

        Let’s walk down this road a few years, shall we? How should marriage actually be redefined? Should polygamy be legalized? If not, using your twisted logic, those opposed are nothing but bigots, trying to deprive polygamists of their rights to happiness as they define it. Should the government allow humans to marry their pets, or their personal computers? Should the government allow humans to marry objects they don’t own, such as historic buildings? Exactly how do we draw parameters to define marriage without discrimination against ANYONE’s own personal definition of how he or she defines marriage?

        The answer is that this is NOT possible, and we need to stop trying to appease every special interest group which comes forward with a complaint. The only thing this acomplishes is that is allows our government to usurp more power for itself by branching into issues and arenas it which it has no business.

        • People marrying their pets and their personal computers? Oh, brother.

          • Seamrog

            It’s worse than that…men want to ‘marry’ men.

            They want to artificially create children, or coerce others to let them raise them.

            They want to force the children of others to recognize this evil as a ‘family.’

          • GG

            Two men “marrying” each other, oh brother.

          • St JD George
          • fredx2

            My favorite was Barney Frank, during a hearing in Congress. Someone pointed out that the necessary logic of gay marriage was that there could be no objections raised to polygamy anymore. Barney Frank exclaimed “That’s ridiculous! Everyone knows that marriage is just between two people!”

            And look at the people who have already stated that they would marry their animals, and have tried to do this, either legally or by holding some sort of personal ceremony. A woman with her dolphin comes to mind.

      • JohnE_o

        You’re trying to use reason against a fear response, Chuck…

      • Veritas

        What a pack of lies. We’ve already seen people lose their business or jobs over this. I suspect that someday the homo movement will want to know even if our THOUGHTS are against them.

        • eddiestardust

          The United States Senate changed hands in November. I have a strong feeling that IF the Supremes rule against traditional marriage we will have a Republican in The White House on Jan.21, 2017.

          • Secundius

            @ eddiestardust.

            That’s what the GOP Republican’s said about the Last Election, too…

      • GG

        There is a huge impact on all of society, especially the poor kids.

      • littleeif

        Of course it will impact families …. in the same way counterfeit money impacts money… in the same way knock off Chinese Rolex’s impact Rolex.

        • I don’t think the Supreme Court will buy that argument.

          • littleeif

            Oh, Chuck, I thought you wrote “This will have precisely ZERO impact on your life” which I was demonstrating is fiction. As you know, the value of money is not dependent on the Supreme Court’s opinion of it.

            • So you consider a Gay couple’s marriage to be counterfeit, and therefore illegal, because counterfeit $100 bills and Rolex watches are illegal. It’s still an argument that the judicial system isn’t likely to agree with.

              • littleeif

                You have grasped it almost entirely! Because the counterfeit devalues the genuine. It responds to your statement as to the harm done to the institution of marriage, and that effect cannot be mollified by the Supreme Court. You cannot hide from nature and history behind judicial robes.

                • Seamrog

                  “Checkmate”

              • Chairm

                Howso?

      • St JD George
      • fredx2

        Tell that to Brandon Eich.

        Tell that to Memories Pizza

        Tell that to the teacher that almost got fired for speaking out against gay marriage. No, it is clear that we are entering a new age of governmental control of thought, mind and action, heretofore unheard of in this country. Not to mention that they want to ban the free exercise of religion, mandated by the first amendment.

        It’s kind of like the Soup Nazi: No more freedom for you!

      • Mike W

        Rubbish. Anyone providing services for wedding will be required to attend and give de facto approval. This is compulsory immorality.

        • Yes, and if a Christian florist provides flower arrangements for a Muslim couple’s wedding, it’s an endorsement of Islam.

          • Mike W

            Two Muslims marrying is not immoral.

          • eddiestardust

            Suing someone simply because they do not , in all good conscience, want to be a part of a gay ceremony is wrong…it is bullying period…You wouldn’t like it much if I did the same to you…but I won’t because Christians don’t do that…

      • eddiestardust

        Right..First you said give us Civil Marriage and everything will be ok…then it’s Oh we can’t win referendums in the various States so we will use the Judiciary to get what we want…Now it goes to The Supreme Court and most of us realize you will probably get what you want…all the while you and your flock have been bullying folks right and left and suing them just because they disagree with you…Well some of us…probably more than you realize will not back down EVER…remember that The Roman Catholic Church is 2,000 years old…and the gates of hell shall not prevail against us.

      • Chairm

        Already false.

  • Charles Putter

    HOLY matrimony is not wedded to the constitution. It does not need the approval of black-robed bigots for its existence. Their pomposity will lead them to the conclusion that civil marriage is a FRIVOLOUS legal contract that excludes UNWED couples from obtaining “benefits”. How cogent!

    • eddiestardust

      I think gays are discriminating against folks who never marry!

  • JohnE_o

    Sounds kind of like the reasoning that since the Declaration of Independence references “The Year of Our Lord” then the US must have been founded as a Christian Nation.

    • GG

      Yea, the founders would embrace the false idea on men “marrying”. Great logic.

      • JohnE_o

        Knee-jerk much there GG?

        At this point, the best that can be pulled out of the upcoming Supreme Court case is that Kennedy dissents on State’s Rights grounds – that each State has the right to define how it licenses marriages and that this is not a Federal issue.

        You still have the problem of the 14th Amendment and how States must recognize SSM’s performed in New York, which legislatively introduced SSM.

        As I’ve said elsewhere, if you want a solution that recognizes Traditional Marriage only, then write a Federal standard into the Constitution by the amendment process.

        Pointing to the clause ‘and our posterity’ just isn’t going to cut it.

        • GG

          You mean logic and common sense are disregarded? Yes, that is true. As I have said here before the law is only as good as the black robed ones are moral and logical.

          Anyone who claims posterity includes sodomy as marriage is nuts.

  • Guest

    Some interesting statistics, for what it’s worth:

  • Ford Oxaal

    I think the article puts forth a legal argument as brilliant as the times we live in are interesting. The argument is unassailable because it lives within the bedrock of the Constitution. The Constitution recognizes that a just civil government is duty bound to the well-being of the procreative family first, and all other concerns second. This then puts marriage, the societal basis of support for the procreative family, in a special class apart from all others, and is therefore legally unaffected by the fourteenth amendment and therefore unaffected by all the darts and arrows being tossed around in the peanut gallery. Absolutely brilliant.

  • St JD George

    by AUSTIN RUSE22 Apr 20150

    The left often argues the U.S. must get with the rest of the world, that the U.S. is a backwater if we don’t. This argument is being made in the Supreme Court case over same-sex marriage by the former Dean of the Yale Law School who is also the former principle lawyer in Hilary Clinton’s State Department.

    Professor Harold Koh and a handful of legal luminaries have told the Court the U.S. must join the “emerging global consensus” in favor of same-sex marriage and that same-sex marriage is about to sweep the world.

    But is this true?

    Law professors Lynn Wardle, Cole Durham, and 52 other legal scholars say “not so fast.” In a dueling brief, Wardle, Durham, and the rest point out that same-sex marriage is quite rare around the world. There is no “emerging global consensus.”

    Only 17 of the 193 member states of the UN allow for same-sex marriage, and a court imposed only one of those. Wardle and Durham point out that 47 nations have constitutional provisions enshrining man-woman marriage, and more are coming.

    Same-sex marriage proponents conclude such positions can only come from hatred or animus toward homosexuals. Wardle and Durham say no: “95 of the 176 states allowing only traditional marriage have decriminalized homosexual conduct. Eight-eight have affirmatively extended constitutional and/or legislative protections to LGBT individuals.”

    Koh says the nations that have refused to adopt same-sex marriage are “anti-models”, those that a constitutional democracy like the US should not follow. Wardle and Durhamsay, in fact, “they are constitutional democracies that share our values of individual freedom.”

    Wardle and Durham survey the global justice system and find that courts, both national and international, uphold man-woman marriage:

    Twelve national and international tribunals in eleven countries have explicitly upheld male-female marriage as consistent with human rights. These include some of the jurisdictions with the earliest and strongest LGBT protections in the world. They are hardly backwoods courts or bastions of bigotry.

    The courts and tribunals that have upheld man-woman marriage against claims of discrimination include the European Court of Human Rights, the UN Human Rights Committee, along with national courts in Germany, Austria, France, Spain, Finland, Italy, Ireland, Chile, and Colombia.

    The professors chide Koh for only referencing two of these many decisions upholding man-woman marriage. They say, “Particularly notable is the repeated refusal by the European Court of Human Rights to mandate same-sex marriage,” and, “the European Court’s Grand Chamber declined to recognize a fundamental right to same-sex marriage.”

    Wardle and Durham are keen for the High Court not to freeze the public discussion and argue that electoral and legislative resolutions and compromises result in greater stability.They say:

    Only one country on the entire planet — Brazil — has mandated via its judiciary that same-sex couples across its nation have access to traditional marriage. If the US Supreme Court is concerned about being out of step with the world’s leading democracies, it couldn’t make a bigger mistake than becoming one of only two nations in the world to cut democracy off at its knees and force its judicial will upon the people.

    • Charles Putter

      There is no “emerging global consensus” ………………. So true. Do you recall when global warming a.k.a. climate change was settled “science”. Just imagine a spurious computer model was called science. Up to now no one has put forward any widely acceptable THEORY of how clouds form. That’s right, the proponents, and their legal bulwarks, can’t account for cloud cover.

      • St JD George

        I was jousting with another fellow and I told him to bring it on. My plants love CO2, they grow bigger and stronger, though I have to mow the pasture more often. I enjoy riding the tractor though so that really isn’t a negative, just a little for diesel which means a little more … CO2. I’ve noticed that the winters lately have been growing colder (summers for that matter too) and longer as well. I’d welcome a smidgen of warmth and a return to a longer growing season.
        But seriously, don’t get me started …

      • St JD George

        I saw this the other day too (link below) and about puked. Putting aside the data manipulation and whether it’s real or not, I thought to myself, what self respecting so-called-scientist talks to another human being that way. The only people who talk that way are bullies who have something to hide, or aren’t honest or smart enough to acknowledge what they don’t know. Nobody says shut up because I’m right and you better not question what I’m telling you because if you question my superior authority “it might be the beginning of the end of an informed democracy.” Only dictators talk that way.
        http://www.truthrevolt.org/news/degrasse-tyson-journalists-dont-question-scientists-or-climate-change

    • eddiestardust

      You are right..most of the nations of the world do not support same sex marriage.

      • Secundius

        @ eddiestardust.

        At the present time only 4-countries, including the United States. RECOGNIZE “Same Sex” marriages. But, 24-countries, PREFORM “Same Sex” marriages…

  • Objectivetruth

    Here we go, everyone. Lifesitenews is putting together a full page ad in the SF Chronicle supporting Archbishop Cordeleone. Let’s support it. Thank you, Lifesite:

    https://www.lifesitenews.com

  • Poconos Exile

    This is a completely absurd proposition, as it eliminates from the meaning of “posterity” naturalized citizens. Posterity cannot mean biological descendants only. This guy should have his doctorate revoked.

    • Dennis Bonnette

      You may define “posterity” any way you wish. Still, the simple fact is that it is legally defined as meaning biological descendants exclusively, as I documented in the article thus:

      “According to Burton’s Legal Thesaurus, fourth edition (2007), “posterity” means, exclusively,
      entities, such as “later generations,” “children,” “progeny,” and other
      terms unequivocally identified with biological descendants.”

      I do not doubt that immigration helps build a society, but the fact remains that
      traditional marriage is the primary way in which a society perpetuates its existence. As such, society has a vested interest in affirming that natural institution’s essential nature and definition as a union inherently open to procreation in the sense I described in the article and in an earlier comment.

      • Poconos Exile

        The problem is that YOU’VE defined posterity by cherry-picking a definition that serves your purposes. Yes, offspring is the primary definition of posterity, but to ascribe it to the framer’s and what they in mind when formulating a document that defines political community is absurd. For one thing, it would eliminate the majority of U.S. citizens from its definition, seeing that we’re almost all descendants of post-revolutionary naturalized citizens. Are you suggesting that the pre-amble doesn’t apply to us?

        • GG

          It was not talking about “gay marriage”.

          • Poconos Exile

            So what? The author’s narrow definition has implications that go way beyond talking about gay marriage. If you want to attack gay marriage fine, but definitional consistency has implications. If you fail to recognize that you’re setting yourself up for a world of hurt.

            • Ford Oxaal

              The legal argument being put forth is that the fourteenth amendment does not apply to marriage because marriage has no “peer”. Whether or not societal support for posterity (marriage) may or may not itself affect more than that posterity does not diminish the argument.

              • Poconos Exile

                Nice slight of hand. There’s nothing in the definition of posterity offered above that limits it to descendants conceived within marriage. Posterity isn’t legitimate biological descent. Bastards are posterity too. There’s also the fundamental problem that the *preamble to the Constitution is generally thought to have no legal power,* so this entire proposition is moot.

                • Ford Oxaal

                  Let’s define posterity as future generations of citizens. Marriage is uniquely able to secure blessings for those generations. It has no peer. Therefore it is immune to broadening under a fourteenth amendment argument because it is uniquely situated before the law. In fact, as an institution, it precedes the law, and gives rise to the social contract that forms the basis for law. You don’t want to gnaw away at that root, do you?

                  • Poconos Exile

                    If you define posterity as future generations of citizens than you cannot limit it to biological descent, because we permit naturalization (and we should). Since that’s the case, the argument for the primacy of marriage based on posterity is flawed. Whether or not I revere marriage as an institution, the argument is flawed.

                    • Ford Oxaal

                      All that is necessary for a fourteenth amendment argument to fail is a showing that marriage is uniquely situated before the law as regards the purpose of the Constitution.

                    • Dennis Bonnette

                      I think one can legitimately make the case that when the Preamble refers to “ourselves” and to our “Posterity,” i.e., biological descendants, it referred to the people living at the time. So, even if you don’t like the implication, it is their biological descendants who are at issue — at least initially. You are correct in noting that naturalization introduces citizens who are not biological descendants of the Founders.

                      Still, what is essential is that the concept of biological descendants was introduced as a legitimate object to have its blessings of liberty secured. Clearly, naturalized citizens also will have biological descendants — and the vast majority of citizens down through our nation’s history are either biological descendants of the Founders or of those who came later.

                      The process whereby this ongoing production of posterity is obtained is traditional heterosexual marriage, not same-sex unions. That is why the force of the argument becomes centered on the fact that solely heterosexual unions can produce the kind of posterity mentioned in the Preamble.

                    • Poconos Exile

                      The courts simply wouldn’t embrace a definition in this manner when it would have potentially broad and problematic implications.

                    • eddiestardust

                      They already did that in “Roe” and it looks like they are about to do it again.

                    • Poconos Exile

                      Well, I think you’re stretching the concept of posterity to mean marriage. What about illegitimate children? Not posterity? The point is simply that posterity and marriage aren’t necessarily equivalents. If they’re not, then the argument falls apart.

                • It’s sleight of hand, not slight. Geez.

                  • Poconos Exile

                    Look out! It’s the typo police!

                    • Secundius

                      @ Guest.

                      Me and the “Typo Police” are old Friends, It’s the “Ever Mysterious Fo-Police” you have too watch out for…

            • Note the verbal engineering. It’s not dispute, but attack.

              • Poconos Exile

                Fine, defense of traditional marriage in order to deny the legal status to others. Is that better?

        • eddiestardust

          No Guest, you have decided that your viewpoint is more important than traditional viewpoint. Sorry but most of us don’t really believe that and it shows because you did not get the right to a gay marriage by the actions of the people through referendum through the States…you got it through Judicial Fiat….which is unconstitutional.

    • GG

      How do we get descendants? From “gay” actions?

      • Poconos Exile

        At issue isn’t “descendants,” it’s “posterity.” My point is there’s a difference when talking about law and politics, and the author chooses a narrow definition to fit his argument. If posterity is defined that way he would like, it would not apply to the majority of current U.S. citizens, as we’re not descendants of revolutionary era Americans.

        • GG

          That is silly. Descendents all come from heterosexual acts.

    • eddiestardust

      Bud, you are part of that posterity because of your biological parents

      • Secundius

        @ eddiestardust.

        Hypothetically speaking, what POSTERITY is there, if both of your Biological Parents, took PLAYED no part in your Upbringing…

  • Poconos Exile

    Here’s an example of the problem with this argument: “The solders’ names are recorded for posterity.” Does that mean that they are recorded only for a person’s biological descendants to remember, or for all community members who make up the polity for whom someone fought and possibly died? I’d hate to think that war memorials are only for family members and not for society at large.

    • GG

      The soldier would not have any descendants if not for heterosexuals. Can we come down to reality now?

      • Poconos Exile

        That makes absolutely no sense whatsoever. What about a soldier’s nephews? And the point is that service is to be honored by posterity in the broad sense of political community, not just someone’s relatives. I’m being very realistic. You’re just afraid of logic and common sense.

        • GG

          His nephews got here by heterosexuals too. Give it up.

          • Poconos Exile

            I get it. You hate fags.

            • Objectivetruth

              I get it. You hate Catholics.

              • And Evangelicals, and Orthodox Jews and Muslims…

                • Poconos Exile

                  Ahhh, but not all faith traditions reject gay marriage. Reform Judaism permits it, for example. Would deny them their religious freedom? Methinks you would.

                  • Chairm

                    Not on the basis of their religion, but by a radical departure instead.

          • Poconos Exile

            I get it. You hate fags.

            • GG

              No, I am just not a dolt.

            • Objectivetruth

              When your argument holds no logic or intelligence, always resort to accusing your opponent of hating “fags.”

            • Oh geez another embarrassment from NEPA. You’d think the convicted politicians and judges would be bad enough…

              • Poconos Exile

                Don’t forget the Catholic churches with signs saying “No Trespassing.” Now that’s embarrassing.

    • disqus_gEynqDDvb8

      “Posterity” doesn’t simply mean “biological descendants.” It also means “future generations,” including future generations, or, as you say, “all community members.”

      • Chairm

        Obviously even the “gay” descendants who’d help comprise our posterity will depend on the sexual basis of marriage which is just as obviously procreative in kind and commonly procreative in outcome.

  • Secundius

    The Constitution of the United States is a WIP document, not a Static document…

  • hombre111

    It also upheld slavery and no voting rights for women.

    • And you violated your promise to leave. Everything is imperfect.

      • Poconos Exile

        That’s right, hombre111, this is an echo chamber. Only approved perspectives are allowed, please.

        • If somebody makes a declaration that a certain place and its inhabitants are unworthy of his or her time, and proclaims an intent to leave permanently, as Hombre111 and does not- they should be reminded to keep their promise as an act of charity.

  • Mike W

    The only real issue “under the law” or by way of legal process is the supposed right to not testify against one’s spouse. I believe this is related to the idea that in the past, a woman was often completely dependent on her spouse and so it was therefor considered unreasonable for her to put that in jeopardy. To say that should be used to redefine marriage is a nonsense and takes no account of the relative gravity of marriage and the right to not testify. The right to not testify is an anachronism theses days anyway and this could easily be dealt with by the courts in ways that are nowhere near as intrusive as redefining marriage and by any reasonable judgment, should be.

    If we are talking about actual protection of people affected by the law we should be talking about the actual protection that is afforded children who are raised by their biological parents.

    The fact is the courts have no right to make new laws or to redefine social constructs against the democratic will of the people, which is what they are trying to do. How they manage to spin the arguments remains to be seen but I suspect it is going to have to be voluminous to hide the basic guile that is required.

  • Cicero

    I’m not an attorney, but this seems flimsy at best. As worded it seems to exclude immigrants who were neither the citizenry at the time of the Preamble’s composition nor its posterity as defined here.

    I think a better argument is that the 14th Amendment arguments don’t stand because no one is being prevented from marrying anyone as they were in the miscengenation laws days. What’s at stake is what it means to marry. Adam and Steve are, indeed, allowed to marry under current law–just not to each other because that’s not what marriage is.

    Similarly, I cannot by myself go to the courthouse and incorporate as a city because I don’t meet the definition of what a city is. Am I being denied equal protection under the laws? I argue, “no” because if I did go to the courthouse with the necessary grouping of people and territory (and whatever other requirements there are), I could become the founder of a new city. I just can’t *be* a city or define my spare bedroom as one because that’s not what it means to be a city.

  • Paddy

    Our Marxist-Democratic Party justices want gay marriage, so they’ll pervert our Constitution to take us there. Nothing new.

  • Ford Oxaal

    Any government that compromises family is illegitimate. Gay marriage compromises family because it goes too far in blurring the ends of marriage toward something other than creating and forming the next generation. Therefore, whatever government decrees gay marriage the law of the land is illegitimate.

    • Gay families are families. All gay people, married or not, are members of families.

      • Mal

        The homosexual couple can never naturally get children to create their own family. They sometimes use technology and a third person. Real marriage does it naturally – it has been doing it faithfully for thousands of years. It is unique and precious. It needs to be celebrated and protected.

        • Secundius

          @ Mai.

          That’s not true at all. There are Millions of Straight Couple’s that can’t, for Whatever Reason have Children of Their Own. Which have to use the Same Methods that Gay Couple’s Do…

          • Chairm

            You exagerated.

            Most married couples who use IVF or surrogacy (relatively very few) do not go outside their sexual relationship for sperm and ova.

            The legal default is clearly expressed in the marriage law’s marital presumption of paternity. Its sexual basis is not one-sexed, of course, nor is the sexual basis for IVF and surrogacy.

            That is clearly different for the same-sex sexual basis for the ssm side’s gay emphasis.

  • Edmund T. Dean

    The logic here is strange. I agree that homosexual marriage is not a 14th Amendment
    right but I don’t think you can argue that heterosexual marriage is either, for the
    following reasons:

    – it is wholly possible for a homosexual union to produce children as long as IVF and
    surrogacy are permitted under the law (as they are).

    – it is wholly possible for children to be conceived, born, and raised effectively outside of marriage.

    I think a better argument would be that the 14th Amendment does not describe or define marriage at all. Trying to contrast heterosexual marriage with homosexual unions on constitutional lines leads to some very shaky distinctions which I firmly believe hinder rather than help the traditional marriage argument.

    • eddiestardust

      The use of iVF is not natural period. Just because we can do such a thing doesn’t make it good or right. Children though, deserve both a Mother and Father.

    • Chairm

      Neither IVF nor surrogacy make it possible for the one-sexed relationship to make babies. Pointing outside the relationship makes this obvious distinction rather stark. Indeed, same-sex sexual stuff is irrelvant to your thinking on IVF and surrogacy.

      Same-sex sexual stuff occurs outside of SSM (in whatever guise). So the same-sex sexual stuff does not distinguish the homosexual relationship, as per your own thinking.

      It does come down to what makes marriage, marriage. The Court’s own jurisprudence treats marriage as fundamental to society. What makes marriage fundamenal? It is the type of sexual relationship that is procreative in kind.

      The ssm complaint is that the man-woman requirement is heterosexual in kind. This concedes procreative in kind. It is a distinction they can not out aside as it is the sexual basis for their complaint. And for their homosexual emphasis.

      Equating that emphasis with procreative in kind would render absurd the Court’s jurisprudence on marriage as a fundamental right. It would negate the sexual basis for such a right. That, for the ssm side, would negate their gay theme.

      Neither IVF nor surrogacy makes up the difference.

  • Larry

    To quote Eric Hoofer:
    “A dissenting minority feels free only when it can impose its will on the
    majority: what it abominates most is the dissent of the majority.”

    Thus we have gay marriage, private companies being forced to do things they based on some convoluted concept of privilege, and the elite naming anyone who does not agree as racist, bigoted, sexist, etc.

    The Supreme Court has ceased to interpret and has taken on the duty of illegally amending the Constitution. This was started before the ink dried on John Hancock’s signature, only today’s Court lacks courage, character and conscience that the earlier Court’s possessed.

  • One question for all the Freepers and so forth who are reading this.

    Why didn’t FreeRepublic or Breitbart cover the NOM March for Marriage in DC yesterday?

    Why did you all completely ignore it? You didn’t even link to the live feed. Why didn’t you watch? Why didn’t you show up?

    Attendance was less than 1000 people, all bussed in.

    How are you supposed to be defending marriage if you won;t even show up?

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