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Defending Traditional Marriage From Judges

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This Election Day, voters in eight states will go to the polls and decide whether to give the traditional definition of marriage, the union of one man and one woman, the protection of an amendment to their state constitutions. These amendments that are designed to protect traditional marriage from being redefined by radical state and federal judges, and to make sure that voters have a chance to be heard on this fundamental issue.

How has it come to this? Why do voters have to vote on amendments to state constitutions to maintain the definition of something that has been settled in western civilization for thousands of years – long before our constitutions and laws were written. Simply put, the answer is judges.

Activist judges in several states have taken it upon themselves to redefine – or demand that democratically elected legislators redefine – the historical and commonly understood meaning of marriage. All without any input from voters.

A few years ago, four out of seven judges on Massachusetts’ Supreme Court redefined marriage in that state and then ordered their state’s legislature to comply. Just last week the New Jersey Supreme Court ordered that state’s legislature to pass legislation that would either allow gay marriage outright or give all the rights and benefits of marriage under a name other than “marriage”.

Liberal activists attempt to use the judiciary to redefine basic cultural institutions because they know they are unlikely to achieve their goals if voters have a say in the matter. The marriage issue is a perfect example.  By gaining the legalization of gay marriages in one state, they will seek to use the federal judiciary to force other states to officially recognize such unions, whether those states allows gay marriage under their own laws or not.

The risk is very real. Due to a quirk in the Massachusetts state constitution, gays from outside that state are not allowed to marry there if their home states don’t allow such marriages as well. Currently none do. But thanks to New Jersey, this will change in 2007. Will the rest of the country allow itself to be dictated to by judges from other states?

The oldest and most fundamental institution of society is the family, and the basis of the family is marriage. Over the last several decades, failed marriages, no-fault divorce laws and out of wedlock births have wrecked enough damage on the family, and by extension, society in general. It hardly seems logical that we should sit by and watch judges inflict  more fundamental damage.

To suggest that we can suddenly change the definition of marriage and ignore thousands of years of human history without the possibility of negative consequences is to deny reality. The ripple effect across our legal system involving such issues as insurance, inheritance, child custody, property, etc. would be incredible. It would hit our court system like a tsunami and please no one but the trial lawyers.

Despite some of the rhetoric you may have heard, these amendments are not a restriction on anyone’s rights. It is simply a way to codify in our state constitutions the marriage laws we already have on our books, thereby giving them more protection from activist judges and making them more difficult to change without voter approval.

While a constitution should only be amended for the most important of reasons, the protection of the definition of marriage is such a reason. If we allow the judiciary to rewrite our laws, redefine our families, and restructure our society without so much as a vote of the people, then we no longer have a democratic form of government. Approving such an amendment takes the issue away from the courts and puts it squarely where it belongs – with the people.

Over the past several years, voters in states all across our country have weighed in on the definition of marriage, and the result has been a unanimous and resounding verdict. In each case, voters approved state amendments defining marriage as the union of one man and one woman and put the issue beyond the reach of activist judges.

This Election Day, voters in eight states will be faced with the same question. They should be mindful that if they don’t settle the issue, they risk having judges do it for them.

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About Drew McKissick

Drew McKissick is a political consultant with over twenty-five years of experience specializing in political strategy, planning and organization as well as the development of grassroots related political action programs. He has worked as a political activist at the local, state and national levels, and has served in elected and appointed positions at all levels of the Republican Party, including serving as a member of the Republican National Committee. He also writes a regular column providing analysis and commentary on current events.
  • http://jetfireone.blogspot.com/ Jet in Columbus

    You’re joking with this; right? Judges are great until you disagree with them, then they’re radical activist agenda-pushing renagades.

    Give me a break.

    The Republican party has been campaigning against anyone who would thwart Bush’s absolute power, and since the legislation has become his pawns, he’s gone after the judicial branch trying to break down the constitutional system of checks and balances.

    Gay marraige is just a smoke screen to try to distract the voters from Iraq, and you know it. If gays get married, it won’t effect your life one tiny little bit. that’s been proven in Massechusettes and all over the west coast.

    It’s just the right-wing religious freaks trying to help Bush achieve absolute and dictatorial control of everyone’s life.

  • Dr. Kurt

    YAWN! The same trite nonesense we keep hearing from knee-jerk evangelical neo-cons. The truth is, there is no excuse for denying civil liberties to gays & lesbians, or to African-Americans, or to any other American citizen. Marriage confers over a thousand such privileges; the ethical need to extend these protections to all Americans is hardly a threat to anybody – it is our duty.
    An activist judge is one I disgree with, right?

  • Brent

    Sorry Drew, you left yourself wide open for vitriol on this one.

    Jet, there’s no possible way with a constant barrage of Iraq coverage/hawk and dove propaganda/reporting from the old and new media that gay marriage is a Bush smoke screen. It’s like putting a candle in front of a floodlight and talking about how bright the candle is. Contrary to bumper-sticker opinion, there are those of us who lean more right aren’t that stupid or that naive. Thanks for playing, though.

    That said, I don’t care which judges vote for which party, it isn’t right for the judiciary to legislate from the bench, which is what happened in NJ with same-sex marriage, in Washington with the eminent domain ruling (although the media did blow that out of proportion, leaving out the states’ rights condition), in Wisconsin with the Tom Barrett/Mark Green double-standard upheld by a refusal to hear Green’s lawsuit, on and on.

    Republicrap or Democrap, it doesn’t matter. Judges are to give light on law within the context of a case presented, nothing more.

    Is it November 8th yet?

  • http://jetfireone.blogspot.com/ Jet in Columbus

    No Brent, wrong. Judges are the check in “Checks and balances” that keep the legislature and/or the president from going to far in an abuse of power.

    Through the voter, people are trying to legislate other people’s lives and morality on an issue that doesn’t belong in the public forum. Nor does something as private at prayer but if they have their way Jewish children would be forced to recite christian edicts and grace before meals at public school.

    The perfect example is the Republican Party trying to intervene in the Shaivo case in Florida where they had no business being, but to kiss the ass of the religious right.

    If your supposition is correct, why does Bush mention the scantity of marraige between only a man and a woman in every single stump speech he gives as he flies around the country doing partisan politics at the taxpayers expense to the tune of millions of dollars?

  • http://musical-guru.blogspot.com/ Michael J. West

    I don’t know where to start with the flaws in this argument.

    How about here:

    1) Government’s purpose is not, and has never been, to defend or uphold tradition. If that ever becomes the government’s purpose, it will be time to do away with that government.

    2) The “activist judges,” to use the same tired cliche that you are whipping out and using illegitimately once more, have done their job. Exactly that and nothing more or less. In the cases in question, they were asked whether their state constitutions included any legal clause, connotation, loophole, or any other grounds whatsoever for preventing homosexuals from marriage. To suggest that because they didn’t find any they are “activists” is such patent bullshit that I suspect even you, Drew, are fully aware of how much bullshit it is.

    3) To suggest that we can suddenly change the definition of marriage and ignore thousands of years of human history without the possibility of negative consequences is to deny reality. The ripple effect across our legal system involving such issues as insurance, inheritance, child custody, property, etc. would be incredible. It would hit our court system like a tsunami and please no one but the trial lawyers.

    Now how can you possibly say this–essentially admitting that the gay marriage issue involves the legal rights that come with marriage, then say this:

    Despite some of the rhetoric you may have heard, these amendments are not a restriction on anyone’s rights.

    You mean, it doesn’t restrict homosexual couples’ legal rights in terms insurance, inheritance, child custody, property, etc.? In that case, what is the problem with “changing the definition of marriage”? If it affect those things, as you suggest that it does, then it is a restriction on rights. If it is NOT a restriction on rights, then it cannot possibly have a deleterious effect on the aforementioned items.

    You know better.

    I have to conclude that you don’t actually believe what you’ve written here.

  • RogerMDillon

    Don’t you hate when activist judges bow to the Constitution rather than the majority?

    This is like reading an article about taxes on Apr 14th by a CPA. If you were good at your job, you wouldn’t have time to be writing this today.

    Sounds similar to arguments used against inter-racial couples. “Almighty God created the races white, black, yellow, Malay and red,” wrote a Virginia judge in 1965, upholding the state’s so-called Racial Integrity Act. “The fact that he separated the races shows that he did not intend for the races to mix.”

    Please show one hetero marriage affected by the Mass court decision. Just one.

    If the govt grants rights and benefits to straight couples, then they need to grant them to gays couples as well. That’s what equality is. Otherwise, repeal the tax breaks, insurance, inheritance, child custody, property, et. al., that straights are granted. Are you okay with that?

  • http://www.nrlc.org/ Anthony G

    Show me where in the constitution it allows gay marriage.

  • http://victorplenty.blogspot.com Victor Plenty

    Next, activist judges will meddle with other ancient cultural traditions. We might suddenly find it illegal to own slaves. Honorable men might get arrested for dueling.

    These activist judges could even attempt to prevent a landlord from claiming his sacred right to spend the first night with the new bride whenever anyone renting from him gets married.

    Stop these liberal maniacs now before it’s too late!

  • http://www.nrlc.org/ Anthony G

    I like how liberals have to use fake sarcasm to try and get their point across.

  • Bill B

    Just another tired rambling missive on a topic that’s got less traction than normal. Is it just me or does it sound a bit desperate?

    It’s funny how the tone sounds like they’re the ones being oppressed instead of the folks they’d deny equal protection to.

    Just another bizarro world moment.

  • http://www.nrlc.org/ Anthony G

    I can’t wait to see the look on their faces after the good people of Colorado make marriage permanetly between man and woman.

  • JR

    Drew McKissick: Why do voters have to vote on amendments to state constitutions to maintain the definition of something that has been settled in western civilization for thousands of years – long before our constitutions and laws were written.

    If there’s anything that’s settled in western civilization, it’s that nothing is ever settled. If you’re not embracing change, you’re a member of a nearly extinct tribe in some remote corner of the globe (soon to be a tourist trap).

    Sorry you don’t get to pick and choose which traditions and values are cast aside in the name of progress. I empathize with you. I really do.

  • http://www.nrlc.org/ Anthony G

    Drew wasn’t talking about change in general he was just saying that it’s sad to see what can of shit people are dragging to the ballots these days.

  • http://musical-guru.blogspot.com/ Michael J. West

    Show me where in the constitution it allows gay marriage.

    Same place in the Constitution that it allows straight marriage. Nowhere.

    We just naturally assume that straight marriage is permissible, because there’s nothing in the Constitution that would prevent it.

    Likewise, if there’s nothing in the Constitution that would prevent gay marriage, one should reasonably assume that it’s permissible.

    Hence the rush to make constitutional amendments. Because it’s becoming clear that unless there is a specific prohibition against gay marriage in the Constitution, there is no legal means of preventing it.

  • http://musical-guru.blogspot.com/ Michael J. West

    I should concede that such amendments are perfectly legitimate ways of dealing with the issue, from a legal standpoint.

    There’s not actually any reason they’re necessary, except for political purposes and to cater to the whims of selfish, self-righteous, ignorant, and yes, bigoted people.

    But they’re legally valid.

  • Leslie Bohn

    No need to assume, MJW. The 9th amendment reads as follows:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Translated: Just because a right ain’t in here don’t mean you ain’t got it.

    One might also consider the 14th amendment, which guarantees equal protection to all persons under the law.

  • Bill B

    The appropriate portion of the 14th amendment;

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  • http://www.nrlc.org/ Anthony G

    “We just naturally assume that straight marriage is permissible, because there’s nothing in the Constitution that would prevent it.”

    So maybe we shouldn’t even bring it up. Everythings worked so far…

  • http://musical-guru.blogspot.com/ Michael J. West

    So maybe we shouldn’t even bring it up. Everythings worked so far…

    Tell you what, Anthony. The day you say, “Maybe we shouldn’t even bring it up” about overturning Roe vs. Wade, that’ll be the day I stop supporting gay marriage.

  • http://adreamersholiday.blogspot.com Lee Richards

    To all–just wondering: So, when we look up ‘marriage’ in the dictionary, what do you think the definition should be?

  • http://jetfireone.blogspot.com/ Jet in Columbus

    A life long commitment between two consenting adults… period.

    Gay marraige doe NOT touch or effect your life in the least, nor will it ever, unless you’re some self-righteous jerk who thinks your self worth is base on how many people you think you can judge.

  • Matt

    Does a life long commitment mean there will be no more legal divorce? Why only two adults? I think we need another definition. I don’t have the answer, but I think we need to clarify a few things. How about this: a very informal and non-binding agreement between some number of individuals to remain together as long as they are so inclined with no real consequence upon the dissolution of the agreement.

  • Arch Conservative

    “Please show one hetero marriage affected by the Mass court decision. Just one.”

    Well gee if I married 8 women at once that wouldn’t affect anyone else’s marriage either would it Roger. So by your logic we should legalize polygamy?

    The fact is that no one’s civil rights are being infringed upon by banning gay marriage. Every man and woman in America is free to marry the person of their choosing of the opposite sex. Marriage 1 man 1 woman. Don’t like that? Bite me!

  • Arch Conservative

    Everyone wants a definition of marriage so how about this one:

    Marriage… is the union of one man and one woman that has been defined this way in American society since the founding of this nation and is still desired definition by the vast majority of the American population

  • Matt

    Arch, don’t you get it? There is a small but vocal minority that might be offended by your last comment.

  • Leslie Bohn

    Mr. Conservative:

    I have a simple question, and I’m not being facetious. My next door neighbors in New York City are a gay couple that have been together for 9 years. They have a child. They love each other and have seen each other through a lot of trouble. Why, seriously and honestly, do you, who live far away and will never meet them, not want them to be married? Why? I know you’ll try to come up with a glib, sarcastic answer, but I ask you to resist and actually think about why. Go ahead and post your glib answer if you’d like, as I’m sure that will amuse many. But also, please think about why — really why — Glenn and Ray shouldn’t be married, from your point of view.

  • Bliffle

    You can’t blame anyone for wanting to get in on the legal and financial scams that heteros have created for themselves in the “marriage” game.

  • Arch Conservative

    Fair enough question Leslie…..

    I am against gay marriage because marriage is a unique cultural institution that has always been defined a certain way in American society and which most Americans want to continue to define in that very way. I do not believe a small vocal minority has the right to dictate to the vast majority of our society what our cultural norms and practices will be.

    That being said I am in favor of civil unions which are recognized by the state and bestow the same legal benefits upon those who enter them as marriage and are also subject to the same constraints.

  • http://jonsobel.com/ Jon Sobel

    Fact is, what some call “activist judges” are, most of the time, simply members of the judiciary doing what they do, which is to interpret the constitution (of the US or of their state) in the light of current standards and mores. Current standards and mores are changing. Of course, marriage has traditionally been considered to be between a man and woman, but that’s only because in the past gays were (in most Christian cultures, anyway) marginalized, persecuted, and/or pretended not to exist. Now that gays are in the open, and accepted by society on the whole, it’s time to interpret our laws correspondingly.

  • Robin Kavanagh

    So Arch, what is the difference between civil union and marriage to you? The way I see it, all marriages are civil unions and all civil unions are marriages. In both cases, you apply to the government to be bound. A religious figure can perform a marriage ceremony, but it’s not legal unless you apply to your local board of health for a license–a civic organization.

    My first marriage was officiated by the mayor, and my second by my sister’s boyfriend who was ordained as a minister online. Does that mean I was not technically “married” to my first husband?

    So what’s the big deal over semantics? If religious proponents do not want their church or religious leaders marrying two people of the same sex because it goes against their religious beliefs, fine. Religion is a private institution that has the freedom to impose such rules on its congregations. But why do they care that two men or two women are recognized as married by the state, an institution that represents everone, not just “believers”?

    I think that’s where the line gets blurred, religious beliefs vs. civil rights. And people need to get over their own prejudices and recognize that the situation is the same as when African-Americans fought against segregation in the south or women fought for the right to vote.

  • Mike

    So, when the Supreme Court votes to outlaw abortion will Rightwingers call them “activist judges”?

  • http://www.diablog.us Dave Nalle

    I will, Mike.

    Dave

  • Marjorie

    Arch,

    You wrote,

    “marriage is a unique cultural institution that has always been defined a certain way in American society”. Until recently, that definition meant one-man-of-the-same-color could only marry one woman-of-the-same-color. It wasn’t just tradition though, it was law. It was law – and those laws were defended as “biblical”, “God’s will”; without the laws, traditional marriage would be threatened and American society would collapse. I’m certain you agree that those laws were right and should be adopted again – in fact, I’m betting you’re working hard to get a constitutional amendment enacted!

  • RogerMDillon

    AC, what are you doing out of your cave. If you had any self-respect, you would still be embarrassed by your prediction that the Repubs would hold the house. Make sure an ambulance is standing by before you see House Speaker Pelosi during the State of the Union.

    “Well gee if I married 8 women at once that wouldn’t affect anyone else’s marriage either would it Roger. So by your logic we should legalize polygamy?”

    First, I don’t believe you could get one woman to marry you let alone eight. Second, you are one of the last people who should use the word logic. Lucky for you, AG has reared his oversized forehead.

    Since you have provided no evidence, then we’ll consider the issue of gay marriage affecting anyone else’s closed. If nine consenting adults want to get married, who am I to say no? I don’t know of any compelling reason why they should not be allowed, but am willing to listen to arguments against.

    The fact is your civil right aren’t violated, so you don’t care about anyone else’s.

    “That being said I am in favor of civil unions”

    Wow, whenever I think you can’t look anymore foolish, you spit out a gem like this. If they have the same legal benefits and constraints, it’s the same thing. Let me guess, you like soda, but are against pop.

    “A rose by any other name…” – Shakespeare.

  • Baronius

    One of the great freedoms of this country is the freedom of self-rule. The people are free to pass the laws they choose to. The judiciary is assigned the duty of determining whether a law contradicts the Constitution. They do not have the authority to invalidate a stupid law.

    You may see a law against gay marriage as stupid. If you want to win the game, you’ve got to get 51% of the legislature to agree with you.

    You can’t get something overturned by the courts just because you don’t like it. When a judge does that, it’s judicial activism. Roe was judicial activism, invoking a tenuous theory of the Constitution in order to do what they wanted. If the Court said that abortion were illegal, that would be judicial activism too. If I remember correctly, Brown v. Board of Education was a model of judicial restriant.

    Sometimes, a decision is made on a small point of law, leading to a highly-charged outcome. I believe that if the tables were turned in Florida in 2000, the Court would have found Bush’s recount to violate the equal protection clause.

    I haven’t studied all the state constitutions; maybe some of the state Supreme Courts weren’t overstepping their bounds by endorsing gay marrige. Either way, the question is off the table once a state defines marriage in a constitutional amendment.

    What about civil rights? Marjorie compares gay marriage to interracial marriage. The usual flippant response is “gay people have the same right to marry people of the opposite sex”. But that really isn’t a throw-away line. Laws cannot restrict your actions based on who you are, but they can restrict your actions. They can even restrict your actions stupidly.

    This post is far too long, so I’ll shut up for a bit.