Marriage, the Constitution, the Courts, and the Congress

Originally written 13 July 2004

Marriage, as a civil institution, serves a single purpose - perpetuation of the the population. The state has no other interest in the institution of marriage. If, therefore, the state is to recognize the institution of marriage at all, it should only be as it ensures the propagation of the species. Homosexual unions do not make any such assurance, and should therefore be of no interest to the state. The state may not have an interest in preventing the union of homosexuals, but there is no reason it should provide any benefit to such a union, nor the members thereof.

As a religious institution, marriage has had a common definition for millennia. There is no reason that the state should be a party to changing the definition of a religious institution. The state has an interest in maintaining stability, and indeed, the declaration of independence itself provides this argument, in saying that "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes". The same prudence should be applied to the question of other institutions long established.

Marriage is a long established institution. It should not be changed for light and transient causes. Indeed, if it is an institution to be recognized and protected by the state, then it should be changed only when there is overwhelming need that such an institution would be allowed to change by the state.

This will indeed lead you to imaging that I am in favor of the "Protection of Marriage" amendment. But if you imagine that, you are have been much deceived.

It is the design of the US Government that change should be slow and difficult. The balance of powers guaranteed by the constitution ensure that dramatic changes are difficult to effect, and that such changes cannot be made by any small band of radicals. Indeed, even a large band of moderates find it difficult to make significant changes to the nature of the government. It is only when an overwhelming majority are of a common mind that dramatic changes should come.

The problem with the Protection of Marriage amendment is not that it is a bad idea - indeed, in many ways it supports the above arguments - it promotes a certain stability to our culture. The amendment has a very significant problem, however.

The problem is that the constitution is not the place for such legislation. The constitution defines the structure of the government. The constitution doles out roles and responsibilities. Laws regarding marriage, if they are to exist at all, are to be made by congress just as laws regarding speed limits on federal highways and murder.

The difficulty is that the courts have over-stepped their bounds by making judgements that are completely out of order. Properly elected representatives of the people have passed laws regarding marriage. The courts have, against both the design of the government and against all reason, struck down laws as unconstitutional. Congress, meanwhile, has abdicated it's responsibility and authority. It has repeatedly allowed the courts to over-step it's boundaries. In doing so, it has severely upset the balance of powers. The courts, who are not answerable to the people, act with impunity to overrule the will of the people, and the design of the government. Th congress, whose members can garner more votes by being passive rather than active, does nothing.

The crisis that faces us today is not the definition of marriage by the government. The crisis is that faces us is the crumbling system that we have used to govern ourselves for over two centuries. States have already passed laws defining marriage as a union between a man and a woman. What needs to be done now is not to create a constitutional amendment to the same effect. The crisis that we need to face is that we need to put the government back together. We need to follow the rules and systems wisely devised by our founding fathers. If we decide as a people that the long established institution of marriage should change, then so be it. But not for light and transient causes, and not through means which circumvent the methods proscribed by the long established constitution.