As an attorney I’d like to take a minute to explain how the law actually applies to this whole gay marriage thing, and I hope you will forward this to as many contacts as possible. This is information that absolutely must be circulated. Interestingly, it has nothing to do with religion; we are strictly talking United States statutory and common law here.
(I wish somehow Miss California could get this. She instinctually knows something isn’t right about gay marriage, but she didn’t have the foundational ammunition, aside from her personal moral convictions, to explain why).
The Real Law and Gay Marriage, by Patti Thornhill, Esq.
Marriage is a license, which means it is a legal status that is recognized through the mechanism of the state. It is in the same category as business licenses, driver’s licenses and professional licenses. The very fact that marriage is a licensed status means that it is not an inherent right — if it were an inalienable right, there would be no need for licensing. For example, one needs a license to practice certain trades, but one does not need a license to practice one’s religion. The first is a privilege bestowed by a state mechanism and the latter is an inherent right.
When courts declare that homosexual marriage is a right, they are making declarations that are contrary to historical law and the Constitution. They are also establishing a very dangerous precedent on many levels, including one that could be detrimental to the very people who seek the state’s recognition of their gay union.
First, allow me to explain how the concept of precedent operates in our system of law.
According to the rules of Western common law, precedent is used as a means to provide continuity, predictability and stability to the system of law. It requires jurists to look at past judgments in cases factually similar to the one at hand and use those to guide the jurist into how he should rule on the case before him. Law that applies to an earlier case that is applicable to a current case because of their factual similarities and jurisdictional connections is called mandatory authority, which means that the judge must rule on the current case according to the former ruling. This system was put into place to avoid the capriciousness that often afflicts human judges, forcing them to apply the rule of law rather than pursuing their own individual inclinations which might be contaminated by laziness, prejudice, stupidity, ignorance, etc. It also allows for the law to be applied equally to similarly situated cases.
When judges ignore precedent, they are opening the door for the rule of law to be completely disregarded. This allows the individual jurists to enjoy more power over their rulings since there are fewer legal restrictions tying their hands. Uncertainty ensues at best, and at worst, anarchy.
When jurists declare that homosexual marriage is legal because it is a civil right, not only could they not be more incorrect, but they are opening a Pandora’s box that can lead down a “slippery slope” that many advocates of gay marriage might not be aware of and certainly of which they would not support.
The fact is, because of the way our common law system works, once gay marriage is ruled a civil right, then all unions between adults will have to be regarded as a civil right as well. You simply cannot say that gay marriage is a civil right without regarding other adult unions as such as well. Thus, once the precedent is established, the next adult union that will also have to be recognized by the state with a license will be polygamous marriage. There will be no way to stop it because competent adults cannot be allowed to marry someone of the same sex while disallowing multiple competent adults of any combination the right to do the same thing. Incestuous marriages will likely follow, although the state might be able to prevent this on the basis of an overriding concern with the genetic effects on offspring of such a union.
The argument that people will marry animals is not legally sound, since animals are not considered to be mentally competent to sign contracts. The same argument applies to children — they are considered legal “incompetents” and therefore are prevented from being held to legal contracts until the age of majority.
But here is where things get sinister. There is a movement afoot, not just in some fringe groups like NAMBLA (North American Man-Boy Love Association), but also in reputable sociological, psychological, and other academic circles, to lower the age of majority for children. Some advocates even approve abolishing the age of majority altogether. Their motives vary, but some pursue this for the purpose of “sexually liberating” children (i.e., they believe that society prevents children from enjoying their sexuality by labeling them as children and applying legal sanctions to those who would encourage that enjoyment), to others who believe that society is denying children the privileges of humanhood by labeling them as minors. In fact, early in her career, Hillary Clinton wrote extensively as a children’s advocate about the need to abolish the “minority status” of children, stating that doing so would be a great leap forward in line with “the abolition of slavery and the emancipation of married women.” “Children,” she wrote, “would be like other persons…masters of their own destiny…capable of exercising rights and assuming responsibilities until it is proven otherwise.” This movement towards liberating children from the right of their parents to make decisions on their behalf is often touted by state operatives under the guise of “children’s rights.” The lowering or abolition of the minority status of children would allow them the same rights to engage in contracts as adults, including marriage contracts.
Many will scoff at this notion — “oh, that would never happen!” Of course, twenty years ago, that same response would have been evoked had anyone offered that someday gay marriage would be legal.
Licenses are bestowed by human beings through legal mechanisms because the people decide to recognize a status as a privilege. As such, they can be confined particularly to one kind of arrangement and not others. Therefore, if a community through its citizenry agrees to recognize gay marriage, because it is a privilege and not a right, they can confine the licensing to gay marriages only while legally excluding other marital combinations.
Another by-product often not considered by those lured into advocacy of gay marriage by virtue of the feel-good mantra of “equality” is that this subjects gay couples to identify themselves to the state, which they are encouraged to trust with this intimate knowledge. But once the government knows who they are, will it always be so benevolent? The government might indeed appear friendly to this status now, but governments are notorious for persecuting their own citizenry when unrestrained by the rule of law. Anarchic systems normally give way to political voids that are filled with authoritative systems. Is it impossible to consider that the system they trust to protect them now might not someday use this information and turn against them?
For most of western history, marriage was a contract between two families, and the state was not involved in this private arrangement. In the past, state licensing of marriage has reflected sinister motives. Marriage licenses were used by 38 states in the 1920s to prohibit whites from marrying blacks, mulattos, Japanese, Chinese, Indians, Mongolians, Malays, or Filipinos without a state approved license. Black’s Law Dictionary defines “license” as, “[t]he permission by competent authority to do an act which without such permission…would be illegal.” The authority to license implies the power to prohibit.
Some groups believe that the requirement to obtain a marriage license is unnecessary or immoral. Libertarians, for instance, believes that all marriages should be private, not requiring sanction from the state. Some Christian groups also argue that a marriage is a contract between two people and God, so that no authorization from the state is required; in some US states, the state is cited as a party in the marriage contract, which is seen by some as an infringement.
Most Americans don’t care what consenting adults do when they are alone, but they feel nevertheless that something regarding the gay marriage issue is just not right. They just can’t put their finger on it.
What many Americans sense instinctually is wrong with gay marriage has to do with misconstruction of the law. It is abuse by the practitioners of the law that is giving many Americans pause here; if political operatives can manipulate the rule of law to satisfy one agenda, then they have the power to twist policy in any direction regardless of traditional and constitutional legal restraints.