Marriage: Died of a Theory?

Robert Morrison on March 31, 2016

Jefferson Davis was frustrated with those Southern Governors who refused to send their troops to defend Virginia soil. Those recalcitrant governors cited states’ rights as the grounds for their refusal. If the Confederacy were defeated, Davis answered, its epitaph would read: “Died of a Theory.”

Is this not the case with marriage? Ted Cruz and many conservative legal theorists agree that it is the states and not the federal judiciary that should decide the meaning of marriage. This is Confederate, but I don’t think it is conservative.

When I pleaded with president of the American Conservative Union in 1996 to go on record in favor of a Defense of Marriage Act that would actually defend marriage throughout the Union, he opposed it. “I don’t want the federal government to have that much power,” he said.

So, he doesn’t think Loving v. Virginia should stand? That unanimous 1967 Supreme Court ruling struck down laws in every state that forbade interracial marriage. Speaking for the Court, Chief Justice Earl Warren wrote:

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…”

The Chief Justice did not say marriage is the union of one man and one woman. He didn’t have to. Everyone then understood what marriage was. It was what it had always been.

Did not Loving deal with marriage in the states? Is not the federal judiciary part of the federal government? Or is it the position of conservatives that only the federal courts can deal with marriage in the states?

From early in this controversy it was clear that marriage could never remain a state issue. We have a U.S. Department of Defense. That department must decide who is married and who is not. As soon as two Army privates learned that they could contract a marriage in Massachusetts, even if those privates were of the same sex, they would do that and demand married housing on a federal base. It was inevitable.

Dick Cheney – who was once Secretary of Defense – knew full well that “let the states decide” was an untenable position on marriage. It seems he wanted marriage to be untenable.

My argument against terming our cause “traditional” or even “natural” marriage is that it surrenders the point: Marriage is what marriage has always been. Anything else is faux marriage, an abolition of marriage.

Let us consider a related concept. Zero defects was a principle invoked if not invented by Admiral Rickover to deal with nuclear power plants aboard submarines and other naval vessels. How could any human system have zero defects?

How unreasonable to have zero defects as your standard. And how cruel to ruin good men’s careers for their failure to provide sufficient fail-safe and backup redundant systems to achieve zero defects. But Rickover was cruel to be kind. Not one American sailor has ever died of radiation poisoning.

The alternative to Rickover and zero defects is not kindly. It is Chernobyl. It is the Russian submarine Kursk. It is catastrophe.

So it is with marriage. Conservatives originally published cover stories labeling the 1999 Vermont Supreme Court’s civil union ukase “The End of Marriage.” [Weekly Standard, 1999] Maggie Gallagher wrote a book prophetically titled “The Abolition of Marriage.”

Why did we abandon such language? Why did we cease calling it counterfeit marriage? Is there a woman in America who would not know what faux marriage is?

I carried that message all over in 2012. I served aboard Heritage Foundation’s Values Bus. Representing Family Research Council, I always listened respectfully to the good pastors at each stop along our 13,341-mile route. They laid out the scriptural case for marriage far better than I ever could.

But I produced my blow-up 100-dollar bill. Using genial old Ben Franklin, I’d describe how my Secret Service friend taught me about counterfeiting. You cannot teach agents the innumerable ways our currency can be counterfeited. Instead, you must teach them what real money looks like. Once they know that, they can spot the counterfeits readily.

Fully 96% of U.S. currency circulates outside the United States. When counterfeit $50s and $100s (especially those really deceptive North Korean phony bills) enter the market, the value of real money is destroyed. People soon refuse to accept real bills in those denominations.

To help me drive home my point, I remember fondly the McDonald’s in Cleveland. We left the speakers’ platform and headed for our Quarter Pounders.

A big sign over the counter read: “Because of counterfeiting, we can no longer accept 50- and 100-dollar bills.” Thank you, Ronald McDonald! You made my point.

We have abundant evidence – from the experience of Scandinavia, from our own radicals’ publicly stated goals ( that our opponents do not seek merely to permit two men or two women legally marry. They openly and militantly seek to end marriage.

It is no wonder that Marriagender Jonathan Turley raced to Utah with the Windsor ruling and had a federal court there overturn the state’s criminal sanction on polygamy.

The best opponent of abolishing marriage I’ve heard was the Deputy in the French National Assembly, Bruno Nestor Azerot. This representative of one of France’s overseas départments is a Marxist, a black man.

Yet, he boldly asserted that the fundamental principle of the marriagenders will allow rich white men to contract with poor women of color to carry a child. If those women develop natural maternal feeling for the children of their wombs, these privileged and powerful men will demand the women surrender the children they have carried under contract. And the courts will enforce those contracts.

Thus, we have the fundamental principle of esclavage – slavery – reintroduced into our legal code. Thus, we see human beings once again made property. Thus we reduce children to chattels.

If conservatives read their Burke, they ought to understand that all of society is a union of the living, the dead, and the yet unborn. They ought to know that the Rights of Man much touted in revolutionary France surely include the right of children to “the consolations of religion and the inheritance of their parents.”

Inheritance in Burkean usage is property, of course. But it is not limited to real estate. It is a claim for all that “decent drapery of life,” to all the rights and perquisites that go with membership in those “little platoons” in which we move in society, our families.

Burke taught us an organic view of society that made for “the cheap defense of nations.” He understood that “we begin our affections in our families. No cold relation was ever a warm patriot.”

America is dying because we have government programs intent on carpet-bombing those little platoons. We have harbored and even sluiced billions of tax dollars to a criminal combination that functions in the state the way a lamprey functions – by attaching itself to a Great Lakes sturgeon and sucking out its vitals.

I lament that our own side failed to develop a vital theory of federal protection of fundamental human rights. The child has a right to be safe in the womb. En ventre sa mere was taught to me in French class, the safest place for anyone to be. And that child has a right to a mother and father. Also she has a right not to be frozen, cut up for her stem cells, cloned, or harmed in any other way.

Since more than 80 percent of all unborn children slain are the daughters and sons of unwed mothers, an attack on marriage is an attack on that institution which has provided the greatest safeguard to human life. You cannot be pro-life and be indifferent to the survival of marriage.

Even the best of our jurists and legal thinkers reject, if only inferentially, the idea that was a self-evident truth to the Founders: The right to life is inalienable and it is to secure this right that governments are instituted. And the Laws of Nature and of Nature’s God that undergird our nation’s very existence tell us what marriage is.

What is the Church’s role in view of the government’s abdication? As Richard Neuhaus said, the Church’s first duty is to be the Church. She must remain a beacon of hope and change. She must hold out the promise of forgiveness and redemption. Specifically, the Church should never yield to the untruth that men can marry men or become women. And the Church can hold up heroes and saints who embody the truth. Against this truth, the gates of hell will not prevail.

  1. Comment by Mark Brooks on April 1, 2016 at 12:04 am

    I think that the correct answer is that the Federal government, including the Supreme Court, has nothing to say about marriage whatsoever, or abortion, or a great many other things. These matters are no business of the Federal government at all. The U.S. Constitution, even as presently amended, by its plain language, makes our Federal government level a limited government. Some things are by plain language prohibited to it entirely.

    So yes, Loving v. Virginia should be overturned, because it was part of the Warren-era Supreme Court’s trampling on the plain language of the U.S. Constitution. By definition, an extra vires judicial decision is void ab initio, a nullity from the beginning, and no law. If decisions like Loving, and for that matter, Griswold v. Connecticut had been dead-lettered by the political branches as they should have been, you wouldn’t have Roe v. Wade, or Lawrence v. Texas, or Obergefell v. Hodges. You can’t give a branch of the government an illegal power and expect them to always use it the way you want. You can’t use the Constitution as a basis for identifying and taking action against illegal usurpations of power by the Federal judiciary only selectively. In so doing you undermine your own case.

    What distinguishes neo-conservatism from conservatism is this very issue, whether to adhere to the U.S. Constitution, or to violate it selectively. Once you choose to disregard its plain language, you’ve undermined it and thereby begun its irrelevancy. Without the interference of the U.S. Supreme Court, there are many areas, such as abortion and gay marriage, where Christians could claim substantial victories at the state level.

    To concede the enemy’s argument is to concede to the enemy. Don’t do that. It is wrong thinking all around. We don’t need the U.S. Federal government to enforce a particular religious vision. We need it to get out of the game entirely. Then we can go to the polls and fight and win. Because we can change our congressmen, senators and president. But changing Justices, even impeaching them, has proven pretty much impossible. Perhaps we need a Constitutional amendment to change that; after all, if the Justices want to play politics, then they should be subject to political rules, most importantly democracy. But if we put meaningful pressure on the elected branches to take on judicial usurpations and crush them, it wouldn’t be necessary. All we need is for the Constitution to be followed, and we’ve already won.

  2. Comment by John S. on April 14, 2016 at 7:15 am

    As long as marriage is the key to recognition, benefits and preferential treatment by the federal government then it is a federal matter. If you want the federal government out of marriage then get marriage out of the federal government. When Social Security, the IRS, DoD, HUD, treat a person the same, regardless of marital status, then you can keep the federal government out.

  3. Comment by Mark Brooks on April 14, 2016 at 4:17 pm

    We can keep the federal government out because it has no role in such things under the U.S. Constitution, nor, for that matter, is there any need for a federal definition of such things. In fact, there still isn’t one. Whether people are married or not is still determined by the law of their state. Even the recent Supreme Court decision doesn’t purport to change that; rather, it forces the states to extend their definition of marriage to persons of the same gender having the right to marry.

    Preferential treatment for married persons with regards to some federal benefits is an entirely separate issue, and, in the context of this article and my own response to it, a red herring.

  4. Comment by Trevor Thomas on April 1, 2016 at 4:12 pm

    After our relationship with our Creator, the most important relationship in the universe is the relationship between a husband and his wife. Marriage is the oldest institution in the history of humanity–older than God’s covenant with the nation of Israel, older than The Law, older than the church. Marriage is one of the earliest truths revealed by God. If ANYTHING is true, marriage as the union of one man and one woman is true. On this, there can NEVER be compromise.

  5. Comment by ragline on April 5, 2016 at 10:26 am

    The Supreme Court has created a legal fiction. Whether or not it becomes a social reality is up to society. People must live in truth to make the truth prevail

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