Thursday, May 7, 2015

Congress Should Preempt Marriage Issue

For too long the U.S. Supreme Court has gotten away with claiming that it has some special power to interpret the Constitution.   In Marbury v. Madison the only authority Chief Justice John Marshall could find to allow the Court to rule an act of Congress unconstitutional was the oath the justices take to defend he Constitution.

Members of Congress take the same oath and thus collectively have the same authority to interpret the Constitution.   All Congress  needs to do to express an opinion on the Constitution is for each house to vote to adopt  a joint resolution on the subject. 

Republicans  should seriously consider passing a resolution stating that the judicial branch has no authority to tell the states how they can define marriage.  The issue involves a social policy that the courts have no authority to impose their own opinions on.  The resolution would indicate that states do not have to obey "unconstitutional" court orders on this subject.  Adopting such a resolution now might cause the Court to recognize it has on authority on the issue.

Presidential approval is only needed on measures that prohibit or require some action.  A resolution expressing Congressional opinion about the Constitution doesn't require presidential action. 

14th Amendment:  "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  This section means that Congress has superior authority to determine what the amendment requires.   Members of Congress get their authority directly from the people.  Federal judges do not.

If we are to call ourselves a democracy, the people must be able to control social policy and define social institutions.   They cannot do so if autocratic judges are allowed to impose their personal opinions such as the Supreme Court did in Plessy v. Ferguson when the justices told states that they could pretend to obey the 14th Amendment by calling separate public facilities "equal".   The people through Congress and state legislatures had said that states had to guarantee "equal protection of the  laws" not "separate but equal protection of the laws".   The Court waited 60 years before it corrected its mistake.

The issue isn't whether or not homosexuals can marry, but what the definition of marriage is.   States allow homosexuals to marry members of the opposite sex.  For example, homosexual actor Rock Hudson was married to Phyllis Gates. 
Marriage is a biological activity related to human reproduction in which a male and female form a relatively permanent union for the purpose of producing children.    Marriage predated governments.   Governments have traditionally regulated marriage largely to help protect the process of adding new members to the society.   For example,  some regulations attempt to insure that fathers provide for their children.   It is common for governments to  prohibit marriage between close genetic relatives to reduce the possibility of children born with genetic defects. 

Some states have decided to humor homosexuals who want to pretend they are normal heterosexuals by allowing them to pretend that a relationship with another person of the same sex is like a marriage.  Failure to go along with this fantasy is not discrimination against homosexuals.   States have no obligation to support such therapy by going along with fantasies.

Providing special benefits for belonging to a couple, such as greater pay or fringe benefits,  discriminates against single people.  Special benefits to heterosexual couples can be justified because such couples can produce new members for society. Two males or two females cannot do so.  

States could allow limited privileges  to those couples [any two adults including close genetic relatives] forming civil  unions, such as joint ownership of financial assets, without being discriminatory  because such an arrangement would be the equivalent of a business partnership and would not give the members of the couple anything of value.

If we are to continue to call ourselves a democracy we must be able to determine the nature of social institutions through a direct vote or through the actions of  our elected representatives.  Allowing judges who never have to face the voters to define social institutions is inconsistent with democratic government.  Only Congress whose members are chosen by the people has the authority to impose a uniform definition of marriage on the states.  Perhaps the time has come for Congress to do just that.

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